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The Business Day
By Nicole Fritz

LAST month, the Special Court for Sierra Leone convicted former Liberian president Charles Taylor of crimes against humanity, war crimes and other violations of humanitarian law. It is the most high-profile conviction by the court and the ruling for which it is likely to be known.

It found him liable not, as the prosecution had charged, on the basis of command responsibility for the gruesome atrocities committed by the Revolutionary United Front and other rebel forces in Sierra Leone during the civil war, or on the basis that he formed a joint enterprise with the rebels, but because he had aided and abetted their acts and had helped plan some of the rebel attacks.

For some observers, this will seem less the resounding condemnation that all the time, effort and resources deployed by the court should yield. And yet Taylor will likely live out the rest of his days in prison, and the many victims of Sierra Leone’s war will now know that the crimes against them did not go unacknowledged.

International criminal justice, particularly in an African context, is an easy target. What dividends does it pay, critics ask. Too expensive, too time-consuming, too far away, they say. Admittedly, some of these criticisms are fairly made. It’s hard, for instance, to make the case that international justice proceedings have any deterrent effect. Does Syrian President Bashar al-Assad go any softer on anti-regime forces for fear of a possible International Criminal Court (ICC) indictment? Does Sudan’s Omar al-Bashir, already the subject of an ICC indictment, make this impending sanction any part of his calculations against South Sudan ?

But we appear to ask of international criminal justice proceedings far more than we ask of any domestic criminal process. Countless studies call into question the deterrent effect of domestic prosecutions and punishments without us ever significantly interrogating the value of these proceedings.

It is the back story to another international law judgment issued last month, that perhaps best testifies to the value of proceedings such as those against Taylor. This case, heard by the European Court of Human Rights, concerned the Katyn massacre, a Second World War atrocity in which more than 20000 Polish army officers and other nationals were executed — the crime hidden by burying their bodies in the Russian forests of Katyn. The killings were on Joseph Stalin’s orders after the Soviet invasion of Poland, but the Russians blamed the crime on the Nazis, going so far as to try to have them prosecuted at Nuremberg. Only in 1993 did then Russian president Boris Yeltsin acknowledge that Stalin and the politburo of the Communist Party were responsible for the deaths.

Descendants of the victims attempted to initiate investigations and prosecutions but, in 2004, Russian officials classified most of the volumes gathered in investigations as “top secret” and classified their decision to discontinue investigation as “top secret” too, effectively ending the descendants’ search for accountability.

They approached the European Court for assistance. The court’s judgment is of limited value — it concluded that the time between the crimes (in 1940) and the entry into force of Russia’s obligations under the European Convention (in 1998) meant that it could exercise no jurisdiction in ordering investigation and prosecution. But it is this very lapse of time that makes the case so notable.

Seventy-two years on — several generations gone — the applicants before the court, including a widow, children and grandchildren, seek official acknowledgment of the wrong that was done to their families.

Court judgments tend to be one dimensional, foregrounding the issue at hand. Still, even if every day of the past 72 years has not been only joyless grappling with the trauma of Katyn for these descendants, there is no doubt that it has cast a long shadow over their lives — that their lives would have been made easier by an acknowledgment of what happened, that their husbands, fathers and grandfathers had not simply disappeared.

International criminal justice proceedings will not erase the trauma of international crimes, but its acknowledgement, its accounting, will go some way to easing the suffering and memory of those who endured Sierra Leone’s brutal war — a prospect still sought by many, such as those who, 72 years on, seek reckoning for the massacre of Katyn.

Its justification lies not in it offering a complete salve, but in offering some.

  • Fritz is the director of the Southern Africa Litigation Centre.


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