How the ICC’s Website is Undermining the Court – and Justice

Posted on May 14, 2013 by Mark Kersten

Screen Shot 2013-05-14 at 11.20.17 AMIn the world of international criminal justice, it would be easy to think that the ICC’s website is a trivial matter. But it’s not. So I was thrilled to read that Kevin Jon Heller has written a brief but critically important plea to the ICC to update its website:

The ICC’s website is its public face. Scholars, activists, and interested laypeople — many who live in the situations under investigation — rely on it as their primary source of information about the Court’s activities. So it is imperative that the Court update its website in a timely fashion.Time and again, however, it does not…The ICC always emphasizes the need for effective outreach. It should start by keeping its website up to date.

I could not agree more. Over the last few years, I have experienced and been told countless times how poor and inaccessible the ICC’s website is. It is shockingly bad. Documents are incredibly difficult to locate. On days when important rulings are issued and when the site needs to be running smoothly so that people (especially in affected countries) can watch proceedings and see justice done, it has simply shut down. And it is not only the interested observer and academic who have a hard time with the site; I have heard that ICC staff often can’t rely on the website either.

All of this begs the question: what has prevented the Court from changing its website? An obvious answer would be financial resources. The Court has had its budget tightened over the last few years with almost no year-to-year growth, despite an increasing caseload. Still, at some point updating the website simply has to be worth it. Not doing so will bare costs and consequences – and already is.

As I have argued recently in the case of Kenya, the ICC is losing the ‘perception game’. To some extent, this is inevitable. The Court simply doesn’t have the resources to counter the messaging machine of President Uhuru Kenyatta and Vice President William Ruto. Their skilful messaging of the indictments against them helped them to achieve victory in Kenya’s recent elections. But the ICC could certainly do a lot more to counter their messaging through online communication strategies.

In my view, the question of the ICC’s bias against Africa has also been dealt with quite poorly by the Court. Again, the Court doesn’t have nearly enough resources to counter this messaging. But repeating the same messages about the number of African states parties, the ICC being a “Court for Africa”, and so on, hasn’t helped convince skeptics. Does anyone who originally believed that the ICC was somehow biased against Africa not think so today? Probably not. The perception that the Court is neo-colonialist and anti-African has burgeoned and solidified. Now when the ICC opens an official investigation into the first non-African state it will likely be seen as a political response to the accusations against the Court.

In short, the lack of a responsive, provoking and accessible web communication strategy by the ICC gives space for powerful actors to undermine the Court. It may be inevitable that these actors win when it comes to traditional media, like newspapers, radio and TV, where money rules. But it shouldn’t be so easy for them when it comes to new social media platforms, where money rarely dictates what stories carry the day. Continue reading →

Posted in International Criminal Court (ICC), Outreach | 6 Comments

A Bizarre Snowball’s Chance in Hell: Kenya Asks Security Council to Terminate Kenyatta Case at the ICC

Posted on May 13, 2013 by Mark Kersten
Kenyan President Uhuru Kenyatta during meetings in London last week (Photo: WPA Pool/Getty Images Europe)

Kenyan President Uhuru Kenyatta during meetings in London last week (Photo: WPA Pool/Getty Images Europe)

International criminal justice has had its share of bizarre moments. We’ve seen seemingly untouchable indictees turn themselves in to foreign embassies and request to be sent to The Hague. We’ve seen enemy indictees unite to win elections. We’ve seen indictees try anything and everything to get the International Criminal Court (ICC) off their backs. Until last week that is, when Kenyan President Uhuru Kenyatta took it to another level altogether.

It all started in a rather out-of-context context. ICC Prosecutor Fatou Bensouda was giving her six-month briefing on the status of investigations in Libya to the UN Security Council. As is tradition, all Security Council member states then had an opportunity to respond. Most of it was largely the compulsory and dry commentary that makes good snoozing material for even the most fervent followers of the ICC. But then came Rwanda’s Ambassador to the UN, Eugene-Richard Gasana, turn. And he let loose:

…international criminal justice needs to be independent from political interference and to uphold the principle of sovereign equality of states. Needless to say that Rwanda, as many other UN member states, does not believe that the ICC lived up to this aspiration…

…In this regard, even the signatories of the Rome Statute have recently expressed concerns on that Court. I may recall the note verbale dated Thursday 2 May 2013 addressed by the Kenya Mission to the Security Council, containing a compelling case against the methods of work of the Office of the Prosecutor, on the Kenyan cases. This was also pointed out by a judge of the ICC, who recently resigned.

