A scene of destruction in Donbass, Ukraine, which faces and ongoing conflict under preliminary examination by the International Criminal Court (Photo: AF)

Over the last year or so, there have been suggestions that we are witnessing a slow-down in the investigation and prosecution of international crimes perpetrated in the context of ongoing violent political conflicts. Is this true? If it is, why might this be the case? And is there anything that the International Criminal Court can do to better address crimes perpetrated in active wars and have more positive impacts on conflict situations?

In a draft chapter for a forthcoming book edited by Matt Killingsworth entitled Who do the Laws of War Protect?: Civility, Barbarism and the Evolution of International Humanitarian Law, I explore these questions. I have uploaded a copy of the draft here and also posted the introduction to the chapter below in case it of interest to readers of JiC.

The piece remains very much a draft, so all comments and thoughts are welcome and greatly appreciated!

The International Criminal Court (ICC) is the first international tribunal that regularly intervenes in ongoing and active conflicts. For many of its most fervent proponents, the ICC signalled that there could be “no peace without justice”. For the ICC’s champions, no longer should peace be negotiated without consideration of the need to hold perpetrators of mass atrocities to account. In the words of former ICC Prosecutor Luis Moreno-Ocampo, “negotiators have to learn how to adjust to the reality. The court is a reality.” (See Allen 2009). The ‘civility’ of international criminal justice can not only curb the violent excesses excesses of war; for its advocates, the liberal cosmopolitan norms that underpin international criminal justice can now be brought to bare to address the ‘barbarity’ of ongoing war and atrocity.

The ICC’s creation indeed represents something of a game-changer in the relationship between conflict resolution and peacemaking, on the one hand, and the pursuit of accountability for mass atrocities, on the other. “The ICC is the archetypal ex ante tribunal”, write Mahnoush H. Arsanjani and W. Michael Reisman (2005, 385). It is a Court “established before an international security problem has been resolved or even manifested itself… established in the midst of the conflict in which the alleged crimes occurred.” (Ibid.). No longer must wars end for international criminal justice to be pursued. On the contrary, in its first decade-and-a-half of operations, the ICC has readily intervened in ongoing and active conflicts — and it is widely expected, and called upon, to do so. The majority of situations into which the institution has opened official investigations have been active conflicts. But the ICC’s forays into situations of ongoing hostilities have not been kind to perceptions of the Court’s role in contributing to peace and effecting in-conflict justice, nor to its efficacy in achieving its brand of retributive justice.

Since its first intervention into the conflict between the government of Uganda and the Lord’s Resistance Army (LRA), the ICC has been regularly criticized for undermining peace. This is true even in cases where evidence of such contentions is weak or simply speculative as well as in situations where the Court has not been able intervene, like Syria (see Larcom, Sarr, and Willems 2013). Former U.S. Secretary of State Hillary Clinton, for example, stated in 2012 that pursuing war crimes charges against Syrian President Bashar al-Assad would “complicate a resolution of a difficult, complex situation because it limits options to persuade leaders perhaps to step down from power,” whilst then-Swedish Foreign Minister Carl Bildt said doing so “would put Assad in a head lock and make him less flexible, because we’d be telling him, ‘your only option is to fight to the death.’” (See Spencer 2012; Dworkin 2013).

At the same time as it is pilloried for its alleged effects on peace, the ICC has also been criticized for its inability to apprehend targeted suspects involved in the commission of mass atrocities in the active conflicts in which it intervenes. In its decade-and-a-half, only ten suspects whose alleged crimes were linked to a violent political conflict have faced judges at the ICC. As a result, the perceptions of the Court’s impacts on peace as well as justice and accountability have suffered.

Fifteen years after it became a functioning international organization and court, there are subtle signs that the ICC is increasingly reluctant to target individuals engaged in ongoing and active wars. Such is the social learning of an institutions whose reputation has been hampered by its record in situations of active warfare.

This chapter illustrates how perceptions of the ICC have been undermined by its forays into active conflicts, how this appears to have led to a newfound reluctance to seek arrest warrants for active belligerents, and what the Court can do to both ameliorate views of its impacts on peace as well as build stronger cases against alleged perpetrators who are simultaneously active combatants. The chapter proceeds as follows. The next section, section 2, provides an overview of the so-called “peace versus justice” debate and the perceived and real costs of the ICC’s interventions into ongoing wars. It then describes the apparent reluctance of ICC prosecutors to target individuals actively engaged in political violence. Despite these shortcomings and reputational costs, the Court cannot be expected to discontinue its practice of intervening in ongoing and active conflicts. Section 3 thus delves into how the ICC could move forward without repeating past behaviour and replicating its shortcomings. First, this section argues that the Court and its proponents must learn from the (mixed) empirical record of its interventions, temper expectations, and take the critical observations and concerns of diplomats, states, and researchers more seriously. Second, the chapter explores the possibility of the Court outsourcing real-time, in-conflict evidence collection to private, non-profit non-governmental organizations. The chapter ends with some concluding reflections on the future of justice in conflict.