from the May 12, 2005 edition -

When war-crimes prosecutions are counterproductive

By Helena Cobban

CHARLOTTESVILLE, VA. - Too many countries around the world - now, sadly, including Iraq - are mired in deep-seated conflict.

In seeking the best ways to help the people of these nations escape this violence and rebuild secure lives on a basis of hope and equality, are prosecutions of suspected perpetrators of war crimes actually helpful or not?

We can take some valuable lessons from Africa, while we also note some of the vast challenges that remain there.

In southern Sudan, grave ethnic conflict has killed some 1.5 million people over the past 15 years. But in January, Sudan's government and the main southern insurgents concluded a peace that shows a good chance of working out.

Crucially, under this peace agreement, no former combatants from either side will face prosecution. Instead, they'll have a choice: Many will receive funding to help them leave the fighting forces and return to civilian life, and the rest will be retrained into new, cooperative peace-guarding units.

Should international funds really be used to support the demobilization and resettlement of former fighters, rather than to launch prosecutions against the war criminals amongst them?

My answer is a clear yes. This is an approach that has succeeded in building stable peace elsewhere, including in Mozambique since 1992.

Meanwhile, the country in Africa that has received the greatest investment in international criminal prosecutions, Rwanda, remains trapped in the resentments of the past - and also in continued, extremely harmful fighting inside the neighboring Democratic Republic of Congo (DRC). An estimated 3.8 million people - DRC nationals and Rwandans - have died in the fighting in eastern DRC since 1998, and Rwandan government troops operating inside DRC have been responsible for much of the violence.

The special international court established by the UN in 1994 to try suspected war criminals and perpetrators of genocide in Rwanda has gobbled up more than $1 billion of international funds - but it has completed the trials of first instance of only 25 indictees. That's a per-case cost of $40 million.

Rwanda's people give the court very low grades indeed and say it's irrelevant to their current concerns. One executive told me not long ago that "if they took just one year of the budget from the international court and put it into social programs inside Rwanda ... it would be much more helpful than what they're doing at the court."

The comparative records of Rwanda and Mozambique in the past dozen years challenge much of the conventional wisdom in Western nations about what needs to be done to end cycles of violence in war-torn countries. Westerners tend to put a lot of faith in criminal prosecutions as a way to end "impunity" and establish rule of law.

But many - perhaps most - of the people around the world who have actually lived through periods of mass violence say that under such circumstances it is virtually impossible to make the kinds of clear distinctions between "perpetrators" and "victims" that a criminal-court system relies on.

Many of the perpetrators of such violence - especially child soldiers - have also been victims; and many of the "victims" have been perpetrators as well.

It therefore often seems wiser to view all those individuals who have been closely exposed to atrocious violence as "survivors" of the violence and to focus on reintegrating them into a functioning civilian society, rather than to go through the very costly and always divisive business of launching prosecutions.

That was what two dozen key community leaders from violence-plagued northern Uganda were urging in April when they sent a delegation to The Hague to meet with Luis Moreno-Ocampo, the chief prosecutor of the UN's new permanent International Criminal Court.

Some months earlier, Mr. Moreno-Ocampo announced he was launching a formal judicial investigation into the chronic violence in northern Uganda - the kind of investigation that would normally result in indictments.

But the community leaders, who included two tribal chiefs, an Anglican bishop, and a number of high-ranking women leaders, urged him to hold off.

"When we talk of arrest warrants it sounds so simple," one of the chiefs told The New York Times. "But an arrest warrant doesn't mean the war will end."

And ending the war was what these Ugandan community leaders sought above all.

Uganda, Darfur, eastern DRC, Sierra Leone, Ivory Coast, Iraq, Nepal ... there are so many parts of the world where human lives and hope are being needlessly chewed up by war. When will the world's most powerful governments pay some real attention to ending that suffering? And when will they start to listen to people in societies that have successfully escaped from deep-rooted, atrocious violence to find out what has actually, and affordably, worked for them?

Helena Cobban is working on a book about violence and its legacies.