ICJ-July2013 Peace Through Law the Utopia

7/27/2019 ICJ-July2013 Peace Through Law the Utopia

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European Security Review

International criminal

justice: the EUs strategy

for reconciliation and

peace

ESR 68July 2013

July 1st 2013 marked the beginning

of the transfer of the International

Criminal Tribunal for Former

Yugoslavias responsibilities to the

UN Mechanism for International

Tribunals. Twenty years after its

establishment, the ambitious UN

Tribunal started its gradual closuring

process. It is thus time to take stock

of international criminal justice, by

devoting an in-depth reflection to its

contribution to international peace.

The conclusion is clear: alone,

international criminal justice does

not contribute to reconciliation of

peoples or peace; it is therefore time

to rethink the illusory ideology of

peace through Law. Such a

reflection leads to question the role

of the EU as it has proved to be a

strong proponent of international

criminal justice. Why has

international criminal justice beenunable to achieve reconciliation?

What are the consequences for the

EUs own policy?


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International criminal justice : the EUs strategy for reconciliation and peaceESR 68 2

Introduction

In July 2012, the International Criminal Court (ICC) painfully celebrated its 10 th

anniversary. In May 2013, it was the turn of the International Criminal Tribunal for Former

Yugoslavia (ICTY) to celebrate its 20 th anniversary. In addition, July 1st 2013 marked the beginning

of the transfer of the ICTYs responsibilities to the UN Mechanism for International Criminal

tribunals (MICT), a process which was already initiated as regards the International Criminal

Tribunal for Rwanda (ICTR). It is time to take stock of international criminal justice, particularly

with regard to the aim assigned to it to contribute to the restoration and maintenance of

peace, as stated in both resolutions of the UN Security Council establishing the ICTY and the

ICTR1. We should not forget that the UN Security Council, to justify its authority to create both the

ad hoc tribunals under the Chapter VII of the UN Charter, had to link international criminal justice

and peace and security. In this context, the ideology of peace through Law has been

gradually developed. The Rome Statute establishing the ICC in is line with this approach. Its

Preamble states that grave crimes threaten the peace, security and well being of the world.

The underlying equation of the ideology of peace through Law is simple: international crimes

are a threat to international peace and security; therefore, international criminal justice should

promote national reconciliation which would help to political stability and peace.

As highlighted in Articles 3 of the Treaty on the European Union, the Unions aim is to

promote peace and stability; not only within it, but also in third countries, especially in

neighbouring countries. Combined to a traditional emphasis on the law-based state including

an unwavering faith in justice, the European Union (EU) has proved to be a strong proponent of

the aforementioned ideology of peace through Law. In this perspective, international criminal

justice has become an integral part of the EUs strategy aiming to guarantee peace. Financial

and technical support to the ICC, bilateral political dialogue , the insertion of an ICC clause in

the Cotonou Agreement as well as the insertion of the ICTY conditionality in the enlargement

process of the Balkan countries, are all initiatives established by the EU to promote and

demonstrate its commitment to international criminal justice.

1 United Nations Security Council, S/RES/827 (1993), 25 May 1993, establishing the ICTY and S/RES/955 (1995), 8 November

1995, establishing the ICTR.


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However, the implementation of international criminal justice which has experienced a

remarkable expansion over the last 20 years has revealed that the ideology linking internationalcriminal justice, reconciliation and peace was somewhat idealistic. Indeed, and despite the

commitment on the part of the international community, especially the EU, international criminal

justice has failed to achieve national reconciliation and political stability in post-conflict

countries. There is no objective evidence that international criminal courts have a positive effect

on reconciliation. The whole intellectual construction of the ideology peace through law is

completely theoretical, not to say political, and absolutely not evidence based. In this

perspective, the EU seems no longer able to justify its policy in favour of international criminal

justice by arguing that it promotes international peace. However, such a failure does not mean

that there is no link between justice and reconci liation. The error has been to copy and paste

the traditional model of retributive justice to international criminal justice, while assigning to it a

mission outside its normal field of competence, namely, restoring peace. To effectively influence

on national reconciliation and peace, international criminal justice needs to be rethought. In this

perspective, the EU should itself rethink its approach regarding the ideology peace through

Law.

Why has international criminal justice been unable to achieve reconciliation in post-

conflict countries? How can we rethink international criminal justice in order to foster national

reconciliation? What are the consequences for the EUs own policy?

