Punishing Genocide: An Interview with Professor Payam Akhavan

Punishing Genocide: An Interview with Professor Payam Akhavan

Reviewing the themes and issues from the intensive seminar on International Criminal Law

By: Rachel Bryce (4L JD/MGA)


Photo credit: Human Rights Watch: https://www.hrw.org/news/2020/06/23/icc-member-countries-rally-around-court


This interview has been edited for clarity and concision.


Professor Payam Akhavan is a Senior Fellow at Massey College, Member of the Permanent Court of Arbitration at The Hague, and Distinguished Visiting Professor at the University of Toronto Faculty of Law. He was formerly the Legal Advisor to the Office of the Prosecutor of the International Criminal Tribunal for former Yugoslavia at The Hague and appeared as counsel before several international courts. This January at the Faculty of Law, Professor Akhavan led the intensive course entitled “Punishing Genocide: An Introduction to International Criminal Law.”


RB: Thank you so much for joining me to provide an overview of the important and challenging questions raised in our intensive. In our intensive, you expertly wove the themes of peace versus justice and victim-centeredness throughout our discussions of international criminal law’s history, structure, and jurisprudence. Let me ask you, in your view, what tension exists between peace and justice? Do you see one as more important than the other?


PA: Thank you very much. I'm very pleased to be doing this interview and sharing some thoughts on what we covered in the intensive course.

The so-called peace versus justice debate emerged in the context of the United Nations (UN) for the first time with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, because prior to that, the UN had never established such an accountability mechanism. The prior precedent was the International Military Tribunal at Nuremberg, where there probably wasn't much of a peace versus justice issue, because Germany had been vanquished in war. That was more an instance of victor's justice.


In the context of the former Yugoslavia, there was a tribunal established while there was an ongoing armed conflict. So, there were two imperatives — some would say complimentary, others would say competing. One imperative was to bring to justice the perpetrators of ethnic cleansing and genocide, whereas the other was the obvious imperative of achieving a ceasefire and lasting peace, in order to put an end to the violence.


Some were of the view that issuing arrest warrants against political and military leaders who were required, by virtue of their position of authority, whether we like it or not, to agree to any ceasefire or peace settlement, would be a disincentive for them to stop the fighting. Why would you stop the fighting, if at the end, you would end up being prosecuted? A few call this a so-called realist argument — political realism at its best. We may not like the butcher of Bosnia, Ratko Mladić, President Radovan Karadžić, or Milošević. But whether we like it or not, they're in positions of power, and we need to negotiate with them to conclude a peace agreement.


Others were saying that given that the same leaders were the pyromaniacs, in effect instrumentalized ethnic hatred and violence as an instrument of power. What kind of peace would we have if there was no accountability for the crimes that had been committed? Others took, perhaps, to use a term from Johan Galtung, the idea of positive rather than negative peace — that a peace isn't just about ceasefire, but also about creating conditions for sustainable peace and reconciliation and development. This debate would be revisited in many different contexts in the context of Sierra Leone, in the context of Darfur, and even today in the context of Myanmar, where the realists say that we need to not be naively idealistic, and should understand that, in certain instances, it may be better to have imposed amnesia to sweep things under the carpet rather than to insist on justice.


I would add that in addition to armed conflict, the same applied prior to the establishment of the ICTY, in a domestic context, to democratic transitions. In the so-called Southern Cone countries of Latin America, such as Chile, Argentina, and Uruguay, the price for the surrender of power by military rulers was self-imposed amnesty, or in the case of Paraguay, an amnesty that was approved by referendum.


I think that this, in summary, is what the peace versus justice debate is about. It continues to be an issue with the International Criminal Court (ICC). The question we have to ask ourselves is, do we want just a short term peace, or a long-term sustainable peace, and is there an imperative beyond the specific context of a given conflict or country to create systemic change — to transform the culture of impunity in international relations that, in fact, incentivizes and rewards violence?


RB: It comes back to this idea of contextuality, which ties into the second theme of victim-centeredness and the specifics of a conflict and the specific needs for justice within a conflict.


However, these themes are distinct, and I wondered whether we could move to your perspective on the role of victim-centeredness in the international criminal law processes. How might victims be better centered in these processes, if at all? Does this process appropriately meet the victims’ calls for justice?


PA: Well, when we talk about justice, one intuitively turns to the reality of victims and survivors and perhaps at a very fundamental—one concedes primordial—level of human nature, it is the suffering of victims that compels us to seek justice. There is a lot of talk about victims, whether in political, scholarly, or activist circles. But, who is this person called, “the victim”? What is the proper role of survivors in reckoning with the past in situations of collective trauma and systemic violence?


