The Field of Exception/the Field of Exclusion — Reflections for Martti Koskenniemi

Editors Note: This post was originally posted on EJIL:Talk! as a comment by Pål Wrange LLM, PhD (Stockholm) in response to last week’s discussion on Prof. Koskenniemi’s article. Mr Wrange, Principal Legal Advisor on public international law at the Swedish Ministry for Foreign Affairs, is currently on leave of absence and working as a consultant in Kampala

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 I presently live in Uganda, and have since 2007 been involved in various aspects of the peace process between the Government and the Lord’s Resistance Army (LRA). As many readers of this blog will know, in 2005 the ICC handed down five arrest warrants against Joseph Kony and other commanders of the LRA. These arrest warrants were extremely controversial in this country, partly because they were said to derail the peace process, partly because they did not correspond with many people’s perception of justice, and partly because they were felt to constitute a heavy-handed intervention by ‘global governance’. While I believe that neither of these points is completely wrong, let me also say for the record that I think that the decisions to request and issue the arrest warrants were right (which is not to say that the ICC could not have done things different, and much more sensitively). Be that as it may, the important point in this context is that the ICC has been quite central to the peace debate in Uganda ever since the ‘self-referral’ by the Government to the ICC became public in 2004.

So, there is a peace-process, fledgling for sure, but still holding real prospects for peace. And then there is a threat to this peace-process, in the form of a prosecution by an international body. No one will lay down his arms if that means going to jail. Now, how do you think about this problem? A human rights issue? An international humanitarian law issue? An issue of the recently formed – and now fully established — field of international criminal law? An issue of conflict resolution? An issue of domestic law (criminal law or constitutional law)? Or perhaps an issue of transitional justice?

 It is obvious that the mere choice of field from which to analyse situation does not answer any questions. For sure, human rights law provides that the government has a responsibility to enforce human rights. But it also says that there is a right to remedy – which might be easier had as a part of a peace-deal – as well as, perhaps, a right to peace. And what about the economic and social rights of the nearly two million people displaced at the height of the conflict – aren’t they actually more important than the duty to prosecute?

 But it is equally obvious, that the choice of field does suggest answers. Those engaged on the battlefield invoke academic fields, and the choice of academic field is also a choice between different interests, world-views and allegiances. The main human rights watchdogs have all emphasised impunity as a major problem and criminal accountability as a solution. And of course, an international criminal lawyer seems to have little choice but to call for prosecution. By contrast, people involved in ‘conflict resolution’ have called for various measures, from ‘buying off’ the LRA commanders to massive reconstruction of the conflict-affected areas, and they have had no problem in calling for amnesty and other ‘unprincipled’ measures, as long as peace is in sight. I have even heard the local ambassador of one of the starkest supporter countries of the ICC lament the existence of the ICC as a complicating factor in peace negotiations.

Of course, debates of this kind can become dialogues of the deaf – the paradigms just don’t hook into one another sufficiently. In fact, it has sometimes felt like the peace vs justice debate, of which Uganda has been a showcase lately, escalated into conflict between peacemakers and justice-defenders. But it does not have to be that way.

 In Uganda, the ICC arrest warrants were a starting point – if not the starting point – of the peace talks in Juba 2006-2008. They were accepted as facts – unfortunate facts, according to some people, but facts, nevertheless. The subsequent Juba accords came to contain a sophisticated scheme for dealing with these arrest warrants (through complementarity), as well as with the accountability and reconciliation matters at large (The agreements are available here). Some researchers call this a catalyst effect – the arrest warrants provided an opportunity to create things that were latent, but which otherwise would perhaps not have been created.

This whole discussion has to a quite large extent been framed in the terms of a recent field – transitional justice (TJ). TJ overlaps both conflict resolution (a pragmatic social science field, related to peace and conflict studies) and international criminal law, and has practitioners from both fields and some others as well (all of them progressive and humanitarian, of course). The paradigm of this new field is, naturally, the subject of quite some contestation (like ‘transition from what to what?’), and its regime of truth is far from established. TJ does, however, have a set of open assumptions which allow theoreticians and practitioners from different origins to debate issues (like: ‘there should in principle be criminal accountability, but in a transition there must be exceptions’). And the interesting thing is that it appears hard to think of TJ as imperialistic, since it defines itself as a field dealing with exceptions, and localised ones at that.