Peace through Law: the utopia

The ideology of Peace through Law

International criminal justice is composed of two elements. Firstly, it consists in specific

legal institutions established to judge alleged perpetrators where states are unable or unwilling

to investigate and punish crimes within their jurisdiction. In other words, international criminal

justice is, and should stay, an alternative justice. Secondly, as not all crimes can be addressed

at the international level, international criminal justice has established a set of rules based on the

assumption that some offences are so serious (torture, slavery, terrorism...) that they are


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universally recognised as criminal acts and, should be dealt with by international courts. These

acts have been historically classified in three categories of international crimes: genocide,crime against humanity and war crimes2.

What is reconciliation? It is an ongoing process whereby groups undertake jointly to

examine the deep historical roots of distrust that fuel tension, and move gradually from a posture

of confrontation to one of co-operation and even friendship3. In this perspective, reconciliation

is always marked by realpolitik. In Europe, the Elyse Treaty (1963), enshrining the Franco -

German friendship, was above all the result of Charles de Gaulles and Konrad Adenauers

personalities.

What is the link? According to the jurist Hans Kelsen, the jurisdictional model is the best

suited to solve conflicts. Applied to armed conflicts, international criminal justice would have a

double purpose: a judicial one (punishing and delivering justice), but also a political one. Its

political purpose would consist, inter alia, in the restoration of peace, which requires

reconciliation between formerly enemy peoples. Reconciliation therefore requires first and

foremost an acknowledgement of past wrongdoings and the conviction of perpetrators of such

wrongdoings. What better way to mediate a conflict than an impartial judicial decision?

However, international criminal justice has, in practice, failed to demonstrate a real link between

justice and reconciliation. The following part will focus on the ICTY and the ICTR. It should be

noticed here that it is possible to doubt that ICTY and ICTR judges and prosecutors really

expected, in their daily work, to reconcile populations torn apart by the inter-ethnic armed

conflicts that were experienced in Rwanda and the former Yugoslavia. The ideology peace

through Law has been mainly highlighted by civil society , politics, and not by experts in

international criminal law.

2 The Article 5 of the Rome Statute establishing the International Criminal Court highlights a fourth international crime: the

crime of aggression of which the definition remains unclear.3 Matthew Rojansky, Historical reconciliationMending the rifts , in Security CommunityThe OSCE magazine, Issue 2,2013


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Justice for whom?

On 10 April 2013, Vuk Jeremic, President of the United Nations General Assembly,

convened a thematic debate on the role of international criminal justice in reconciliation

processes, during which international criminal mechanisms were shaken up, especially by

representatives of countries subject to international criminal justice. International criminal justice

is in a crisis with regard to fostering national reconciliation in post-conflict situations, Tharcisse

Karugarama, Attorney-General and Minister for Justice of Rwanda, said4. If international criminal

justice is seen as a justice to serve all humanity, it should above all be a justice for countries and

populations affected by commissions of international crimes. The work of international criminal

tribunals cannot contribute to reconciliation and thus to peace, if local politicians and

populations do not rally to it. On this point, international criminal justice has failed. Why? It seems

important to recall all the weaknesses which give the impression that international criminal

authorities are isolated fortresses. Their functioning is misunderstood, their decisions are

controversial and their mandates themselves are questioned. International criminal justice also

suffers from having been modelled on domestic, mainly western, criminal justice systems and

from having not succeeded in creating a new and independent justice system. However, we

should not forget that if many criticisms can be addressed to international criminal justice, the

recurrent lack of political will to cooperate, often for fear of this justice, is also a major obstacle

to the acceptance of international criminal justice.

With headquarters located in The Hague5, French and English as official languages, and

rules of procedure originally mainly inspired by Common Law etc., international criminal justice

has clearly failed to build a justice close to the populations which are its recipients, despite its

attempts to establish Outreach Programmes6. This is all the more detrimental to the ideology

peace through Law, especially as outreach programmes are insufficient or inefficient. The

4 Sixty-seventh General Assembly, Thematic Debate on International Criminal Justice,

http://www.un.org/News/Press/docs/2013/ga11355.doc.htm5 The international criminal tribunals/courts are all geographically isolated. The ICTY and the ICC have their seat in The

Hague in Netherlands; similarly, the trial of former Liberian President Charles Taylor is held in The Hague; the Special

Tribunal for Lebanon is located in Netherlands as well and the ICTR has its seat in Tanzania.6 For more information about the Outreach Program of the ICTY, see: Janine Natalya Clark, The ICTY and theChallenges of Reconciliation in the Former Yugoslavia, e-International Relations, 23 January 2012, available at:http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/ and Victoria

