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. Continue reading