In that respect, Rwanda hopes that the Security Council will soon table this issue, raised by a UN member state, on its programme of work, with a view to addressing the growing concern of member states, including signatories of the Rome Statute.

It was on. Again as per tradition, Bensouda had the opportunity to reply to any and all comments from members of the Security Council. Remember, this was a briefing on the situation in Libya – not Kenya. But Bensouda focused her entire response on  Gasana’s remarks:

“Mr. President while today this Council is not discussing the situation in Kenya, I find myself compelled to set the record straight with regard to the remarks made by His Excellency the Permanent Representative of Rwanda…

…On the basis of the Permanent Representative of Rwanda’s statement I must surmise that the information contained in Kenya’s letter to this Council is unfounded and incorrect. It is a backdoor attempt to politicize the judicial processes of the Court. The letter referred to by the Permanent Representative of Rwanda has not been transmitted to us. We therefore reserve our right to respond to it in detail in due course and we hope we will be given that opportunity once it has been transmitted to us.

Fatou Bensouda speaking at the UN Security Council (Photo: UN)

Fatou Bensouda speaking at the UN Security Council (Photo: UN)

Of course, while this was happening, no one really knew what letter was being discussed. So the next step was to figure out what exactly this mysterious ‘note’ from Kenya contained. David Bosco had the scoop on what turned out to be a rambling request to the UN Security Council to terminate the ICC’s cases against Kenyan President Uhuru Kenyatta and Vice President William Ruto. Of course, the letter tapped into all of the predictable tropes about the ICC threatening peace, security and democracy in Kenya and beyond. Ironically the letter also stated that it was not trying to interfere with the ICC’s work: Continue reading →

Posted in International Criminal Court (ICC), Justice, Kenya, Kenya and the ICC, UN Security Council | Tagged , | 25 Comments

Truth, Reconciliation and Canada’s ‘Cultural Genocide’: Notes from a Truth Commission

Posted on May 2, 2013 by Mark Kersten

Andrea Russell joins JiC this week for a timely post on the Canadian Truth and Reconciliation Commission (TRC) which is examining the impact and legacy of the Indian Residential Schools system in Canada. Andrea recently attended one of the TRC’s national events in Montreal and offers an insider perspective into its work and the challenges ahead. 

(Photo: speakingmytruth.ca)

(Photo: speakingmytruth.ca)

Even the greatest of transitional justice fans might be excused for not knowing what atrocities Canada’s Truth and Reconciliation Commission seeks to address. In fact, until recently, the atrocities in question were sadly unknown even to most Canadians. Thus, in an address on Friday evening to the TRC national event, ‘Honorary TRC Witness’ and former Prime Minister of Canada Paul Martin voiced the question that many Canadians have not had the courage to ask: Why were Canadians so long unaware that their government had, for a period of over 100 years, compelled 150,000 Aboriginal, Métis and Inuit children to attend residential schools, where they lost their identities, their culture, and their language, and were subjected to physical, sexual, and psychological assaults of the most appalling nature?

Canada’s ‘Indian’ Residential Schools are, as Martin and current Prime Minister Harper have acknowledged, a deeply shameful part of the country’s past. And yet few knew of the schools’ existence, let alone the colossally destructive impact that they had on Canada’s first peoples, until very recently, when in 2006, class action lawsuits launched by survivors of the school systems were settled by the Federal government and the churches that operated the schools. The $1.9 billion settlement agreement entered into by the federal government and the churches mandated the creation not only of the TRC, but also an independent assessment process and a common payment claims process wherein former students could receive direct financial compensation for their experiences at the schools.

