The New Humanitarian Order
Law and Politics in Transitional Societies
Human rights fundamentalists argue for an international legal standard regardless of the political context of the country in question. Their point of view is bolstered by the widespread and understandable popular outrage, not just in the West but throughout Africa, against the impunity with which a growing number of regimes have been resorting to slaughter to brutalize their populations into silence. The realization that the ICC has tended to focus only on African crimes, and mainly on crimes committed by adversaries of the United States, has introduced a note of sobriety into the African discussion, raising concerns about a politicized justice and wider questions about the relationship between law and politics.
In no country is the distinction between legal and political issues self-evident. In a democracy, the domain of the legal is defined through the political process. What would happen if we privileged the legal over the political, regardless of context? The experience of a range of transitional societies--post-Soviet, postapartheid and postcolonial--suggests that such a fundamentalism would call into question their political existence. Several post-Soviet societies of Eastern Europe with a history of extensive informing, spying and compromising have decided either not to fully open secret police and Communist Party files or to do so at a snail's pace. Societies torn apart by civil war, like post-Franco Spain, have chosen amnesia over truth, for the simple reason that they have prioritized the need to forge a future over agreeing on the past. The contrast is provided by Bosnia and Rwanda, where the administration of justice became an international responsibility and the decision to detach war crimes from the underlying political reality has turned justice into a regime for settling scores.
Those who face human rights as the language of an externally driven "humanitarian intervention" have to contend with a legal regime where the content of human rights law is defined outside a political process--whether democratic or not--that includes them as formal participants. Particularly for those in Africa, the ICC heralds a regime of legal and political dependence, much as the postwar Bretton Woods institutions began to pioneer an international regime of economic dependence in the 1980s and '90s. The real danger of detaching the legal from the political regime and handing it over to human rights fundamentalists is that it will turn the pursuit of justice into revenge-seeking, thereby obstructing the search for reconciliation and a durable peace. Does that mean that the very notion of justice must be postponed as disruptive of peace? No.
If peace and justice are to be complementary rather than conflicting objectives, we must distinguish victors' justice from survivors' justice: if one insists on distinguishing right from wrong, the other seeks to reconcile different rights. In a situation where there is no winner and thus no possibility of victors' justice, survivors' justice may indeed be the only form of justice possible.
If Nuremberg is the paradigm for victors' justice, South Africa's postapartheid transition is the paradigm for survivors' justice. The end of apartheid was driven by a key principle: forgive but do not forget. The first part of the compact was that the new power will forgive all past transgressions so long as they are publicly acknowledged as wrongs. There will be no prosecutions. The second was that there will be no forgetting and that henceforth rules of conduct must change, thereby ensuring a transition to a postapartheid order. It was South Africa's good fortune that its transition was in the main internally driven.
South Africa is not a solitary example but a prototype for conflicts raging across Africa about the shape of postcolonial political communities and the definition of membership in them. The agreement that ended the South Sudan war combined impunity for all participants with political reform. The same was true of the settlement ending Mozambique's civil war. Had the ICC been involved in these conflicts in the way it is now in Darfur, it is doubtful there would be peace in either place.