Vanneau, Le Tribunal pnal international doit-il faire lvnement? ou les paradoxes dune justice pour lHistoire,Socits & reprsentations, 2011/2 n32, p.135-153
http://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.un.org/News/Press/docs/2013/ga11355.doc.htm


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case of the ICTY is certainly the most striking. It seems tragic that twenty years after its creation,

the ICTY has not been successful in reaching out to local communities. This impression of afortress justice is not only due to lack of communication, but more importantly to the

perceived feeling of lack of impartiality of the courts. Indeed, international criminal justice is

synonymous with two-tier justice. As frequently highlighted by international experts,

international criminal courts in practice mean trials of Africans. Similarly, what about NATO

forces criminal accountability? What about UN peacekeepers accountability? Additionally,

international criminal justice frequently seems to be the victor's justice. During the UN thematic

debate on the role of international criminal justice in reconciliation, Utoni Nujoma, Minister of

Justice of Namibia, expressed concerns about a trend within international criminal justice where

only the victor of a warring situation enjoyed justice, while the defeated party faced the

Courts prosecutions7. Since its inception, international criminal justice has appeared to be a

political issue. Indeed, the International Military Tribunals for Nuremberg and Tokyo were clearly a

way to assert the Allies domination on the international scene, as only Nazi and Japanese

criminals were prosecuted. Nowadays, the feeling of a victors international criminal justice

persists. The Serb community with regard to the ICTY and the Hutu community with regard to the

ICTR have the feeling to be discriminated. The recent controversial acquittals of both Croatian

military leaders Ante Gotovina and Mladen Marka indicted for war crimes and crimes against

humanity have strengthened this feeling. Since then, Serbia cooperates with the ICTY only on a

technical level, further weakening the ICTY.

Public opinion, shocked by the terrible wars that ravaged the former Yugoslavia and

Rwanda8, needed to designate perpetrators and victims as required by traditional criminal

justice, bringing out a principle of retribution at any cost9. This is one of the major mistakes

made by the international criminal justice. Similarly, one of the founding principles of Criminal

Law is to individualise guilt; perpetrators are judged on the basis of what they did and not

what they are10

. This principle, seemingly simple in domestic laws, encounters difficulties when


http://www.un.org/News/Press/docs/2013/ga11355.doc.htm8 The media coverage of both wars played an important rolein mobilizing public opinion.9 Expression used by Vitaly Churkin, Ambassador of the Russian Federation to the UN, during the Sixty-seventh General

Assembly Thematic Debate on International Criminal Justice, 10 April 2013,

http://www.un.org/News/Press/docs/2013/ga11355.doc.htm10 Janine Natalya Clark, The ICTY and the Challenges of Reconciliation in the Former Yugoslavia, 23 January 2012,available at:http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/
http://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.un.org/News/Press/docs/2013/ga11355.doc.htm


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applied at the international level as one of the main features of international criminal courts is to

deal with large-scale crimes. This means that a multitude of actors are involved: several ethnicgroups, several states; some people commit the crime, some others order it, and some others

coordinate it. By indicting 161 people, the ICTY has absolutely not been able to prosecute all the

criminals individually, on the basis of what they did; no other international criminal court has ever

been able to do so. A terrible consequence of this approach is that the conviction of one

person stigmatises an entire group which comes to bear a collective responsibility. For practical

reasons, it is impossible to determine all responsibilities in large-scale conflicts such as in Rwanda

and ex-Yugoslavia. Furthermore, it is impossible to reproduce the classic pattern distinguishing

culprits in opposition to victims. Indeed, at the international level, such a distinction means

designating an ethnic group or a specific part of the population as the main responsible for

atrocities committed, and another one as the main victim. It is not the role of international

criminal justice to define if the Hutus and the Serbs should be considered primarily responsible for

atrocities committed in Rwanda and in the former Yugoslavia. Such a distinction leads to a

reverse effect regarding reconciliation by dividing rather than uniting people. Indeed, why

should one trust in a selective justice?

Local populations have lost interest in international criminal justice and do not see it as a

way for reconciliation. The case of the Balkans is the most meaningful. The ICTY is regarded by

local populations as a political institution that is heavily biased against their own ethnic group,

more generally against their own ethnic truths about wars 11. Ethnicity is still really strong. In an

interview given in 2011, Serge Brammertz highlighted that 40%of the population considered

Mladic a hero, more than 50% were against his arrest, and 78% were saying that if they had

information on his hiding place, they would not give it to the authorities12.