At the Montreal TRC event, former Prime Minister Martin, a strong advocate for Aboriginal rights and education, did not hold back in employing legal concepts to describe the effects of the schools. This forced assimilation of Aboriginal children and youth, he said in a well-publicized address to survivors, entailed “cultural genocide”.

Some may counter that while Raphael Lemkin did indeed formulate the concept of cultural genocide, the Genocide Convention that he inspired did not ultimately include this concept; later attempts to enshrine the idea into indigenous rights conventions were similarly defeated. The intent to destroy ethnic and racial groups lies of course at the heart of the Genocide Convention. Few who attend Canada’s TRC hearings would deny that evidence of the destructive impact of the policy on Aboriginal groups—if not necessarily evidence of a government intent to destroy– is being systematically documented by the TRC.

A hockey team from a residential school in Maliotenam, Quebec, in 1950 (Photo: Archives Canada / PA-212964)

A hockey team from a residential school in Maliotenam, Quebec, in 1950 (Photo: Archives Canada / PA-212964)

Government planes flew into remote Aboriginal villages without notice and departed mere minutes later with all of the village children on board, heading to new lives at the residential schools. Children as young as five were severely beaten for speaking their native language at the schools, or for refusing to eat food that was completely foreign to them. Students taken from their parents and who returned home up to twelve years later were completely changed and unable to communicate with their families. Many other children never returned at all, with at least 3,000 of them dying of disease or during ill-fated escapes through wintry northern landscapes. Young people grew up in the schools without ever receiving a hug or words of love or kindness from a parental figure. The underfunded system of ‘schools’ was staffed by unscreened and untrained teachers and guardians, a frightening number of whom regularly sexually molested and physically assaulted the children. Corporal punishment and sexual abuse in the schools was so horrific that it drove many former students to alcohol and drug abuse and, in many, cases suicide.

Variations on these personal narratives were tearfully recounted by dozens of witnesses at the TRC’s latest hearings. Some now elderly former students were publicly telling their story for the first time in their lives. Most had learned to repress memories of their years at the schools, and many had never shared their horrific pasts—even with their own family members. Continue reading →

Posted in Canada, Truth and Reconciliation Commissions | Tagged , | 3 Comments

Facebook Likes Don’t Save Lives

Posted on May 2, 2013 by Mark Kersten

532911_10151563392920376_1794168927_nAs readers will know, I have regularly commented on the relationship between social media and social activism. In the wake of Invisible Children’s KONY2012 and a growing body of literature on the subject, it has been impossible for anyone interested in social justice and political change to ignore the impact of Twitter, Facebook, blogs and other social media platforms on social movements and conflicts.

Generally speaking, I have been rather skeptical of the ‘power’ of social media to affect political change. I have argued that outlets like Twitter and Facebook don’t have agency in and of themselves and should be regarded as potentially useful tools for activists. However, it is the people who sacrifice their time, create real-life networks of committed individuals and, in too many cases, sacrifice their lives, who ultimately affect social change. It is they and not Twitter or Facebook who deserve our praise and respect. Moreover, it is important to remember that social media platforms are useful not only to political activists but to authoritarian and autocratic actors who seek to stifle social and political change.

In this context it was fascinating to watch UNICEF Sweden’s bold advertisement campaign. As Al Jazeera puts it, the organization “asks ‘clicktivists’ to put their money where their mouse is.” Here’s their commercial:

With their campaign, UNICEF Sweden has taken aim at the conflation between symbolic allegiances that are built through sharing, ‘liking’ and retweeting and the potential for actual and tangible commitment to political and social activism. The fallacy of this connection was a crucial lesson (hopefully) learned from Invisible Children’s KONY2012 campaign. While millions shared and ‘liked’ the KONY2012 video, when it came to taking concerted action for the ‘Cover the Night’ campaign just weeks after the film was released, the turnout was dismal.

Of course, some may criticize UNICEF Sweden’s message that “money save lives”. There is a propensity amongst some international organizations, particularly those engaging in humanitarian aid and assistance, to ‘throw money’ at highly complex problems. Indeed, we seem to live in a world where the most difficult of challenges we face are dealt with by massive financial commitments: $100 billion for climate change! $25 billion to fight poverty! A ga-zillion dollars to repair the US economy! This belies the complexity and structural nature of many of the gravest global challenges and injustices we face. Money matters. But what matters isn’t simply how much money is raised or spent but how it is spent.

