Introduction
For years, scholars and activists have questioned the ability of extraordinary courts to bring peace in countries devastated by conflict. Peter Kagwania, head of the Africa Polity Institute, begged the SCSL to drop the charges against Charles Taylor and “let Liberia [finally] have peace”, because peace seemed a much more pressing issue after decades of civil war (Globe and Mail 2008). The debate peace versus justice acknowledges the inevitable tradeoff between holding criminals accountable to the law and ending violence quickly. “To lay charges against senior government officials and to criminalize the entire government, will derail attempts to pull Sudan from the brink” (Flint, de Waal and Pantuliano 2008), says a group of journalists in an open letter to the Guardian. And again, Chandra Lekha Sriram bluntly said that the ICC can be a great “impediment to peace negotiations” (2009, 305). In this essay, I will argue that the ICC is at time an obstacle to peace because the methods of justice perpetrated by the International Court can be unavoidably in conflict with the resolution processes of local populations. The first part of the essay will present the reasons why scholars say that the ICC pursues justice at the expense of peace. The second part will put forward the response of the ICC advocates, who understand justice as a necessary condition for long-lasting peace. The third part will illustrate the argument of this paper. It will be said that although justice might be indispensible for peace, the ICC-type of justice is not a strict requirement for resolution processes and can at times slow down negotiations that build upon restorative principles of justice. Lastly, a few observations will be made. The conclusion will then summarize the essay and restate the argument.
WHY JUSTICE AT THE EXPENSE OF PEACE?
In order to evaluate the significance of the claims that justice is at times pursued at the expense of peace, it is necessary to understand the motivations behind this argument. At the core of the debate is the fact that the ICC can intervene in ongoing conflict (Kersten 2014). Indeed, although the Rome Statute does not authorize State Parties to interfere with wars (see Preamble), the ICC has jurisdiction over the territories of all member States at any point in time after the ratification of the Statute by the State (ICC 2015, 5). Art. 17 says that intervention by the ICC is warranted in the cases where national governments are “unwilling or unable” to investigate or prosecute. This might include times of conflict and political unrest. Conflicts are delicate situations and it seems natural to think that intrusion by the ICC might deteriorate already unstable conditions.
Skeptics of the ICC are divided into two groups. The first group claims that the ICC has generally no impact on ongoing conflict and is a futile attempt to resolve wars. “It beggars belief”, says Richard Dicker of Human Rights Watch, “that a dictator [like Col Gaddafi] who has gripped to power for 40 years would be frozen in place by an arrest warrant” (Gardner 2011). On a different note, others say that the success of an ICC intervention depends on the military support it receives from other countries, the UN or non-governmental bodies (Stahn 2015, 23). The ICC by itself, therefore, has little or no effect on conflict resolution and its intervention could result in an incredible waste of effort, resources and time.
The second group, however, puts forward a much grimmer perspective. They argue that interference by the ICC would delay peace negotiations and fuel conflict even further (Apuuli 2006, Branch 2007, Gissel 2015). Their argument builds upon three lines of narrative. First, once arrest warrants are issued, criminal leaders have fewer incentives to step down. Fearing “retaliation at home and war crimes trials abroad”, the argument goes, leaders will use all the means at their disposal to remain in power (Natsios 2008, 82). When the Security Council asked the ICC to start an investigation in Libya, Kersten promptly observed that “if Gaddafi had considered stepping down”, the prospect of being deported to The Hague had now diminished the attractiveness of the option (2014). Similarly, in Uganda, the leader of the LRA knows that the Court has issued an arrest warrant for him, and some say that this has left him with no choice but to stay in the bush and keep on fighting (Branch 2007, 183).
Second, contrary to popular opinion, opponents of the ICC say that prosecutions do not marginalize criminals and therefore do not contribute to end conflict (Stahn 2015, 18). The argument is speculative but a plausible one. Instead of eroding support from the bottom, they say, ICC threats can be used by leaders to turn the population against international institutions. In Sudan and Kenya, leaders have presented ICC prosecutions as attempts of a supranational body to infringe state sovereignty and democracy (ibid.). Regardless of the ability of this rhetoric to convince all of the national population, it is true that this perspective might increase political polarization among the masses and hence fuel further conflict. Another strong point that skeptics of the marginalization theory make is that the circle of those working closely to the top leaders will want to continue fighting out of fear of being prosecuted too in case of defeat (Nolen 2008).