Justice for whom? In practice, international criminal justice seems to be directed towards

satisfying public opinion, especially NGOs and media which have strongly criticised what theysee as the international communitys inability to prevent the perpetration of international crimes,

11 Janine Natalya Clark, The ICTY and the Challenges of Reconciliation in the Former Yugoslavia, 23 January 2012,available at:http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/12 United Nations News Centre, Interview with Serge Brammertz, Prosecutor of the ICTY. 9 June 2011 Available at:

http://www.un.org/apps/news/newsmakers.asp?NewsID=33
http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/http://www.un.org/apps/news/newsmakers.asp?NewsID=33http://www.un.org/apps/news/newsmakers.asp?NewsID=33http://www.un.org/apps/news/newsmakers.asp?NewsID=33http://www.e-ir.info/2012/01/23/the-icty-and-the-challenges-of-reconciliation-in-the-former-yugoslavia/


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as well as to protect humanity by combating impunity. But this justice does not appear to work in

favour of the populations who need to make peace.

International criminal justice and reconciliation: a tenuous link

The ideology peace through Law is utopian not only because the populations

concerned do not see the benefits of international criminal courts for the purpose of

reconciliation but also because the ideology is itself built on a utopia.

First of all, the ideology attempts to bring together two opposed ideals: justice and

peace. Indeed, in essence, justice is source of conflict, as justice opposes systematically two

parties, each of them defending its own truth. In international criminal law it means opposing

two parts of the populations, more frequently but not systematically two ethnic groups, and their

own truth as individuals are conceived as representatives of their communities. As highlighted

above, local populations have largely rejected this approach. One of the challenges of

international criminal justice was to reconcile justice and peace by establishing a clear cause-

effect relationship between them. If a correlation can undoubtedly be made between

international criminal justice and reconciliation, it must be recognised that this link is, in essence

and despite all the efforts, very tenuous. This is certainly also a reason why justice, as a means

towards reconciliation, has been misunderstood by local populations.

The enthusiasm induced by the establishment of international criminal tribunals has led

the international criminal judges to develop, clarify and enrich international criminal law. They

set themselves up as protectors of international public order, complying with the collective will of

"never again"13. The strong desire to make international criminal law an autonomous discipline

with a dissuasive effect, recognised by the entire international community and combined to the

high level of expectations of public opinion and the necessity to punish terrible atrocities, haveled it to forget its basics. According to Professor William Schabas, there is relative peace in

former Yugoslavia; however, it could neither be proven nor disproven that the ICTY has had a

13 Franois Roux, La ncessaire invention dun nouvel exercice du droit Entretien avec Franois Roux, Revue TiersMonde, 2011/1 n205, p. 103-115


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role in establishing that peace14. International criminal tribunals are first and foremost supposed

to dispense justice. The mission of reconciliation entrusted to them is merely incidental. If judgesdispense justice properly, the result will be peace or reconciliation. Reconciliation is a possible

consequence of their judgment but not its raison d'tre, rightly observes Franois Roux15. It is

highly theoretical, even unrealistic, to believe that justice can lead alone to reconciliation

between peoples. Reconciliation is a long process achieved through the juxtaposition of several

factors, which vary amongst post-conflict states. In this perspective, it is even not possible to

identify all components of reconciliation. For instance, in ex Yugoslavia, many bilateral issues,

mainly related to borders, persist. On this point, reconciliation is not going to be archived by the

ICTY.

The Organisation for Co-operation and Security in Europe (OSCE) organised a very

interesting discussion about the multidimensionality of the concept of reconciliation. Following

a Workshop held in December 2012 entitled Towards a strategy for reconciliation in the OSCE

area, the participants highlighted that reconciliation can have political, social, economic,

institutional, scientific, regional and international dimensions16. What is the point to clarify the

truth about past wrong-doings if historical textbooks in each community continue to teach a

certain view of the truth? What is the point of delivering justice if no work is done on the moral

aspect of a post-conflict situation, that is to say if the past continues to affect the present and if

populations are not ready to accept conciliation? How can one even deliver justice, if archives

are closed, if investigations and evidence collection are controversial? It is unrealistic to believe

that justice is fully autonomous. Justice does not operate in a vacuum; it needs other disciplines

to be truly effective. Similarly, as pointed out by the OSCE, all sectors of society should be

included in reconciliation processes; media, religious leaders, political parties must play a key

role as they can assist in creating positive images and perceptions and address stereotypes17.