In the wake of KONY2012, many asked whether the future of international NGO activism had been forever altered. Would international organizations now do everything in their power to go viral and pile on ‘likes’ and ‘retweets’? Is that how capacity and influence would be now measured? UNICEF Sweden has made it pretty clear: not everyone in the NGO world is going the Invisible Children way.

Posted in Activism, Film, Social Media | Tagged | 5 Comments

ICC Prosecution of Kenyatta Takes a Hit

Posted on April 29, 2013 by Mark Kersten
Kenyatta inauguration

(Photo: Thomas Mukoya / Reuters)

The Kenya cases were never going to be easy for the International Criminal Court (ICC) and the going only got tougher following the election of Uhuru Kenyatta and William Ruto, both of whom have been indicted by the ICC for their alleged roles in the 2008/09 post-election violence in Kenya.

The Prosecution has faced numerous obstacles in seeking to properly investigate and prosecute crimes pertaining to the post-election violence. Evidence has been withheld, witnesses have been intimidated, and Kenyatta and Ruto were elected to the positions of President and Vice President, respectively. Throughout the process, it seemed fair and feasible to assume that the biggest challenges to the prosecution of Kenyatta and Ruto would come from political developments within Kenya that were outside of the control of the ICC, and not from within the Court itself.

It thus came as a surprise (at least to those of us outside the inner-workings of the Court) when a presiding Judge in the Kenya case ripped into the Prosecution last week. Judges in the Pre-Trial Chambers rebuked the Prosecution for withholding evidence from the Defence. However, as Thomas Escritt puts it, Justice Christine van den Wyngaert “went further in her criticism of the prosecutors.” Did she ever.

It is worth reading van den Wyngaert’s entire opinion but here are some of the most stinging comments:

…there are serious questions as to whether the Prosecution conducted a full and thorough investigation of the case against the accused prior to confirmation… the Prosecution offers no cogent and sufficiently specific justification for why so many witnesses in this case were only interviewed for the first time post-confirmation…

…there can be no excuse for the Prosecution’s negligent attitude towards verifying the trustworthiness of its evidence. In particular, the incidents relating to Witness 4 are clearly indicative of a negligent attitude towards verifying the reliability of central evidence in theProsecution’s case. This negligent attitude is particularly apparent in relation to Witness 4’s evidence because, as the Prosecution concedes,’the Office as a whole was on notice, prior to the confirmation hearing,of the inconsistencies in the account Witness 4 gave during his [second]screening’. Based on the foregoing considerations, I find that the Prosecution failed to properly investigate the case against the accused prior to confirmation in accordance with its statutory obligations…

In sum, whilst the application of the principles set out in the decision to the Prosecution’s conduct in this case in my view results in a finding of a violation by the Prosecution of several of its obligations and the infringement by the Prosecution upon various rights of the accused…

Christine Van Den Wyngaert (Photo: ICC)

Christine Van Den Wyngaert (Photo: ICC)

In addition to her stinging rebuke, van den Wyngaert removed herself from the case altogether. She has explained that her decision is a result of her caseload although some, like Kevin Jon Heller, are skeptical of her justification.

So how should we understand these developments?

With every development in the Kenya cases, and perhaps for all cases at the ICC, there are (at least) two types of implications for the Court: legal implications for the case and perception implications for the Court. Continue reading →

Posted in Defense Counsel, ICC Prosecutor, International Criminal Court (ICC), Kenya, Kenya and the ICC | Tagged , | 3 Comments

Defying Gravity: Seeking Political Balance in ICC Prosecutions

Posted on April 22, 2013 by Alana Tiemessen
Reuters

Reuters

The International Criminal Court is often accused of being “political” or “politicized” in its selection of situations and cases. What has become most problematic for the Court’s credibility and impartiality in this regard are the situations and cases that have not been selected, and the criteria and discourse used to justify such omissions and imbalanced prosecutions. Specifically, the “gravity threshold,” which the OTP uses to justify who is prosecuted and who isn’t, is politically problematic for the ICC. Prosecutorial strategies that target only one side of a conflict are frequently justified in terms of gravity – that the crimes of some individuals are graver than their opposing parties,.

