As many readers will know, over the past six years, my academic work has focused on the so-called “peace versus justice” debate. The idea behind my research was to re-think how we assess the impact of the International Criminal Court (ICC) on peace processes and conflict resolution. Last year, these efforts culminated in a PhD thesis entitled ‘Justice in Conflict: The ICC in Libya and Northern Uganda’.
I could not be more thrilled that this work will be published by Oxford University Press next year (hopefully in the Spring). In the meantime, I wanted to share with readers and anyone interested, the analytical framework that forms the core of my research. In rejecting the rather stale and recycled claims within the ‘peace versus justice’ debate, the central aim of this framework is to interrogate and re-define the questions that we ask when we investigate the ICC’s impacts on the conflicts in which it intervenes. In subsequent chapters, I use the framework to guide my empirical research into the Court’s effects in Libya and northern Uganda.
Below is the introduction to the paper. The chapter can be accessed and downloaded in its entirety (for free!) here.
Despite a raft of sophisticated arguments regarding the potential positive and negative impacts of the International Criminal Court on the conflicts in which it intervenes, the gamut of arguments within peace-justice debate have proven insufficient in elucidating a clear and rigorous framework for how to study the Court’s effects. Again, there is no doubt that the ICC has complicated conflict resolution. This is not in dispute. But the arguments within the peace-justice debate, as currently conceived, have not provided a sufficient means to identify and analyze how conflicts are shaped by interventions by the Court and what impact this has on potential peace, justice and conflict processes. As a result, despite a desire to move beyond the rigid and dichotomous nature of the debate, a way to do so remains elusive.
Given the amount of time and energy spent on the ‘peace versus justice’ debate, why has a more rigorous research agenda on the effects of international criminal justice on peace processes not emerged? Part of the reason is that the key issues, phases and dynamics that affect and constitute a potential peace process have been neglected. This chapter seeks to fill this lacuna by offering an analytical framework with which to assess and analyze the effects of ICC interventions on ongoing and active conflicts.
Peace in the “Peace versus Justice” Debate
In assessments of the effects of international criminal justice on peace, peace has generally been held as a constant, defined in its negative variant – the cessation of large-scale, direct forms of physical violence (see, e.g., Lie et al 2006). This is unsurprising. As a concise variable, the reliance on negative peace is “understandable given methodological concerns.” (Höglund and Kovacs 2010, 369). In this context, in order for the ICC to have a positive effect on peace, the work of the Court must be associated with a decrease in, or cessation of, direct, physical violence. Conversely, the effects of the ICC on peace are negative if the Court’s intervention precipitates or is associated with continued conflict or intensified violence. A recent example of this approach is a study conducted by Courtney Hillebrecht (2011), who has measured changes in the incidence of conflict interactions (violence) in Libya against key moments in the ICC’s intervention in Libya.
Peace can also be considered in its positive variant, implying something ‘greater’ than negative peace – social justice and the lack of structural violence (see Galtung 1969, 167-191). Here, the effects of the ICC would be positive if they contributed to the achievement of ‘reconciliation’, and social cohesion in the states in which the Court intervened. The ICC would have negative effects if it prevented such goals from being achieved by, for example, contributing to the entrenchment of social divisions.
Both approaches are problematic. While any finding that the ICC leads actors to respond violently would be important, focusing on negative peace requires the attribution of causality to the ICC for changes in levels of violence. However, by assuming that there is a clear correlation between patterns in violence and the decision-making of the Court, analyses like Hillebrecht’s risk decontextualizing political violence, attributing responsibility for increases and decreases in violence to the ICC without adequately considering other factors which also contribute to levels of violence. They also do not tell us why particular actors may respond to the ICC’s activities with increased or decreased levels of violence. Moreover, an approach focused myopically on violence neglects empirical findings that increases in violence may, however counterintuitively, have positive effects on the potential resolution of a given conflict (see Greig and Diehl 2012, 108-112). In short, such studies cannot adequately demonstrate the complexity of issues and dynamics which affect levels of violent behaviour.
Focusing on positive peace is even more problematic. The achievement of positive peace is undoubtedly a noble and worthy aspiration. However, it is a distant, long-term and sometimes conceptually ‘fuzzy’ goal whose ultimate achievability is unclear. It may be the distant end to which societies aspire but never reach. Moreover, it isn’t clear how the ICC, as a judicial institution, could or should contribute to a society’s pursuit of social justice or the eradication structural violence.
More importantly for the purposes of this thesis, both approaches neglect that peace is often a product of a peace process – “a political process in which conflicts are resolved by peaceful means” and founded upon a “mixture of politics, diplomacy, changing relationships, negotiation, mediation, and dialogue in both official and unofficial arenas.” (Saunders 2011, 483; See also Burgess 2004). The distinct factors and facets critical to a peace process are subsumed under the banner of ‘peace’. Little, if any, attention is paid to what a peace process entails and the possibility of a complicated mix of effects on the distinct issues, phases and dynamics that constitute it. Even less attention is paid to the possibility that increases and decreases in violence or even failed negotiations are the consequence not of the ICC but of an altogether separate mix of factors, behaviours and interventions. Seeking to ascertain whether international criminal justice is “good or bad” or “helps or hinders” obfuscates how international criminal justice may impact these particular phases, dynamics and issues of peace processes. As a result, approaches to analyzing the peace-justice debate have proved insufficient in understanding the effects of the ICC on ongoing conflicts and, in particular, its effects on moving peace processes forward. Gradually, this is changing.
Despite “limited attention, among conflict researchers, directed toward how states attempt to deal with their past history of violence and how this can eventually affect the prospects for long-term peace and stability” (Lie et al 2006, 1), there is a slow but welcome acknowledgement that international criminal justice should be studied through the lens of peacebuilding (see Sriram 2007; Newman et al 2009; Campbell et al 2011; Ramsbotham et al 2011; Sriram et al 2013). This chapter, the analytical core of the thesis, seeks to add to this growing body of research by proposing a novel framework for studying the effects of international criminal justice on conflict resolution and peace processes. This is achieved by bringing key elements pertaining to peace processes into the peace-justice debate.
Our first task is to identify how an ICC intervention may impact the understanding or narrative of a conflict as well as the incentives and attitudes of the parties towards the prospect of entering negotiations. The chapter posits that the conflict narrative – the overarching framing or understanding of a conflict’s causes and dynamics – along with the attitudes and incentives of the warring parties towards entering a potential peace process will affect all of the other issues, phases and dynamics of any potential peace process. How the ICC shapes these two issue areas will ultimately determine whether and how a given peace process moves forward.
Our second task is to identify the dynamics and phases that are required to move parties towards a peaceful settlement and how the ICC may affect them. There is a general recognition within conflict and peace studies that a peace process consists of three key stages: pre-negotiation, negotiation and post-negotiation (see, e.g., Höglund 2008, 15; Greig and Diehl 2012, 16). Others consider additional phases (See, e.g., Guelke 2008, 63-77; Kriegsberg 1998, 280-284), but the inclusion of these three phases is uncontroversial. Moreover, each phase in a peace process is itself made up of different issues and dynamics. How the ICC affects these dynamics will affect the potential for a peace process to move towards the ultimate aim of conflict resolution. Taking the above, a framework to study and analyze the effects of the ICC on conflict and peace processes begins to take shape.