The following is Mark Kersten’s contribution to the ‘Rethinking Peace and Justice’ symposium. All other contributions to the symposium can be found here. 

(Photo: Reuters)

Since the dawn of humankind, communities have been thinking and rethinking the relationship between peace and justice. From the advent of international and transitional justice, however, the stakes have been raised and qualified. The problem at the core of the symposium isn’t going away: how can the pursuit of justice and accountability for mass atrocities be pursued while bolstering, or at least not undermining, peace processes?

In the 1990s, the so-called “peace versus justice” debate gained steam. Many worried that targeting perpetrators for prosecution would complicate conflict resolution efforts. The debate got particularly heated in the mid- to late- 2000s following the intervention of the International Criminal Court (ICC) in northern Uganda. The fears of the ICC spoiling peace now follow in the wake of every actual and potential intervention of the Court into an ongoing and active conflict.

Today, the tension that engulfs the peace-justice debate has diminished. Not long ago, the mention of ‘peace’ in the context of some international criminal law circles was interpreted as a threat. The inverse could be said about peace and conflict resolution circles. Since then, senior figures in international criminal justice circles have admitted that there is no obvious answer to the peace-justice debate. Negotiators have acknowledged that criminal justice for atrocities is an important part of the conflict resolution landscape. This period of relative calm and mutual understanding represents a useful time to discuss the peace-justice relationship without the emotional or professional baggage that often comes with it. In this context, the focus of Louise Mallinder and Ron Slye’s report on creative and realistic options for accountability is highly welcome.

Of course, transitional justice is far more than just international criminal justice. When confronted with the so-called “peace versus justice” debate, many observers stress the availability and appropriateness of other transitional justice mechanisms: truth commissions, traditional justice, lustration, amnesty laws, etc. Such mechanisms are indispensable. Yet they don’t resolve questions about the effects of pursuing international criminal justice in the context of ongoing conflicts or where sensitive peace negotiations are underway. This post and the suggestions below therefore focus on the ICC and what might be done to help (re)shape it as a positive actor in peace processes.

Take Advantage of the Lull

The lull in the peace-justice debate is unlikely to last. The next time that the ICC intervenes in an ongoing conflict, the debate will rear its head. This is therefore a good time to assess the Court’s impact and for proponents of the institution to work with experts in conflict and peace studies on a full-cost analysis of the Rome Statute as well as ICC decision-making vis-à-vis fragile, transitional states and peace processes. The fact that there will be a new Prosecutor in place by this time next year is also relevant. Many believe that a core part of the next Prosecutor’s mandate will be to be more sensitive to politics and to maximize the positive effects of the Court.

Preliminary Examinations and Investigations

Such a mapping exercise should be realistic and honest and cover a number of different elements. There are structural limitations in the Rome Statute that need to be recognized. For one, arrest warrants, once issued, can’t be revoked. That means that the deterrent potential and positive impact on the targeted individual is essentially spent once the warrant is issued. Positive behaviour can’t be rewarded if a warrant can’t be withdrawn.

This fact should galvanize a critical assessment of how preliminary examinations and investigations can act as unique and useful phases that contribute to both justice and peace processes – before warrants are issued. In conducting such an assessment, the Court can look at situations like Colombia, where the ICC’s preliminary examination has had a significant effect on the peace process. Of course, that is a story that hasn’t yet been fully told. But there has been a tremendous amount written about ICC interventions. The Court and those working with it should strive for a degree of strategic coherency in the conduct of preliminary examinations and investigations across situations. This is something that is sorely missing in ICC decision-making.

Sentenced to Peace

In the same vein, there should be a comprehensive assessment of the strategic flexibility of post-conflict sentencing measures. The ICC is in no position to judge the context-sensitive sentencing measures of states emerging from conflict unless they are done in order to simply shield perpetrators from justice. Mallinder and Slye raise this issue in the report in relation to Colombia and its sophisticated series of sentencing mechanisms for perpetrators of atrocities and human rights violations.

There are also lessons to draw on from beyond ICC situations. In Canada, for example, sentencing circles are often used to bring Indigenous perpetrators and victims together to address wrongdoing – as well as to reduce the over-incarceration of Indigenous persons. This does not mean that jail time is irrelevant; some harms must be addressed through the criminal justice system, as the painful example of South Africa makes clear. Moreover, some survivors need time before they are able to confront their wrongdoers. In transitional justice, there is an ever-present danger of romanticizing non-retributive approaches, just as there is a danger in privileging criminal justice. An honest appraisal of how post-conflict states can develop strategic and creative sentencing practices that satisfy the needs for justice and for peace would be indispensable.

Referral-Deferral

On the more drastic side, it may be useful to assess more radical proposals. One such strategy is a referral-deferral. Jason Ralph has suggested it and I have previously written about this idea in the context of Syria. It would require that the United Nations Security Council, as the arbiter of international peace and security, refer a situation to the ICC and then invoke Article 16 of the Rome Statute and immediately defer the investigation for 12 months. Informed by parties with expert knowledge of the situation under consideration, the Council would develop a realistic ‘checklist’ for progress towards peace and justice in the country. If the warring parties met these conditions in good faith, another 12-month deferral would be granted. The referral-deferral approach would therefore act as an incentive mechanism for progress on peace. There are shortcomings to this approach, but it is at least worth considering.

Space for Creativity: A Situation Review Panel

Mallinder and Slye argue in favour of ‘space’ for flexible and creative approaches to peace and justice. What is likewise needed in the international criminal justice realm is an actual space for that – a body that can effectively do some of this work and bring together proponents of international criminal justice as well as conflict resolution. There are various conferences and workshops that do some of this work. But something more concrete would be useful as well.

One body that could be able to address this and influence ICC decision-making is a Situation Review Panel (SRP). It would be an arm’s length, independent, and voluntary body mandated to critically assess situations where the ICC is considering an investigation or has already opened one. The panel would be comprised of a team of experts, including personalities in international criminal law with knowledge of previous ICC interventions as well as experts in conflict and peace studies. It would report to, but not be composed of any, ICC staff. As part of its mandate, the SRP could specifically study the possible impacts of ICC decisions on peace processes and negotiations.

These suggestions are not exhaustive. And perhaps some of them aren’t realistic. But in the search for creative and flexible approaches, we need to think big – and put all options on the table.