Obviously, it is desirable to ensure that those who are first and foremost affected by this form of violence are given some form of redress. This is an intuitive idea that we have about justice. On the other hand, when we look at criminal justice, punitive justice, as opposed to restorative justice, as opposed to truth, reconciliation, healing, and all these other ideas, we realize that the protagonist in a criminal trial is not the victim. It's the defendant. The process is about the guilt or innocence of the person who is accused. In that context, while one can encourage victim participation and access to justice in the sense that victims should be able to see such a trial and have some satisfaction that a perpetrator has been held to account, the relevance of victims is largely as witnesses. We know that witness testimony is really a very narrow slice of the truth, if you like, of a survivor.


First and foremost, witness testimony has to be directed at the specific defendant in a trial. If someone (other than the defendant) is responsible for your victimization, the testimony, at best, would be relevant to establish a pattern of conduct, but it can by no means result in the conviction of the accused. What you see sometimes is a victim who could testify against what a senior military commander did, by way of pattern evidence, but that victim may be more interested in bringing to justice her next door neighbor who betrayed her trust.


Even where a victim is a direct witness against the accused, the testimony is presented within the structures of examination and cross-examination. In that sense, it is adversarial. It is not about healing or reconciliation. It is a situation where the prosecution tries to get the best possible testimony from the witness and the defense tries to impugn the credibility of the same witness. That is a far cry from a truth commission, where a survivor can speak about how it felt to have lost her child. Her feelings about having lost her child may be largely irrelevant in a criminal trial. But from the point of view of the healing of that survivor, or the wider survivor community, and from the point of view of achieving reconciliation and transforming the culture of hatred and violence, which invariably characterizes such a context, perhaps the truth commission is more susceptible to being victim-centered, so to say, than the criminal justice process.


All this to say, it may be very easy to pay lip service to the idea of victim-centered justice — it's very fashionable, it's very progressive — but in practice, it's a very difficult question. It depends on a multitude of variables.


RB: It is quite complex to imagine justice for the victims when it is within the construct and the constraints of a clear legal process. But turning to Truth and Reconciliation Commissions or other forms of customary accountability and customary justice, and connecting that to the concept of admissibility to the International Criminal Court - How do you see these customary forms of justice perhaps being considered as the complimentary form of justice that is required to be demonstrated before admissibility to the ICC?


PA: Well, as you are aware, the ICC statute sets forth a system of complementarity, whereby the ICC is complementary to national jurisdictions, which means that where the national judicial system is investigating or prosecuting the same person for the same conduct, primacy is given to the national judicial system. The ICC under such circumstances may only exercise jurisdiction, if notwithstanding that investigation or prosecution, the state is unwilling to genuinely impose accountability (i.e. sham proceedings) or where the domestic judicial system is unable to effectively achieve justice because of the collapse of the judicial system.


Underlying the principle of complementarity is the premise that, in some respects, local justice may be preferable to global justice. For practical reasons, the forensic evidence, the witnesses, the victims, the survivors, the society that is directly affected is not in The Hague. It is in that particular location, which often is quite a distance away, both geographically and culturally, from the reality of The Hague. At the same time, there is an element here of local ownership, empowerment, and capacity building, so that a national judicial system is given the opportunity to reckon with the past and to strengthen the institutions which are invariably going to be very seriously compromised in the context of mass violence. No country emerging from crimes against humanity will have a model judicial system; it's very difficult to imagine that.


Your question, though, raises a different issue. What if the model of justice being pursued is not punitive justice, or not punitive justice as we would understand it in the western liberal tradition of a criminal process. This really is a largely untested issue; it has never been the subject of an admissibility challenge in proceedings before the ICC. Perhaps it's a matter of time before it will be. In the first instance, there is an element of discretion that the ICC prosecutor can exercise in determining, for instance, whether she should initiate an investigation if there are domestic efforts, which falls short of the criminal justice process, but which still impose some form of accountability that's acceptable in that society.


Rwanda is a very good example. Because at the end of the genocide in 1994, there were approximately 130,000 people who were put in the prisons of Rwanda. You can imagine that exterminating up to 1 million people in a three month period, in a relatively poor, underdeveloped African country, required hundreds of thousands of willing executioners. So you have hundreds of thousands of potential perpetrators to prosecute. It's simply impossible to prosecute all of them, and, bearing in mind that international trials are very costly and time-consuming, only a small fraction of those perpetrators could be prosecuted in The Hague. By necessity, domestic mechanisms have to play an important role.


The question is, what if, in that particular culture, Rwanda, there are traditional forms of justice such as Gacaca courts, which means literally “justice in the grass?” These resemble in some respects Indigenous sentencing circles where you are called to account before your own community. It is the intimacy of local communal belonging that allows for a justice mechanism, which in our modern impersonal cities would be unthinkable because of the widely divergent context. The Gacaca is an interesting model, because it wasn't just traditional Rwandan justice, but there was actually legislation establishing these mechanisms and giving them a quasi-punitive dimension, which actually, was not consonant with the tradition as it existed historically.


My own sense is that, by necessity, the ICC will sooner or later have to accommodate other forms of justice, so long as they fulfill the basic rationales of retribution or deterrence, or even wider goals of healing and reconciliation, which we would not ordinarily relate to domestic criminal justice but which, in the context of mass violence, may make more sense as one of the purposes of punishment.


