Kirsten Ainley

Individual agency and responsibility for atrocity

There is a great deal of concern in contemporary international relations (IR) with evil individuals. Slobodan Milosevic was the “face of evil” for many until attention turned to Saddam Hussein, about whose acts of torture and mass killing George Bush stated: “If this is not evil, then evil has no meaning.”2 Deeply unpleasant characters such as Idi Amin, Pol Pot, Charles Taylor, Ratko Mladic, Radovan Karadzic, Jean Kambanda, Josef Kony, and Osama bin Laden line up alongside these men as enemies of the good in late twentieth-century and early twenty-first-century life. They are held responsible for causing great and unjustified suffering to the innocent, for terrorizing or slaughtering entire populations, and for crimes against humanity on a grand scale. Despite the horrors of the Holocaust and the conviction that such despicable acts would never be allowed to happen again, evil seems once again to stalk the earth.

The International Criminal Court on trial

This article assesses the structure and operation of the International Criminal Court by setting out a case for the defence of the Court, a case for its prosecution and a verdict. Defenders of the Court suggest it has had a positive impact because: it has accelerated moves away from politics and towards ethics in international relations; it goes a long way towards ending impunity; it is a significant improvement on the previous system of ad hoc tribunals; it has positive spill-over effects onto domestic criminal systems; and because the courage of the prosecutor and trial judges has helped to establish the Court as a force to be reckoned with. Opponents of the Court see it as mired in power politics, too reliant on the United Nations Security Council and on state power to be truly independent; failing to bring peace and perhaps even encouraging conflict; and starting to resemble a neo-colonial project rather than an impartial organ of justice. The verdict on the Court is mixed. It has gone some way to ending impunity and it is certainly an improvement on the ad hoc tribunals. However it is inevitably a political body rather than a purely legal institution, its use as a deterrent is as yet unproven and the expectation that it can bring peace as well as justice is unrealistic.

Excesses of Responsibility: The Limits of Law and the Possibilities of Politics

Since 1945 responsibility for atrocity has been individualized, and international tribunals and courts have been given effective jurisdiction over it. This article argues that the move to individual responsibility leaves significant ‘excesses’ of responsibility for war crimes unaccounted for. When courts do attempt to recognize the collective nature of war crime perpetration, through the doctrines of ‘command responsibility’, ‘joint criminal enterprise’ and ‘state responsibility’, the application of these doctrines has, it is argued, limited or perverse effects. The article suggests that instead of expecting courts to allocate excesses of responsibility, other accountability mechanisms should be used alongside trials to allocate political (rather than legal) responsibility for atrocity. The mechanisms favored here are ‘Responsibility and Truth Commissions’, i.e. well-resourced non-judicial commissions which are mandated to hold to account individual and collective actors rather than simply to provide an account of past violence.

The responsibility to protect and the International Criminal Court: counteracting the crisis

The establishment of the Responsibility to Protect (R2P) process and the International Criminal Court (ICC) were seen by many to constitute significant progress in the protection of human rights. However, these institutions are now in crisis, due in large part to their failure to prevent or prosecute recent acute human rights abuses in Syria. There have been two responses to this crisis: the first assumes that the crisis is caused by the current structures of international governance, in particular the power of the United Nations Security Council (UNSC), and calls for radical reform. The second sees possibilities within the current structure and advocates making R2P and the ICC more closely aligned under UNSC control. The article argues that both responses are mistaken and sets out an argument in favour of refocusing on the complementary nature of each institution. The Courts most successful actions have been in exercising the powers afforded by its complementary jurisdiction in situations such as Colombia. Similarly, R2P works more successfully at preventing conflict and changing expectations of acceptable state behaviour than it does at confronting situations in which large-scale violence has begun. The article argues that the ICC and R2P should focus on ‘positive complementarity’ agendas, with the ICC devoting more resources to assisting states to build legal capacity in order to deter future conflict through stronger domestic criminal systems, and advocates of R2P focusing less on intervention in live conflict situations and more on building within states the capacity and resources to protect their own populations.

Evaluating the Success of Transitional Justice in Sierra Leone and Beyond

There has been a great deal of academic work undertaken recently that attempts to appraise the success of transitional justice (TJ) in various post-Conflict states. However, there is little agreement on what counts as success and how it should be measured or judged. The other chapters in this book consider the extent to which Sierra Leone’s TJ processes should be considered a success. I take a step back to focus instead on what we mean by ‘success’ when assessing the impacts of TJ efforts and to examine the problems involved in evaluating transitional justice. My aim is not to provide a Definition of success, as to do so would be impossible, for reasons set out below. Rather, I hope to provoke readers to consider afresh what should count as TJ success and how it should be evaluated.

Transitional Justice in Sierra Leone: Theory, History and Evaluation

The Sierra Leonean civil war was exceptionally brutal; during the conflict, in this small country with just over 6 million inhabitants, an estimated 70,000 people lost their lives and 2.6 million were displaced.1 The war became known for widespread atrocities, including forced recruitment of child soldiers and extensive incidents of rape, sexual slavery and amputations of limbs. In addition to the outward manifestations of violence, the conflict left less tangible but still pervasive legacies. Incidents of localised violence caused deep rifts within many communities, and, in politically marginalised areas, state violence reinforced the mistrust of political institutions and government structures. As many combatants were disenfranchised youth, the conflict featured a high degree of violence targeted against specific authority figures, made relations between generations more fraught and tore apart the social fabric.

The Potential and Politics of Transitional Justice: Interactions between the Global and the Local in Evaluations of Success

Sierra Leone has become something of a touchstone in broader debates surrounding transitional justice (TJ) since its civil war ended in 2002: a site of competing imperatives and Conflicting ideologies and agendas. The country has been the focus of a sustained international effort to implement an ideological-normative TJ agenda and a setting in which TJ practitioners tried to correct perceived past shortcomings. Yet this was not purely a project of ethics or law: international and domestic politics, as this book makes clear, have also played important roles in dictating the opportunities and constraints for transitional justice in Sierra Leone.

From Atrocity Crimes to Human Rights: Expanding the Focus of the Responsibility to Protect

The Responsibility to Protect (R2P) was envisaged by its authors to encompass a wide range of human rights protections. In order to gain state support for the idea of the R2P, its focus was narrowed to the protection of populations from atrocity crimes. This article challenges the ‘atrocity lens’, arguing that the restricted focus is both practically and conceptually flawed. Practically, it has failed to inspire action in situations where there were good reasons to believe that atrocities were occurring. Conceptually, it has led to a counterproductive focus in R2P implementation on conflict and on particular actors within conflict. The article therefore explores the possibilities and implications of stretching the focus of R2P back to the broader vision found within the ICISS report. It concludes that there are significant potential benefits to adopting a ‘human rights lens’ if states are willing to fulfil their pillars one and two responsibilities.