In a recent New York Times editorial entitled, “Courts Can’t End Civil Wars,” Professor Mahmood Mamdani and former South African President Thabo Mbeki argue that courts cannot solve civil wars. They note that civil wars can only be ended by peace talks where former foes sit together at the negotiating table and hammer out political settlements.
Indeed, Mamdani and Mbeki seem to believe that the threat of criminal prosecution can actually stifle peace efforts, presumably as leaders and warlords facing possible life sentences calculate that they have nothing to lose by continuing to fight. In their view, “mass violence is more a political than a criminal matter [and] it is sometimes preferable to suspend the question of criminal responsibility until the underlying political problem has been addressed.”
While the immediate context for their assertions in the New York Times is the catastrophic violence in South Sudan and the international community’s undue “focus on criminalizing the perpetrators of violence,” the arguments are not new. They will sound familiar to anybody who has read Mamdani’s 2008 book, Saviors and Survivors: Darfur, Politics, and the War on Terror. In Saviors and Survivors, Mamdani criticizes the motivations of international efforts to hold perpetrators of atrocities in Darfur liable for war crimes, crimes against humanity and genocide.
These efforts, he argues, are insincere. They are not motivated by justice but rather by politics and more specifically by the West’s imperial aims in Africa and the Arab World. (Interestingly, Mamdani is either silent about or vocally denies the Sudanese state’s own imperial aims, as manifested in its never-ending brutal center-periphery civil wars.)
There has been no justice in Darfur but plenty of failed political talks among those who wield guns.
Presumably, Mamdani and Mbeki perceive the same imperial motivations in the calls for justice against the perpetrators of mass political violence in South Sudan and prefer a peace process that decriminalizes mass murderers and leads to speedy state reconstruction. However, the experience of Darfur over the past decade does not bode well for South Sudan. There has been no criminal justice in Darfur but plenty of failed political talks among those who wield guns. In the meantime, countless unarmed civilians have fallen in the crossfire.
Peace talks among the political elites have not been enough to protect innocent Darfurians from massive atrocities, displacement and rape. Moreover, the 2005 peace agreement that ended the North-South civil war in Sudan did not call for prosecutions of the perpetrators of mass violence in that war. If it had, perhaps the warring parties in Darfur and South Sudan would have thought harder about the consequences of settling their political disputes with mass violence.
Making Sense of Underlying Motivations
Mamdani and Mbeki seem to suggest that if the underlying motivation for violence is political, then the resulting murder of innocent civilians should not be treated primarily as a criminal matter. This cannot be right, legally or ethically. Contrary to their desire to decriminalize politically motivated murder, international law recognizes that some political violence is tantamount to criminal conduct, as well it should.
Consider the analogy to corruption. The roots of corruption are often political, but that does not mean that corruption is not regarded primarily as criminal behavior. Thus, why should politically motivated murder — considered much more ethically reprehensible than corruption — be regarded primarily as political and not criminal? Do they advocate decriminalizing political corruption, too?
There are plenty of domestic and international mechanisms for resolving political differences, other than resorting to mass murder of innocents, mass rape, ethnocide or genocide. Should we not use the threat of prosecution to force political elites to choose an alternative, legitimate and less costly mechanism for resolving political differences?
Mamdani and Mbeki seem to believe that international law — which does criminalize political murder — is a Western notion that does not fit well in the African context. But this cannot be right, either. Many African people, and even some African leaders — like South Africa’s own Desmond Tutu — support international law and institutions established to enforce it, such as the International Criminal Court (ICC).
Citizens in #Darfur and #SouthSudan are demanding criminal prosecutions for atrocities & simultaneously calling for peace talks.
Thus, while despotic African leaders for obvious reasons may reject international law and support withdrawal from the ICC, Mamdani, Mbeki, and other critics have not proved that this is a popular African view. Indeed, independent civil society voices in both Darfur and South Sudan are vocally demanding criminal prosecutions for atrocities committed in those arenas while simultaneously calling for comprehensive and inclusive peace talks. Are these groups of African citizens simply dupes of an imperialist world order whose voices should not count?
Real World Examples
Mamdani and Mbeki point to South Africa, Uganda and Mozambique as examples of the irrelevance of courts in solving political conflicts in Africa — as if courts and settlements are exclusive instruments of peace. However, they do not mention Rwanda and other places, such as Sierra Leone and Liberia, where peace was brought about and maintained through a combination of courts and political settlements.
To be sure, these examples have not been flawless, but they illustrate that achieving and maintaining peace in the aftermath of brutal civil war requires multiple mechanisms, not just peace talks in five star hotels among the political elites and their advisers.
According to Mamdani and Mbeki, criminal trials arising out of civil wars are inappropriate because “in civil wars, no one is wholly innocent and no one wholly guilty.” There is no clear line between victims and perpetrators and one may be a victim one day and a perpetrator the next. Thus, they argue, “to call simply for victims’ justice…is to risk a continuation of civil war.”
In many African civil wars, the line between victim and perpetrator is very clear, such as when innocent women, children, the disabled and the elderly are gunned down willy-nilly, although they have absolutely nothing to do with politics or political warfare. Darfur, South Sudan, the Democratic Republic of Congo and many other civil wars come to mind. A woman who has been gang raped today may tomorrow be a perpetrator? Mamdani and Mbeki cannot be serious.
Most importantly, judicial processes — whether in formal statutory courts or in traditional fora — are a critical means to address victims’ claims, even if they are incapable of making victims fully whole again. After all, nothing will ever make victims of crimes against humanity, mass rape, or genocide whole again. But criminal trials will go a lot further toward redressing the victims’ pain than Mamdani’s and Mbeki’s preferred status quo of power sharing and political agreements among political elites — mostly men with guns — who control the state.
Power, in Sudan and other fascist states, operates by definition on the notion of zero-sum game. Power in such places is rarely compromising or accommodating. South Africa realized change in the first instance because of the Black revolutionary struggle, not because of the lack of legal accountability for apartheid’s architects and defenders. And, yet, there are many Black voices still unheard in South Africa, voices shut out of elite political deal-making.
Criminal accountability in Darfur, Nuba Mountains, Southern Blue Nile and South Sudan — whether it occurs before or after a peace deal — may provide a rare opportunity for the little voices — dare I say victims? — to voice their pain and be heard. They deserve to be heard.
Laura Nyantung Beny is a Professor of Law at the University of Michigan Law School. She is co-editor with Sondra Hale of the forthcoming book Sudan’s Killing Fields: Political Violence and Fragmentation.