 Of course, TJ is not a purely legal field, and is thus not really a sub-field of international law. But that impurity is not unique to TJ. Is not trade law informed by macro-economic theory? Is not human rights informed by ethics? Is not international humanitarian law, in addition to ethics, also informed by military strategy and techniques? What matters here is that debates in the TJ field have direct impact on the application (or not) of international norms and legal texts.

 In Uganda, TJ has come to provide a convenient and generally accepted way of talking about peace and justice-issues. It offers a more open space than, say, international criminal justice, and its few assumptions are generally accepted in Uganda (like the relevance of both peace and justice measures). Whether this acceptance was because of the turn taken by politics (the course of the Juba peace talks) or because of smart interventions by people who knew how to rephrase the debate, I do not know. What is clear is that TJ has become the established mode of speaking of these matters. The Government has formed a Transitional Justice Working Group to implement the Juba accords in accountability and reconciliation, civil society in the conflict-affected areas have formed their own Northern Uganda Transitional Justice Working Group ICTJ, other organisations or institutions involved (like the Refugee Law Project at Makerere University) consciously label themselves as transitional justice agencies or at least as agencies which also have a TJ agenda, while development partners (‘donors’) meet to discuss TJ matters. While I suspect that both those who want nothing short of comprehensive prosecutions and those who were willing to give Kony amnesty, a farm and bodyguards feel a bit uncomfortable in this frame, it has enabled Uganda to move forward (which is not to say that TJ will be equally successful everywhere).

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 The most moving part in From Apology to Utopia is no doubt the last ten pages, in which Martti explains how the diplomat-international lawyer is torn between his identity as a Grotian cosmopolite and that of a national bureaucrat. I have always found that picture very striking, and it has helped me feel comfortable in my dual identity as a critical academic and a practicing government lawyer.

 The diplomat can, of course, be a tragic figure if she cannot resolve – or rather mediate — that contradiction. But the diplomat (at least as an ideal type) can also be a hero. Typically, she is a jack of all trades, though a master of none. That could be put to her advantage. By cruising between the specialised fields, listening to all but paying tribute to none in particular, the diplomat forms her own opinion, based upon experience and common sense. She understands, and ideally also speaks, several idioms, and can see how they can inform each other (in spite of being, perhaps, based on incommensurable theories).

 She can ask the basic questions about real people and real suffering — Who suffers and how? What can we do about it? — while knowing deep down that even these basic questions, and their answers, are framed in language that may be inaccessible or appear biased to her. (Should one always expect that those who suffer actually want something do be done by a ‘we’ that has also been complicit in so may of the crimes committed against them? At what level can a modern person understand – and accept? – that one of the main fallouts of the war in Northern Uganda has been the proliferation of ‘cen‘, bad spirits?)

 A diplomat – often a ‘manager’ – always has to ask ‘what will work?’. But she also has to be critical about the questions – work for what and for whom? And she should recognise that there are bottom lines – that there may be some principles and interests that go beyond this conflict, this suffering, these people. The new field of transitional justice takes these issues seriously, and at least for now – when the congregation is still forming, and no scriptures have been canonised – the right questions can be asked. But that may change. Just as the diplomat, perhaps free from academic allegiances, always acts under certain assumptions (the state is given, like the necessity to respond to instructions from its capital), there are things which cannot be accommodated in the TJ framework (like a golden hand-shake to the bad guys or reliance on the good will of a supreme being). And who knows who will enter the field in the future in order to appropriate it, or who will be in charge of the ministry for foreign affairs next year?

 No one is free, and no one can know and even less understand the whole story. When a decision has to be made, it will be based on an incomplete basis by a fallible person. The best we can expect, be it from the members of the Government’s Transitional Justice Working Group or the diplomats that urge it on, is that they exercise judgment to the best of their ability. Judgment can be reconstructed – as in the written judgment in which a judge justifies her ‘hunch’ – but it is not logical. It is, though, informed by law and many of those ‘other’ sciences. And, even more crucially, it should be guided by that sensitivity to false coherence that Martti’s writing has always taught us.