It's always a delicate balance between accommodating the local needs and realities without compromising the systemic needs of eradicating a culture of impunity at the global level. Once we start making exceptions in this or that country, that could incentivize tyrannical leaders in other countries to negotiate their way out of some form of accountability.


A Truth and Reconciliation Commission, however, I think is the most problematic [in this context], because Truth and Reconciliation Commissions, for the most part, are victim-centered - to go back to your prior question - and they're really largely about the stories and lived experiences of survivors. It may be, as was the case in South Africa, that perpetrators are given the opportunity to gain immunity by testifying and confessing to their crimes, which could be seen as some form of accountability. Once again, one would have to really think about the underlying purposes of criminal justice to determine whether a modified version of a truth commission, which imposes some measure of accountability, should satisfy the complementarity principle.


I will just end on one note, we know also from the jurisprudence of our own Supreme Court in Canada that the two distinguishing features of criminal justice are sentencing, basically a term of imprisonment, and stigma. Stigmatization itself is seen as a form of punishment, independent of imprisonment. In that context, it is not inconceivable that public shaming, not necessarily of individuals, but of forms of conduct could be seen as a form of criminal justice as well.


RB: Thinking about the future of international criminal law and perhaps expanding our understanding of justice and justice-seeking processes, I would like to push further and think about changing areas and exciting or new directions that international criminal law will be taking in the next decade or two. What are you looking at? What do you see as a burgeoning or exciting area?


PA: I would say that there are two levels at which the idea of eradicating a culture of impunity operates. One is the global, the other is the local. The two, while existing on somewhat different planes, are very closely related. One can either reinforce or undermine the other.


At the global level, we now have, since 1998, the ICC Statute. At long last,  we've achieved what was dismissed for so long as a far-fetched fantasy that would never come to pass. We shouldn't take for granted that we have an ICC in the Hague today. Nonetheless, the institution is still fledgling; it is weak; it is under-resourced. There are many challenges with competence — a bureaucratization of an institution that is often very distant from the reality of societies that have experienced these forms of collective violence. There's significant room to improve the ICC in its internal functioning by making it a more efficient, professional organization that is more connected to the realities of these sorts of sites of sorrow across the world, which are often out of sight, out of mind in a big bubble. This goes back to the problem of paying lip service to victims, but not really engaging with them in meaningful ways. But I think the most central aspect of the ICC is the support of the international community.


The international community, in particular powerful states — the United States, Russia, China, India — these countries have to ultimately lend their support to the ICC in order to make it effective, even if they're not State Parties to the ICC Statute. There has to be buy-in by powerful actors so that the ICC can slowly be mainstreamed. In the culture of international politics, we need to shift our politics away from these sorts of myopic Machiavellian calculations towards what we call, perhaps in an antiseptic fashion, a rule-oriented international order. Rule-oriented international order sounds very functional and very manageriain the discourse of global governance. But when we're dealing with these fundamental principles of international law, it is really about bringing to the surface a core global ethos, rather than simply adopting a managerial model as we would in respect of trade and finance, and other forms of transnational relations.


I would say that popular movements are going to be very important. We've now seen, in the era of populist hatred and xenophobia, the dangers of apathy — when people are indifferent and ignorant of what is going on around them. Just as a culture of accountability is contagious — to borrow a term in the midst of the pandemic — impunity is also something that spreads like a virulent disease. We may have thought that we in the Western, liberal world are somehow immune from what happens in all those “other countries” that experience populist hatred and demagogic leaders in times of turbulence, but we've now had a wake-up call. Perhaps it's good that we've had a wake-up call. In a sense, our foreign policy and our domestic political culture are connected to one another. When we hold our own leaders accountable, by extension, our foreign policy should also be supporting global institutions that aim to achieve the same accountability of global leaders.


Another dimension is to realize that, beyond feel-good activism, justice is actually essential for peace and security. We need to redefine political realism. Is it realistic to say that we will allow people to commit genocide with impunity and at the same time to say that we will achieve peace and stability, that we will be able to prevent mass migration, organized crime, environmental destruction, the spread of terrorism, and a whole range of other issues which are intimately connected with failed and fragile states? Once we begin to understand the sort of inextricable interdependence of humankind — not as a distant poetic dream, but as an inescapable reality, which only the foolish can ignore to their detriment — then I think the viability of the project of justice, whether at the local or global level, will begin to be perceived in a very different light.


This is a very long answer to your question. What I see happening in the coming years is not so much that there will be some new mechanism or new concept or theory, but that we will hopefully be able to create a global constituency, both at the grassroots and elite level, that begins to take accountability seriously.


RB: Thank you, that's an excellent summary of an excellent seminar and a bright point of hope to end on. Is there anything else you would like to add?


PA: Just that I am just very sorry it wasn't possible to teach the seminar in person and to get to know all the outstanding students who I could only see as an image on my screen. Hopefully another time.