Finally, some NGOs have also raised the point that overreliance on the ICC’s methods of justice might bring local populations to distrust their own national judicial systems, therefore “deepening ongoing crises” (Kersten 2014). These are the main arguments of those believing that the ICC’s relentless pursuit of justice can at times sacrifice peace. In the next paragraph, I will lay out what seems to be the strongest counterargument to these claims. I will then evaluate the flaws in such argument, which will lay the foundation of my thesis.
NO PEACE WITHOUT JUSTICE
Surprisingly, advocates of the ICC do not respond to the aforementioned claims by entrenching the conversation in moral grounds (e.g. by giving a moral justification for justice). On the other hand, they tend to adopt a very instrumental approach by focusing on the practical advantages of the Court’s interference with ongoing conflict (HRW 2009, Stahn 2015, Vinjamuri 2010). The general idea is that justice is conducive to peace, and the ICC can be used as a tool for serving resolution processes (Stahn 2015, 13).
Many argue that the ICC can have a deterrent effect on criminals (Bassiouni 1996, Vinjamuri 2010). By showing leaders that their actions will be held accountable to international standards of human rights, it is believed that they will either stop engaging in criminal activities or refrain from doing so in the future. Unfortunately, however, evaluation of the ICC deterrent effects is still ongoing, and studies conducted so far have presented unclear, if not contradictory, evidence. Some, for example, find proof of deterrent effects in Libya during the 2011 crisis (Hillerbrecht 2016), while others claim that the effectiveness of deterrence is dependent upon the level of the ICC’s intervention (Dutton and Alleblas 2016).
Secretary-General Kofi Annan and other advocates of justice have put forward a much more convincing line of argument. They observe how anti-ICC scholars start from a questionable premise that conceives peace in a “very narrow, negative sense” (Clark 2011, 542). They place great emphasis on the need to end violence as soon and quickly as possible. Their main concern is that by intervening, the ICC will worsen already critical situations and prolong violence. It is an approach that signals the tendency of equating peace to the simple suspension of conflict. Given such a thin definition of peace, it is easy to claim that because intervention by the ICC can delay negotiations between the parties involved in the conflict, the ICC is an obstruction to peace.
ICC advocates challenge this narrow conception of peace. They say that peace must be understood in a “broader, positive sense”, adopting a more “long-term perspective” (ibid.). Peace cannot be reduced to a simple ceasefire. As Kofi Annan says, serious reconciliation happens only when people’s grievances are acknowledged and properly addressed (ICTJ 2011). They bring the cases of Rwanda, Bosnia and Herzegovina, and Sierra Leone to demonstrate that “proof of the true facts” helps “repair the fractured relationships between former antagonistic groups” (Goldstone in Weiss and Wilkinson 2014, 482). Justice, therefore, is a necessary condition to build solid peace and ensure long-term stability. Without impunity, negative feelings will eventually taint the delicate balance of post-conflict societies and ultimately lead to the resumption of armed conflict (HRW 2009). Justice and peace are processes that go hand in hand, and it cannot be said that the pursuit of the former is at the expense of the latter.
The next paragraph will evaluate the validity of this stance, accepting the intention of the argument but rejecting its conclusions.
ICC-TYPE OF JUSTICE CAN HINDER PEACE
So far, it has been said that those who believe that the ICC pursues justice at the expense of peace build their argument on a too narrow definition of peace. Kofi Annan and other advocates of justice, on the other hand, interpret peace in a much broader sense. In this light, justice becomes essential for peace because it functions as the corrective force that brings society back into balance. The ICC therefore is generally never an impediment to peace.
Nevertheless, as long as justice might be necessary to peace, it is still a logical leap to assume that the ICC-type of justice is the only justice that works for peace. Some even go as far as to say that the ICC pursues a kind of justice aimed at pleasing the international community more than solving local problems (Nolen 2008). This paragraph will argue that the ICC-type of justice might not be necessary to attain peace. More importantly, because the resolution practices of some communities are based on restorative methods of justice, the ICC can hinder peace processes by imposing a universalized perspective that is incompatible with such alternative methods.