In other words, the ideology peace through Law is simplistic. Reconciliation consists ofa multitude of factors. International criminal justice is one of them, supposing that this justice fits


http://www.un.org/News/Press/docs/2013/ga11355.doc.htm15 Franois Roux, La ncessaire invention dun nouvel exercice du droit Entretien avec Franois Roux, Revue TiersMonde, 2011/1 n205, p. 103-11516Final Report, Workshop Towards a Strategy for Reconciliation in the OSCE Area Key Issues and Recommendations, 16January 2013, available at:http://www.osce.org/sg/9869817 Ibid.
http://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.un.org/News/Press/docs/2013/ga11355.doc.htmhttp://www.osce.org/sg/98698http://www.osce.org/sg/98698http://www.osce.org/sg/98698http://www.osce.org/sg/98698http://www.un.org/News/Press/docs/2013/ga11355.doc.htm


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into a broader perspective. Indeed, there is a double problem of perception. On the one hand,

reconciliation requires both judicial and non-judicial mechanisms. On the other hand, justice isnot limited to a retributive international criminal justice. Therefore, international criminal justice

needs to be rethought. Without this step back on the role of international criminal justice in

reconciliation processes, the ideology of peace through Law will definitely fail. In this context,

the European Union could be a key actor.

Rethinking the equation: what role for the European Union?

If the punishment of crimes is not sufficient to reconcile peoples, what are the

alternatives? The European Union has developed some very interesting mechanisms. Its historical

support to international criminal justice should not be questioned as it is absolutely not desirable

that international criminal justice perishes, despite recurrent criticisms addressed to it. Our

previous demonstration aimed to challenge international criminal justice through the prism of

the ideology peace through Law and was absolutely not a plea against international criminal

justice. It is undoubtedly a progress; it should be a progress; even if in practice, there is no

evidence that international criminal law has a positive impact on impunity and recognition of

human rights. But, to really impact on peace, international criminal justice needs to be

combined to other instruments. On this point, besides its support to international criminal justice,

the EU could enhance its role in reconciliation through its enlargement policy (Balkans) as well as

its foreign policy. Furthermore, the EU could go further by combining its different policies in order

to develop a strategic approach to transitional justice.

Existing European policies: a support to reconciliation

EU support to international criminal justice is first and foremost an unwavering support to

the International Criminal Court. Indeed, the EU is one of the strongest and most consistent

supporters of the ICC18. We will limit ourselves to an overview of these initiatives in order to

18 Jan Wouters and Sudeshna Basu, The creation of a global criminal justice system: the European Union and theInternational Criminal Court, Working Paper n0 24, June 2009, Leuven Centre for Global Governance Studies, availableat:http://www.law.kuleuven.be/iir/nl/onderzoek/wp/wp136e.pdf
http://www.law.kuleuven.be/iir/nl/onderzoek/wp/wp136e.pdfhttp://www.law.kuleuven.be/iir/nl/onderzoek/wp/wp136e.pdfhttp://www.law.kuleuven.be/iir/nl/onderzoek/wp/wp136e.pdfhttp://www.law.kuleuven.be/iir/nl/onderzoek/wp/wp136e.pdf


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demonstrate that the EU has developed a real strategy towards the ICC19. The EUs commitment

is twofold: within the EU itself, and with its relations to third countries. Besides a general consensuson the philosophy surrounding the ICC, EU Member States provide a financial and technical

support to the Court. On 10 April 2006, the EU signed an agreement, reaffirmed and completed

in Stockholm in 2009, requiring from EU Member States to cooperate with the ICC, including by

exchanging information and best practises. Additionally, EU Member States are the main

contributors of the ICC (around 60% of the ICCs budget). The EUs support to the ICC is not only

internal. The EU finances projects aiming to promote the ratification of the Rome Statute and has

initiated bilateral dialogue for this purpose. Additionally, the EU regularly seeks to include an

ICC clause in its agreements with third countries, such as in the Cotonou Agreement 20 and for

a selected number of countries in the framework of the European Neighbourhood Policy21.

EU support to the ICC can be seen as a way to positively influence on the functioning of

the court in order to reduce its flaws and to contribute to the general acceptance of the

jurisdiction of the court, as a consensus around international criminal justice is an indispensable

prerequisite for making it an instrument for reconciliation. However, such initiatives need to be

targeted as they can have both positive and dangerous effects. The EU policy should aim to

improve and expand international criminal justice without influence it. Similarly, supporting the

ICC does not only mean insisting on cooperation with it. In practice, the ICC is becoming more

and more controversial, especially in African countries. This observation should be interpreted as

a necessity to redirect the EU support to the ICC.

