In an opinion piece article published in the New York Times on 5^th February 2014 and titled “Courts Can’t End Civil Wars” Thabo Mbeki[1]  and Mahmood Mamdan[2] make an argument about the place of courts in post conflict situations[3]. In the article the writers argue that courts have little, if any role, to play in post conflict situations. Rather than dealing with the messy issue of justice and accountability for the perpetrators, they argue that the international community ought to forget the past and move on to building a better society. In their words, “rather than prioritizing political reform, the international community tends to focus on criminalizing the perpetrators of violence.” They then distinguish between mass violence from criminal violence. The former, they say, require a political rather than a criminal law solution. “What we need is a political process driven by a firm conviction that there can be no winners and no losers, only survivors.”

However, the two writers ignore the obvious: the role of courts is not to end civil wars. Neither are the courts there to heal political divisions or to “inaugurate a new political order”. No.  Courts exist in order to bring justice to the victims. To hold perpetrators to account.  It is therefore, in my view, wrong to assign to the courts a function that was never theirs; to grade them on a test they never took.

Second, the international community has rarely given the due process of the law the necessary consideration. In fact, on the contrary, it is the political reality (that the writers advocate for) that has always been a hindrance to justice. Thus impunity has set into our leaders’ minds. “What will they do to us? They have long forgotten about the Armenians” argued Hitler. It is only recently that there has been a push for some form of criminal accountability TOGETHER WITH political reform.

Third, the African Union withdrawal push from the ICC was because the ICC had indicted one of their own. Actually, make that two of their own. Period. The “deficiencies of the international criminal justice system” were simply a convenient excuse. The various contradictory positions taken by the African Union and its members on this issue bear me out.

Fourth, the assumption of Nuremburg holds true: no one, no matter how high a position he holds, should escape accountability. Because the victor and the survivor have to live together after the violence it is imperative for them to settle scores. In South Africa, as the writers point out, this was through a Truth justice and Reconciliation process. Fair enough.  However, in the absence of this option, criminal accountability through the court system is the next bet. Interestingly, the writers cite only three countries (South Africa, Uganda and Mozambique) as a supposed representation of the reality in the entire African continent. What of Sierra Leone, Liberia, Cote d’Ivoire and Rwanda? (where criminal accountability is working).

“To call simply for victims’ justice, as the I.C.C. does, is to risk a continuation of civil war” they write. Really? This sounds like a quote from the books of the perpetrators. It is part of the lie that leaders propagate to their communities-that they are their community & their community is them. That if they are plucked out then out goes their respective communities. I am not against political reform (“let us now hold hands and hug for the cameras” kind of stuff) but this should be done TOGETHER with criminal accountability.

Finally as a friend told me, everyone suffers from some form of historical injustice. However,  not everyone goes out to kill or rape his neighbor because of supposed historical injustices. The ones who do must therefore be punished.