Justice is not an absolute concept. With respect to the present discussion, it is possible to distinguish between two primary strands: retributive and restorative justice. Both share the same intent (addressing past wrongdoing) but have very different approaches. The retributive-justice agenda seeks “fair, uniform, and deserved punishment for all offenders” (Cahill 2007, 817). Harsh treatment, it is believed, can “annul or counter the appearance of the wrongdoer’s superiority” and thus restore moral balance “by reaffirming the real value of the victim” (Murphy and Hampton 2002, 130). This is the primary rationale driving the ICC’s judicial system. On the other hand, restorative methods operate through rituals of forgiveness and reconciliation (Stuart 2001, 534). Forgiveness requires an apology from the wrongdoer and the willingness of the victim to forego punishment by accepting the apology (Stuart 2001, 539). In this process, victims and wrongdoers cooperate to repair past harms and prevent future crimes (Sherman and Strang 2007, 12). Reconciliation, on the other hand, is a process that includes mercy (see TRC in South Africa). Mercy might involve a reduction of the penalty or complete amnesty altogether (Stuart 2001, 540).
There is evidence that these rituals of forgiveness and reconciliation can be conducive to peace. Sherman and Strang have shown that compared to victims appearing in regular courts, victims participating in restorative justice processes were significantly more pleased with the way their case had been dealt with (2007, 63). Because of the emphasis on emotional reparation, restorative justice contributed to reduce the chances of post-trial violence in Australia, the US and the UK (Sherman and Strang 2007, 16-20).
With this said, the problem with the ICC is that it uses methods that at times are incompatible with the principles of restorative justice. First, even though victim participation is granted under Art. 68 of the Rome Statute, the ICC does a poor job at addressing the victims’ concerns and giving them proper representation in court (Funk 2010, 156). Victims have to fill out long and complicated application forms; they cannot influence the scope of the prosecution; they lack assistance and do not have a say in the final verdict (Pena and Carayon 2013, 527-532). These are all issues that limit victim participation in the ICC trials. Second, ICC’s retributive justice does not allow for amnesty, which can constitute a big part of the restorative process used by some communities to attain peace. Even in cases where amnesty could take place, it is easy for the Court to overrule it and impose its judgment. For example, if the country grants amnesty to the accused party, the ICC might claim that the state is trying to shield the accused from prosecution and declares the country unwilling to prosecute (Naqvi 2010). As previously mentioned, when countries are declared unwilling to prosecute, the ICC can intervene and nullify the amnesty.
Amnesty and victim participation are tools of restorative justice that have been at the foundation of resolution processes in countries like Colombia, South Africa and Uganda. Certainly, peace processes based on restorative justice cannot be applied homogenously to all sorts of conflict. Nevertheless, in those cases where countries endorse such methods and decide to embark on a long journey of reparation and reconciliation, intervention by the ICC can block restorative procedures and indirectly delay peace. In Uganda, many Acholi believe that mato oput can bring “true healing in a way that formal justice systems cannot” (Afako 2002, 64). As Beitzel and Castle put it, third parties should not deliver justice on their own terms and indigenous forms of justice should receive more support as they better adapt to the needs of local communities (2013, 51).
In sum, peace can at times depend on alternative methods of justice. By imposing a punitive interpretation of justice, the ICC delays resolution processes and prevents true healing in societies where justice rests on principles of forgiveness and reconciliation.
OBSERVATIONS
The strongest critique to this argument is that restorative justice does not always work. In Afghanistan, for example, where some of the prosecuted leaders were integrated back into the national government, violence resumed shortly after the resolution processes ended (HRW 2009, 5). What must be noted, however, is that punitive methods like those perpetrated by the ICC have uncertain consequences too. For some, “retributive justice deepens wounds and conflicts rather than contributing to healing” (Zehr 2002, 3). There is no clear-cut empirical evidence showing that retributive justice is more effective at attaining peace than restorative justice. If some countries spontaneously decide to turn to restorative justice for reconciliation, there is no compelling reason to think that international standards of criminal justice would have better effects. On the contrary, because the ICC would force its methods onto communities that operate by different means, it might instead finish to delay negotiations and hinder peace processes.
Conclusion
This essay argues that at times the ICC pursues justice at the expense of peace. This happens because the Court’s methods of justice collide with restorative procedures used by some countries for resolution processes.
First, I presented the general arguments of those who believe that the ICC’s pursuit of justice is an impediment to peace. Then I demonstrated how these arguments rest on a too narrow definition of peace, and by using a broader interpretation, justice actually becomes a necessary condition. Finally, I argued that the ICC is however an impediment to peace when it blocks alternative justice procedures that are conducive to resolution processes. Even in a broader definition of peace, therefore, the ICC might pursue justice at the expense of peace.