In the Balkans, the EU has demonstrated its ability to impact on reconciliation through its

enlargement policy. The EU has not hesitated to impose the obligation to cooperate with the

ICTY as a prerequisite for candidacy. Indeed, to open Stabilisation and Association Processes,

the Balkan countries have to cooperate with the ICTY, including by transferring all defendants to

The Hague and by giving access to documents. EU pressure has been successful as, forexample, Serbia facilitated the arrest of Ratko Mladic. International observers agree that

without external pressure, Serbias willingness and capacity to cooperate with the Tribunal

19For an exhaustive list of the EUs initiatives aiming to promote international criminal justice, see: The European Unionand the International Criminal Court, Brochure produced by the General Secretariat of the Council, May 2010,available at:http://www.consilium.europa.eu/uedocs/cmsUpload/ICC_may%2010_internet.pdf20 Cotonou Agreement: economical agreement between the EU and African, Caribbean and Pacific group of States.21 Armenia, Azerbaijan, Georgia, Egypt, Lebanon, Jordan, Moldova and Ukraine
http://www.consilium.europa.eu/uedocs/cmsUpload/ICC_may%2010_internet.pdfhttp://www.consilium.europa.eu/uedocs/cmsUpload/ICC_may%2010_internet.pdfhttp://www.consilium.europa.eu/uedocs/cmsUpload/ICC_may%2010_internet.pdfhttp://www.consilium.europa.eu/uedocs/cmsUpload/ICC_may%2010_internet.pdf


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would have been much lower22. The primary purpose of this ICTY conditionality was obviously

the necessity to respect international law and to combat impunity. However, this conditionalityshould also be interpreted as a means to exploit former Yugoslavias countries ambition to join

the EU to incite them to recognise the Tribunals work. But, what is the real impact of such an

initiative on reconciliation in the Balkans? First of all, the success of this conditionality

presupposes that justice is accepted as one of the pillars of reconciliation, which is absolutely

uncertain, as demonstrated above. Moreover, such an ICTY conditionality does not tackle the

roots of the challenges of reconciliation, mainly, the desire to improve the living together. Yet,

as highlighted by Ambassador Fletcher Burton, Head of the OCSE Mission in Bosnia and

Herzegovina, there is a link between reconciliation and integration the one reinforce the

otheras citizens share the same aspiration for a future within the EU23. Therefore, reconciliation

within a regional framework can contribute to reconciliation. By opting for a regional approach

in this part of Europe in order to achieve greater stability among conflict states and

normalization of relations between them24, the EU has imposed itself as a key player in the

reconciliation process. In this context, on 19 April 2013, Serbia and Kosovo reached an

agreement on power-sharing in northern Kosovo25. Obviously this is not a panacea for

reconciliation, but it is one of the initiatives, besides and in support of international criminal

justice.

More relevant among EU policies contributing to reconciliation are the instruments of the

Common Foreign and Security Policy (CFSP). Reconciliation within a state or a region necessarily

involves the reconstruction of societies destroyed by an armed conflict. If this reconstruction

requires an acknowledgement of past wrong-doings through the prosecution of authors of

crimes, it also requires new stable institutions and a new legal framework. In this perspective, two

instruments are of particular interest: the Instrument for Stability (IfS) and the Common Security

22Mathias Dobbels, Serbia and the ICTY: How effective is EU conditionality?, EU Diplomacy Papers, 6/2009, Department

of EU International Relations and Diplomacy Studies, College of Europe, available at:http://aei.pitt.edu/11556/1/EDP_6_2009_Dobbels.pdf23Contribution by Ambassador Fletcher Burton, Head of the OSCE Mission to Bosnia and Herzegovina , OSCE, Workshop

Towards a Strategy for Reconciliation in the OSCE Area, Vienna, 18 December 2012, available at:http://www.osce.org/sg/9873524 Lucia Vesnic-Alujevic, European inetergration of Western Balkans: From reconciliation to European Future , Centre for