I suggest there are two political problems with the gravity threshold in case selection.

1)     Assessing the gravity of one party’s or individual’s crimes relative to their opponents is ethically and politically problematic. This approach ultimately results in the ICC’s de facto support of one side of the conflict over another and perpetuates impunity gaps at the international and domestic level.

2)     While atrocity crimes can be ranked, scaled, and compared across parties and perpetrators, no victim can be considered less victimized or less deserving of justice than another.  To date, the manner in which the gravity threshold has been operationalized is an affront to victims and is likely to erode the ICC’s legitimacy among this important constituency.

Gravity, in Legal Terms Continue reading →

Posted in Admissibility, Democratic Republic of Congo, ICC Prosecutor, International Criminal Court (ICC), Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Uganda | Tagged , , , , | 11 Comments

Canada’s Prime Minister: A Danger to Peace?

Posted on April 19, 2013 by Mark Kersten
Stephen Harper (Photo: Reuters)

Stephen Harper (Photo: Reuters)

There was no need to be particularly impressed or to defend the comments of the newly appointed leader of the Liberal Party of Canada, Justin Trudeau, in the wake of the Boston Marathon bombings. Fresh off his victory in the Liberal Party leadership election, Trudeau was  asked how he would respond to such an attack. In response Trudeau stated:

“Now, we don’t know now if it was terrorism or a single crazy or a domestic issue or a foreign issue. But there is no question that this happened because there is someone who feels completely excluded. Completely at war with innocents. At war with a society. And our approach has to be, where do those tensions come from? Yes, there’s a need for security and response. But we also need to make sure that as we go forward, that we don’t emphasize a culture of fear and mistrust. Because that ends up marginalizing even further those who already are feeling like they are enemies of society.”

Trudeau’s comments reflect common wisdom. It is elementary to anyone interested in conflict resolution and the transformation of violence to peace. Heck, it is common wisdom to the common gardener and to every medical practitioner. You don’t get rid of weeds by cutting the flowers; you need to get at the roots. You don’t just deal with the symptoms of illness; you address the root causes of disease.

In the realm of conflict resolution and conflict transformation, there has long been a recognition that peace requires addressing both the causes and dynamics of violence. Dealing only with symptoms or dynamics risks leaving the motivations for violence in place and risks creating additional grievances which subsequently act as new justifications for continued violence.

Yet in response to Trudeau’s comments, Canadian Prime Minister Stephen Harper went on a blistering and remarkably misplaced offensive. In doing so, he exposed his views on Canada’s role in dealing with terrorism and political violence. It wasn’t pretty.

While attending the funeral of Margaret Thatcher in London, Harper declared:

“When you see this kind of action, when you see this kind of violent act, you do not sit around trying to rationalize it or make excuses for it or figure out its root causes. You condemn it categorically and to the extent that you can deal with the perpetrators you deal with them as harshly as possible and that is what this government would do if it ever was faced with such actions.”

In the wake of tragic events like the bombings in Boston, there is clearly reason to categorically condemn violence , express sympathy and condolences and to support the pursuit of justice and accountability. But there is also a need to understand why such tragedies occur and why some groups resort to violence. Reacting harshly is the easy part. Identifying what can be done to prevent such violence is harder but even more important. At the same time, striving to understand the root causes of violence can and should never be conflated with a defence of violence.

