The UN Mapping Report came out a couple of weeks ago, with the much-tantrumed-about allegations of genocide intact. (Toned done a bit, but impressively extant.) Naturally, this has led a lot of people to conclude that what the DRC needs; more than security from the threat of violence, a competent police force, a functioning road network, protection of property rights, and access to clean water; is a mob of international lawyers traipsing about the place.
Whether or not you think the call for Cause if not, I’ll just take my peace with a side of fries, please” debate.sounds totally reasonable or like so much crazy sauce depends on which side you're on in the great “No peace without justice” vs. “Does justice comes free with peace?
If, like I do, you love peace, french fries, and justice, you may not know where to come down on this. The argument of the pro-trials folks (made recently by international justice A-lister Reed Brody here) is a viscerally compelling one; it makes a certain amount of intuitive sense that impunity breeds atrocity and that allowing war crimes to go unpunished will only result in more war crimes. For a lot of people, the theoretical appeal of this argument, coupled with the sense that it’s a moral imperative to punish guilty parties, is enough to justify a push for war crimes trials.
Me, I like my theories backed up by a bit of evidence. Unfortunately, in this case we don’t have any. International war crimes trials are a relatively recent phenomenon and we just don’t have the kind of data necessary to begin to draw informed conclusions about what benefits trials have and how they produce them. There is some evidence, however, that war crimes trials may exacerbate existing tensions and potentially trigger or prolong conflict. While the argument, mostly advanced by governments and diplomats in the region, that an accountability exercise would not be worth the instability it could produce might sound self-serving (after all, they weren’t the ones getting massacred), they may have a point. Consider, for example, the effect that the backlash to ICTY prosecutions had on the transitional process in Serbia.
In the absence of evidence, a highly plausible theoretical account of a deterrent effect might be enough to offset the potential risk of worsening the violence in the Eastern DRC. But the deterrent effect of criminal punishment is a contested concept even in domestic criminal law. In the international system, where we have nothing approaching the level of certainty of punishment and sentencing severity that arguably produces in a domestic system, a reliable deterrent effect is that much less likely.
Without deterrence, the argument for pushing for immediate war crimes trials rests on the assumption that the moral imperative to punish the guilty demands punishing them instantly upon discovery of the crimes. Or rather, instantly upon publication of an official report detailing what we’ve all known for upwards of a decade. I’m just not sure that’s enough to justify the risk.