European Studies, 2012, p.1225 During an exchange of view with the member of the Foreign Affairs Committee in May 2013, the Serbian Prime Minister

gave the impression that the agreement with Kosovo was above all a way to make a good impression with view to a

future integration than a real desire to initiate a process of reconciliation. Parliamentary Update n36, 29 May 2013,Exchange of view with Ivica Dai, Prime Minister of Serbia, available at: http://www.isis-europe.eu/sites/default/files/publications-downloads/epupdate-afet-29May13LA_0.pdf
http://aei.pitt.edu/11556/1/EDP_6_2009_Dobbels.pdfhttp://aei.pitt.edu/11556/1/EDP_6_2009_Dobbels.pdfhttp://www.osce.org/sg/98735http://www.osce.org/sg/98735http://www.isis-europe.eu/sites/default/files/publications-downloads/epupdate-afet-29May13LA_0.pdfhttp://www.isis-europe.eu/sites/default/files/publications-downloads/epupdate-afet-29May13LA_0.pdfhttp://www.isis-europe.eu/sites/default/files/publications-downloads/epupdate-afet-29May13LA_0.pdfhttp://www.isis-europe.eu/sites/default/files/publications-downloads/epupdate-afet-29May13LA_0.pdfhttp://www.isis-europe.eu/sites/default/files/publications-downloads/epupdate-afet-29May13LA_0.pdfhttp://www.osce.org/sg/98735http://aei.pitt.edu/11556/1/EDP_6_2009_Dobbels.pdf


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and Defence Policy (CSDP)26. The IfS finances cooperative actions aiming to prevent or re-

establish a situation of instability such as the development of democratic public institutions andindependent judiciaries or the support to the establishment of national and international criminal

courts and national reconciliation commissions27. On the other hand, the EU has imposed itself as

a key player in crisis management and peacebuilding through the establishment of CSDP

missions. Despite numerous criticisms, especially their lack of ambition, these missions, in

particular those with a rule of law (EULEX) and Security Sector Reform (SSR) mandate,

constitute very interesting initiatives in order to help states to reconstruct and, therefore, to

reconcile populations. The assistance to local authorities and judiciary institutions in the rule of

law area is an indispensable complement, even a prerequisite, to the establishment of a viable

international criminal justice regarding its objective of maintaining peace. As perfectly

highlighted by Article 1 of the Rome Statute, international criminal justice has to be

complementary to national criminal justice, and even be used as last resort. As pointed out by

Serge Brammertz, Prosecutor for the ICTY, the best place to have criminal justice performed is

inside the community which is the victims and perpetrators community, because it is much

closer to their natural environment, it is in their language and respecting their legal

frameworks28. If this fact seems to be unanimously accepted by the international community,

initiatives in this direction are clearly not sufficient.

All these policies combining judicial, political, financial and supportive instruments put

the EU in a dominant position to play a key role in the redefinition of the ideology peace

through Law and, more generally, to contribute to international peace . But, should the EU not

go further?

Going further into a strategic approach to transitional justice

How can one question international criminal justice in its reconciling role without takingan interest in transitional justice? Is transitional justice a buzzword or a real alternative? The

approach adopted by transitional justice deserves an in-depth reflection, including in the

26 For more information about CSDP missions, See CSDP MAP Portal, available at:www.csdpmap.eu27http://europa.eu/legislation_summaries/development/general_development_framework/l14171_en.htm28 United Nations News Centre, Interview with Serge Brammertz, Prosecutor of the ICTY. 9 June 2011 Available at:

http://www.un.org/apps/news/newsmakers.asp?NewsID=33
http://www.csdpmap.eu/http://www.csdpmap.eu/http://www.csdpmap.eu/http://europa.eu/legislation_summaries/development/general_development_framework/l14171_en.htmhttp://europa.eu/legislation_summaries/development/general_development_framework/l14171_en.htmhttp://europa.eu/legislation_summaries/development/general_development_framework/l14171_en.htmhttp://www.un.org/apps/news/newsmakers.asp?NewsID=33http://www.un.org/apps/news/newsmakers.asp?NewsID=33http://www.un.org/apps/news/newsmakers.asp?NewsID=33http://europa.eu/legislation_summaries/development/general_development_framework/l14171_en.htmhttp://www.csdpmap.eu/


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framework of EU external policy. Indeed, transitional justice offers a real alternative by rethinking

and complementing the traditional concept of retributive justice and, more generally, byrethinking the mechanisms leading to a sustainable reconciliation of peoples. The main

weakness of transitional justice is probably that it is not a ready-made solution that could be

applied in the same way regardless of the situation. However, it is also its main strength. By

offering accompanying measures to reconciliation and stability rather than imposing a model of

peace, transitional justice is supposed to respect specificities characterising each country in

post-conflict situation29. This is probably the key for a viable and perennial peace.

