Guest-Post at Opinio Juris: Libya and the “Peace versus Justice” Debate

I have been honoured by the opportunity to write-up a guest-post over at the widely-read and respected international law blog, Opinio Juris, entitled “Trying to Get to the Bottom of the “Peace versus Justice” Debate in Libya” (click here to read it). The post is an attempt to measure various opinions of the impact of the ICC in Libya with actual evidence. Here’s a snippet:

“Virtually every argument in the peace-justice debate is logical, intuitive and, on some level, persuasive. The problem, however, is that not only are the arguments in the peace-justice debate contradictory; rather than reflecting realities on the ground or tangible evidence, they often reflect and privilege the convictions of individuals with particular political, moral and legal persuasions. Individuals on either side rarely examine evidence of particular cases, preferring instead to say that justice is absolutely necessary or absolutely problematic across contexts. Trying to find someone who believes pursuing international criminal justice helps in some cases and hinders in others would take a very long time…

…As it stands, we have literally zero evidence that the ICC warrants have determined or persuaded his actions. Gaddafi has not said, for example: “If it wasn’t for the ICC warrant, I would leave” or “A condition of peace is that the ICC drop its arrest warrant against me.” Even if he had made such claims, it would be impossible to ascertain whether they are meant sincerely or as a matter of rhetoric.

Instead, we know two things: first, the rebels won’t negotiate peace if Gaddafi remains in power. While the rebel’s National Transitional Council may accept Gaddafi living in Libya, they have been adamant that he leaves power, having rejected an African Union brokered proposal which included direct negotiations with Gaddafi. In other words, they refuse to negotiate a power-sharing agreement if Gaddafi is involved. The ICC cannot have a negative effect on a peace negotiation if the parties aren’t interested in negotiating in the first place…

…Based on the available evidence, this post has highlighted three key issues which undermine claims that the ICC has hindered the prospects for peace in Libya. First, the ICC’s intervention cannot affect the possible negotiation of a power-sharing agreement in Libya; the rebels simply have no interest in negotiating if Gaddafi is at the other end of the proverbial negotiating table. Second, the ICC has not affected Gaddafi’s options to receive exile or asylum. To date he has rejected all offers and, by all accounts, is willing to fight until he is captured or killed. Third, critics of the Court apportion blame on the ICC for ruining the political conditions necessary to negotiate peace but, by doing so, allow the Security Council, which is responsible for the Court’s role in Libya, to get off scot-free…

…This post is not intended to defend the ICC and its effects on the resolution of violent political conflicts. There is still much to be understood about the relationship between peace and justice. Many of the claims on both sides of the peace-justice debate are legitimate and need further scrutiny. There are real challenges to achieving international criminal justice and a cessation of violence at the same time. However, as the case of Libya illustrates, if the peace-justice debate is now a permanent feature of how we think about the tensions between pursing justice and conflict resolution, we should probably challenge the often simplistic, sometimes groundless, and usually ill-considered assumptions that are made in favour of real evidence, however intuitive they may be.”

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in International Criminal Court (ICC), Libya, Libya and the ICC, Peace Negotiations. Bookmark the permalink.

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