(Photo: SvR Design)

(Photo: SvR Design)

Sadly, Harper’s approach is just anther example of Canada’s Conservative Government focusing on the symptoms of critical challenges facing Canadians and the international community. This has been Harper’s approach to domestic crime (fill jails and trump up the dangers of ‘unreported crime‘!) and it was the approach to Omar Khadr, the Canadian child soldier who was detained for a decade in Guantanamo Bay and repatriated, only reluctantly, to Canada last year. The policy of the Government has been to ‘act tough’ and ‘punish wherever possible’. The result, however, is irresponsible and simply dangerous. It also confounds an already incoherent and irresponsible foreign policy, one which has led to Canada’s increasingly diminished international prestige and flailing global reputation. Continue reading →

Posted in Canada | Tagged , | 1 Comment

CSI: The Hague or the ICC just got Jack Bauer-ed

Posted on April 17, 2013 by Mark Kersten

We knew this day was coming. We didn’t know how or exactly when but we knew that someone would eventually make a TV show out of the International Criminal Court. There’s just too much drama, too much character, too much politics not to.

And now it appears to be reality. NBC will begin airing ten episodes of ‘Crossing Lines’ this summer. According to one source, the show

“is a cross-boarder crime drama in which a special unit of criminal investigators working with the International Criminal Court hunt down global criminals and bring them to justice.”

The show stars William Fichtner, Marc Lavoine, and Donald Sutherland in a role that appears to be loosely based on former ICC Prosecutor Luis Moreno-Ocampo. Most of the show appears to be focused on Europe (a dream for many ICC critics!) and it remains to be seen if there will be any episodes which more accurately represent the ICC’s focus on African conflicts. An episode on the hunt for Joseph Kony would be wildly popular although I imagine the walk-in surrender of Bosco Ntaganda likely wouldn’t be dramatic enough.

Crossing Lines will undoubtedly be both fun and, with all of the factual inaccuracies, painful to watch. The world of international criminal justice never ceases to amaze.

Posted in Film, Humour, International Criminal Court (ICC) | 3 Comments

Transitional Justice as Politics

Posted on April 15, 2013 by Mark Kersten
(Cartoon: Gianfranco Uber / Cartoon Movement)

(Cartoon: Gianfranco Uber / Cartoon Movement)

It is widely accepted that transitional justice can and should be separated from politics. How societies and states achieve justice in the wake of mass atrocities, so it goes, is a pursuit that must be divorced from political calculations. Indeed, in the eyes of many, politics is poison to any attempt at achieving accountability and combating impunity. Justice must be above and beyond politics.

As I have written previously, the field of transitional justice suffers from a diversity of problems. It is an ever-growing conceptual minefield that has accepted so much under its mandate that it risks losing its meaning. Increasingly, transitional justice no longer refers strictly to the approaches societies take to account for the past in the wake of conflict, dictatorship or a period of mass atrocity. Instead, a broad array of issues from Security Sector Reform, forced migration, Demobilization and Reintegration Reform, amongst others, are now considered under the transitional justice umbrella.

Another problem within the field and, especially, the practice of transitional justice has been a certain denial of politics. The strength of transitional justice is that it is political and, as such, represents the possibility of building societies and peace on the basis of a good politics.

A couple of weeks ago I was fortunate enough to attend a roundtable discussion at the International Studies Association conference in San Francisco celebrating the latest work of Bronwyn Leebaw, Judging State-Sponsored Violence, Imagining Political Change. The roundtable included two stalwarts in the field of transitional justice, Ruti Teitel and Leslie Vinjamuri (follow them on Twitter here and here). During the conversation, it became clear, at least amongst those theorizing and thinking most deeply about the subject, that transitional justice cannot be separated from politics.

Unfortunately, this hasn’t always been the case. Because transitional justice has been viewed as a process divorced from ‘politics’, the very political nature of transitional justice has remained under-explored and under-theorized. As a result, there has been a failure to distinguish between different types of politics and to identify those forms of politics which can ultimately lead to good outcomes. Consequently, many proponents of transitional justice, especially those who work for advocacy groups or international organizations express a certain phobia of their work being political. This shackles those who want to do transitional justice work to “how-to” guides and “best practices” manuals rather than concerted political action. Unfortunately, this also strips transitional justice of its most important strength: the potential good politics that it represents.

(Photo: UNICEF)

(Photo: UNICEF)

Of course, there are some forms of politics that transitional justice should seek to avoid. International tribunals shouldn’t be beholden to the power politics of particular states or institutions like the UN Security Council. Truth Commissions shouldn’t work at the behest of government interests or parties seeking to legitimize themselves and delegitimize their adversaries; lustration policies shouldn’t amount to witch hunts where a powerful party cleanses the political class of its foes.