Concretely, as defined by the UN Secretary-General, transitional justice consists of both

judicial and non-judicial processes and mechanisms, including prosecution initiatives, truth-

seeking, reparations programmes, institutional reform or an appropriate combination thereof, in

order to ensure accountability, serve justice and achieve reconciliation 30. Therefore, criminal

prosecution is only one means among many to achieve reconciliation. The concept peace

through Law is reversed to give birth to a new ideology: Law for peace.

The EU contributes significantly to promote and implement mechanisms related to

transitional justice, as defined by the UN, through isolated initiatives. Indeed, through its

Common Security and Defence Policy, the EU has become an expert in peacebuilding,

mediation, crisis management, institution-building, security sector reform (SSR) as well as

disarmament, demobilisation and reintegration (DDR). All these areas are closely related to

transitional justice as they can constitute instruments favouring it31. Combined to the EU

commitment towards international criminal justice, the EU has developed a set of instruments

enabling it to positively and effectively influence on reconciliation and peace. However, some

reservations should be expressed concerning the EUs support to international criminal justice.

Indeed, within the EU, all Member States do not always play the game of international criminal

justice, which is an aberration and severely damages the credibility of the EU.

29Hlne Flautre, La justice transitionnelle dans le prisme de lUnion europenne,Mouvements, 2008/1 n53, p.26-3030United Nations Approach to Transitional Justice, Guidance Note of the Secretary-General, March 2010, available at:http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf31 Laura Davis, The European Union and transitional justice, Initiative for Peacebuilding Democratisation andtransitional justice cluster, June 2010, available at:http://www.initiativeforpeacebuilding.eu/pdf/EUTransJustice0610.pdf
http://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdfhttp://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdfhttp://www.initiativeforpeacebuilding.eu/pdf/EUTransJustice0610.pdfhttp://www.initiativeforpeacebuilding.eu/pdf/EUTransJustice0610.pdfhttp://www.initiativeforpeacebuilding.eu/pdf/EUTransJustice0610.pdfhttp://www.initiativeforpeacebuilding.eu/pdf/EUTransJustice0610.pdfhttp://www.unrol.org/files/TJ_Guidance_Note_March_2010FINAL.pdf


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It is regrettable that despite its experience and its support to state reconstruction, the EU

does not have a strategic approach to transitional justice. Indeed, the EU could better put inperspective the initiatives developed within the CSFP and, in particular, within the CSDP, to

formulate a clear policy focusing on post-conflict situations. While EU foreign policy is constantly

questioned, developing a comprehensive approach through a clear commitment to transitional

justice could give a fresh boost to the CSFP. Therefore, in order to make the EU an effective key

player in post-conflict management, the multitude of instruments existing, including expertise

through the European External Action Service, civilian CSDP missions, EU Special Representatives

etc., needs to be better coordinated. In this perspective, defining a comprehensive approach

to transitional justice could be fruitful. However, of course, the definition of such an approach

should be accompanied by the allocation of the necessary resources, particularly with regard to

the supervision and coordination of instruments deployed. The success of the EUs commitment

in the countries in transition following the Arab Spring in particular, will certainly depend on the

ability of the EU to go further in its strategy aiming to promote peace.

Conclusions

The impact of international criminal justice on reconciliation is minimal, and sometimes

even counterproductive. This is due to recurrent criticisms on the legitimacy of international

criminal justice, and, above all, to the fact that reconciliation is not its core purpose.

However, justice can undoubtedly be an instrument serving peace. In this context,

international criminal justice needs to be combined with other instruments to really lead to

reconciliation. Moreover, justice should not be limited to setting up a retributive justice which

would be the guardian of the laws as it is not an end in itself. If at the domestic level a courts

verdict implies the closure of a case, a judicial decision at the international level heavily affects

national reconciliation processes. Contrary to retributive justice, international criminal justice,

therefore, needs to be adaptable and flexible and perpetually rethought.

Despite very encouraging initiatives, the EU does not seem to measure the role that it

could potentially play. The concept of transitional justice appears to be an appropriate way to


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rebuild justice as a means to achieve reconciliation. Through its foreign policy, the EU should

lead a reflection on transitional justice and develop a comprehensive approach to transitionaljustice. Of course, transitional justice should not be seen either as a cure for reconciliation of

peoples and peace. By challenging the traditional acquis on justice, transitional justice has the

merit of asking the right questions about the role of international criminal justice in peace

process and, therefore, can be a very interesting starting point in order to reverse the ideology

peace through Law in Law for peace.

by Lorne Fara-Andrianarijaona

Programme AssociateISIS Europe

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Documents

ICJ-July2013 Peace Through Law the Utopia