This article first appeared on the new blog Post-Conflict Justice which I encourage all readers to check out!
The so-called ‘peace versus justice’ debate has come to dominate the politics of International Criminal Court (ICC). A tremendous amount of ink and number of neurons have been expended in the attempt to answer the question: do ICC interventions help or hinder ‘peace’?
A gamut of hypotheses have been proffered with regards to the effects of the ICC. On the one hand, it is claimed that the ICC yields a net positive effect on ‘peace’ by marginalizing perpetrators, deterring potential war criminals and inducing parties to enter peace negotiations. On the other hand, critics insist that the Court’s interventions undermine peace by instigating continued violence and leaving belligerents with few options but to continue fighting ‘to the bitter end’.
While recent research continues to refine and test these claims against the empirical record, almost thirteen years after the establishment of the ICC, no one has managed to ‘win’ the peace versus justice debate. Those who were on one side of the debate are unlikely to have been swayed to the other. Instead, the debate has been deemed to have reached an impasse.
But the problem with the peace versus justice debate – and the source of its stagnation – is not the failure of scholars and observers to move ‘beyond’ it. Rather, the debate’s achilles heal is the fact that its starting point is misplaced.
The ICC and
The ICC does not intervene in peace processes. Nor does it intervene in ‘peace’. Rather, the Court intervenes in the context of active or recently concluded conflicts. Of the eight situations in which the ICC has opened official investigations, six constituted ongoing violent political conflicts (Democratic Republic of Congo, Central African Republic, Uganda, Darfur, Libya and Mali) while the other two had recently expired (Kenya and Côte d’Ivoire). None had official peace negotiations occurring at the time that the ICC became involved.
Indeed, the ICC was created in such a way that it is predisposed to intervening in ongoing and active conflicts. The Court has a forward-looking, temporally limitless jurisdiction in its member-states and those states that have been referred to it by the UN Security Council. The record to date clearly suggests that states view the ICC as a useful, albeit selective, tool in context of the ongoing conflicts in which they are involved. And the growing expectation amongst global populations is that the ICC intervene as a ‘first responder’ when violent political conflict erupts.
The ICC does not intervene into situations of ‘peace’ or in ‘peace processes’. It intervenes in conflicts. It is thus misguided to assume that we can understand the effects of justice on peace if we leave conflict dynamics out of the picture.
But what would examining the ICC’s effects on conflict look like – and when does ‘peace’ come into the equation? Let us examine three interrelated and oft-neglected questions, with reference to the cases of Libya and northern Uganda.
1) How do ICC interventions affect how a conflict is understood?
It has been well-established that conflicts arise – and are perpetuated – by a quixotic, complex mix of economic factors (‘greed’) and socio-political factors (‘grievance’). Yet these causes are often neglected in the dominant narratives of conflicts in which the ICC intervenes. What matters is not why violence happened but that it did. Indeed, the causes of war are often conflated with the ICC’s targets. Put another way, within their respective conflict narratives, the reason there was war in northern Uganda or there was political violence in Libya was because of Joseph Kony and Muammar Gaddafi. Such ‘good versus evil’ discourses, which necessarily conflate specific personalities with the very causes of conflict, spawn predictable prescriptions: if only we could get rid of these actors by bringing them to The Hague or to their grave, the conflict would end. The strength of this narrative can be seen in the statements by ICC prosecutors and NGOs such as Invisible Children.
At the same time, and relatedly, ICC interventions can de-politicize violence by framing conflicts as a matter of humanitarian urgency rather than political failure. As with focusing on the particular ‘evil’ of individuals, de-politicizing violence distracts from an understanding of why political violence erupted in the first place and what dynamics fuel its continuance. The record is murky, but it is unlikely that, without addressing the causes and dynamics of war, a conflict can be resolved or transformed.
2) How does the ICC affect those belligerents and warring parties that it does not target?
The vast majority of attention from both scholars and observers of the ICC is on how the Court affects actors targeted for prosecution. In contrast, the effects of ICC interventions on those actors that are not targeted tend to be neglected. For the dynamics of war and peace, however, it matters just as much that a party is not targeted than that it is.
The logical corollary of labelling ICC-targeted parties ‘evil’ is that those parties and actors who are not targeted are considered ‘good’. In Libya, the rebels and their political wing, the National Transitional Council, were deemed to be the ‘good’ side by the ICC, despite allegations that they too had committed atrocities. For example, the Misratan militia, accused by the Commission of Inquiry on Libya of committing ethnic cleansing in Tawergha, was praised by former Prosecutor Luis Moreno-Ocampo as an “example for the world.” In the case of northern Uganda, the legitimacy of President Yoweri Museveni and the Ugandan military (the UPDF) was bolstered by the ICC’s myopic focus on their adversaries – Joseph Kony and the Lord’s Resistance Army (LRA).
In short, a sense of legitimacy is bestowed to actors and parties not targeted by the ICC. They are on the ‘right’ side of justice – and the war. This can have significant implications for conflict resolution efforts.
3) How do the above factors affect the attitudes and incentives of warring parties to engage – and commit to – peace negotiations?
The way that warring actors understand their position within a conflict feeds directly into whether they are willing to enter into a peace process – or not.
The effects of the ICC on non-targeted parties matter because they alter the interests these actors have towards peace. As a result of the legitimacy granted to them by virtue of not being targeted, there is strong evidence that both the Libyan opposition and the Government of Uganda found it more appealing to commit to a military – rather than peaceful – solution to their conflicts.
With regards to targeted parties, a crucial question is whether their labeling as the ‘evil’ side of the conflict incentivizes or de-incentivizes them from entering peace negotiations. The assumption in the peace versus justice debate is that targeted parties lose all incentives to negotiate peace. But the record is mixed and requires greater scrutiny. In Libya, there is no clear sense that the Gaddafi regime was affected by the ICC’s intervention. In northern Uganda, however, there is evidence that Kony and the LRA saw an opportunity to ‘balance’ the conflict narrative by engaging in the Juba peace process.
Of course, committing to a peace process is not the same as committing to peace. Indeed, a more refined focus on the ICC’s effects on the dynamics of conflict resolution suggests a need to challenge the widely held assumption that a peace process is always about achieving peace. On the contrary, peace negotiations may represent the continuance of conflict by other means.
A Way Forward
ICC interventions affect peace and conflict processes. In order to attain a more accurate picture of the effects of the ICC on the situations in which the Court intervenes, two developments are needed. First, there is a need to better integrate theories and insights from conflict and peace studies as well as conflict resolution into the field of international criminal justice – and vice versa. Second, there is a need to bring together those with significant practical expertise within these fields. International criminal justice has too often been presented as a fait accompli to mediators and negotiators. This neither fosters respect nor elucidates the real effects of ICC interventions on peace and conflict processes.