Nor can transitional justice be an apolitical box-ticking exercise where states say: ‘we’ve prosecuted some people, we’ve set up a Truth Commission, we’ve barred some people from holding office, and we’ve paid some reparations – we’ve done  transitional justice.’

Continue reading →

Posted in Transitional Justice | 2 Comments

ICC Prosecutor Enters the ‘Peace versus Justice’ Sweepstakes

Posted on April 2, 2013 by Mark Kersten
No Justice No Peace

(Photo: Still Burning)

Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), recently issued a ‘state of the union’ address from the ICC on the “peace versus justice” debate. The intervention, penned as a New York Times op-ed entitled ‘International Justice and Diplomacy’ introduced Bensouda’s voice into a timely debate that isn’t going away any time soon.

To readers of JiC, the “peace versus justice” debate is old-hat. On the one hand, there are those who believe that peace (in the form of stability and order) must precede and take priority over the pursuit of justice and accountability; otherwise, justice risks undermining efforts to resolve conflict peacefully. On the other, there are those who argue that peace and justice must be pursued simultaneously; there is “no peace without justice” they argue. Of course, this is an over-simplified version of a debate that is multi-layered and more sophisticated than this harsh dichotomy suggests. Nevertheless, it is important to note that it is a debate that is indelibly linked to the ICC’s work. The reason is simple: as a permanent institution, the ICC intervenes in ongoing and active conflicts where attempts to establish and maintain peace may be vulnerable to the demands of international criminal justice.

So what did Bensouda have to say about the ‘peace versus justice’ debate?

You Do Peace, We’ll Do Justice

To begin, Bensouda notes that the pursuit of justice and the pursuit of peace should be separate:

“As the I.C.C. is an independent and judicial institution, it cannot take into consideration the interests of peace, which is the mandate of other institutions, such as the United Nations Security Council.”

This is a long-standing position in the Office of the Prosecutor. In a 2007 policy paper, Bensouda’s Predecessor, Luis Moreno-Ocampo similarly argued that the interests of international justice and the interests of international peace were separate. The former, he maintained, was the prerogative of the ICC, the latter of “other institutions”, including the UN Security Council.

On the surface, this is a reasonable division of labour. Indeed, the indepedence of the ICC from the politics of institutions like the UN Security Council is vital the Court’s legitimacy. However, it is questionable whether proponents of international criminal justice actually believe in the division of the interests of peace and those of justice. Echoing sentiments commonly voiced in international justice circles, Bensouda goes on to claim that

“The debate about peace versus justice or peace over justice is a patently false choice. Peace and justice are two sides of the same coin. The road to peace should be seen as running via justice, and thus peace and justice can be pursued simultaneously.”

Therein lies the rub. If peace and justice are “two sides of the same coin” and peace can only be achieved through the pursuit of justice, then it cannot be argued that the interests of peace and the interests of justice are separable. You can’t have it both ways.

This latter position is closer to what many ICC proponents believe; the pursuits of peace and justice should be combined rather than separated. Indeed, this helps explain why human rights advocates celebrate rather than critique the increasingly close relationship between the ICC and the penultimate guardian of international peace, the UN Security Council – however problematic that may be.

Joseph Kony (left) and his former second in command Vincent Otti (right), stand with Dr. Riek Machar, chief mediator of the Juba Peace Talks

Joseph Kony (left) and his former second in command Vincent Otti (right), stand with Dr. Riek Machar, chief mediator of the Juba Peace Talks

But We Can Do Good

Bensouda subsequently argues that, while the ICC should take a hands-off approach to questions of conflict resolution and peacemaking, the Court nevertheless can have – and has had – positive effects on peace negotiations. As she writes:

“justice can have a positive impact on peace and security…

…if anything, the “shadow of the Court” has helped to isolate individuals wanted by the I.C.C., or to kick-start negotiations. Continue reading →

Posted in Conflict Resolution, Peace Negotiations, Peace Processes | Tagged , | 2 Comments