Why Decriminalization of Mass Murders, Rape and Sexual Violence, Is Wrong

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Thabo Mbeki -- author says his proposal to decriminalize mass political atrocities is wrong

[Commentary]

In an opinion article in the New York Times, Mbeki-Mamdani argue that civil wars can only be ended by peace talks where former foes sit together and hammer out political settlements.

They suggest suspending questions of criminal accountability until the underlying political problems are resolved. The argument fails to address the issues of the rights of victims and of fair trial.

They ignore successful examples of the use of courts alongside reconciliation, for example in Rwanda. The lumping of victims alongside perpetrators is particularly disturbing for victims of rape and sexual violence.

To decriminalize politically motivated crimes is to give a new lease of life to impunity. It is wrong to advocate for decriminalization of mass murder, rape and sexual violence based on political motivation.

In an opinion article titled “Courts can’t end civil wars” by South African President (1999-2008) Thabo Mbeki and Prof Mahmood Mamdani of Makerere and Columbia Universities published in the New York Times (February 5, 2014), the two argued that civil wars can only be ended by peace talks where former foes sit together at the negotiating table and hammer out political settlements.

They suggested that threat of criminal prosecution can stifle peace efforts, presumably as leaders and war lords facing possible life sentences before international criminal court (ICC) calculate that they have nothing to lose by continuing to fight. Mbeki and Mamdani forcefully argued that the mass crimes committed in armed conflicts are political rather than criminal. They suggest it is preferable to suspend questions of criminal accountability until the underlying political problems are resolved. The argument fails to address the issues of the rights of victims and of fair trial. It is a blueprint for impunity.

At a public debate on February 14, 2004 on the subject “Can Courts end civil wars?” organized jointly by Kenyatta University and the Nation Media Group’s East African University Debate Series, Mamdani argued for decriminalization of mass murder and drew a distinction between what he described as “political violence” from “criminal violence”, Mamdani rejected what he termed a false divide between “victims” and “perpetrators.” and submitted that there is a need for recognition of victims, perpetrators and bystanders as “survivors” who have to live in peace.

The lumping of victims alongside perpetrators is particularly disturbing for victims of rape and sexual violence.  Arguably, Mamdani’s logic that sustainable peace-making requires a “political process where all citizens – yesterday’s victims, perpetrators and bystanders – may face one another as today’s survivors, may politically sound persuasive, but it is disrespectful to victims.

Mamdani’s other argument that “in civil wars no one is wholly innocent and one is wholly guilty [because] victims and perpetrators often trade places and each side has a narrative of violence,” is flawed. Victims of rape do not trade places with their perpetrators. My experience at the International Criminal Tribunal for Rwanda (ICTR) is that many victims of rape who testified at Arusha before the Chambers do not consider perpetrators to be survivors.

Mbeki’s and Mamdani’s arguments that if the underlying motivation for mass murder, rape and sexual violence is political, then the resulting murder of innocent civilians must be treated as political rather than criminal, and that victims and perpetrators are all survivors, ignores basic legal principles that governs proof of guilt and individual criminal responsibility for crimes committed in internal armed conflict.

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