Wednesday, 5 March 2008

Peace v. Justice. A dangerous moment in northern Uganda

Ugandan peace talks underway in recent weeks appear to be moving close to resolution of the civil war that has raged for more than two decades (http://www.voanews.com/english/2008-03-02-voa1.cfm). Some of the credit for provoking the peace negotiations is given to the International Criminal Court. In 2004, arrest warrants were issued against five leaders of the rebel Lord’s Resistance Army (http://www.icc-cpi.int/cases/UGD.html). There is broad agreement that the threat of prosecution helped bring the fighters to the negotiating table. Of course, one of the reasons that they have come to the table it to deal with the threat of prosecution. The conundrum for the Court is that it wants to take the credit for helping to provoke peace negotiations, but it is not then prepared to make its own compromises in order to bring the peace process to its conclusion. Now, as the peace talks have reached a critical stage, the rebels have proposed a meeting with the Prosecutor of the Court. Yesterday, it was reported that he has refused to meet with them (http://www.voanews.com/english/2008-03-04-voa28.cfm).
The Prosecutor may decline to proceed in a case where this is not in ‘the interests of justice’ (art. 53 of the Rome Statute), but in a recent Policy paper he indicated that this concept did not include the ‘interests of peace’ (http://www.icc-cpi.int/library/organs/otp/ICC-OTP-InterestsOfJustice.pdf). In reaching this conclusion, the Prosecutor insisted that with the entry into force of the Rome Statute, there is a new legal reality. He suggested if justice is to be subordinated to peace, this will be the burden of others, such as the Security Council. ‘The issue is no longer about whether we agree or disagree with the pursuit of justice in moral or practical terms: it is the law’, he wrote.
This is a very dangerous time. Although compromising justice for peace is a galling prospect, above all because it breaches the rights of the victims of atrocities, sacrificing peace for justice has its own terrifying consequences. Some have said it would be a terrible blow to the Court if it were to contemplate withdrawing the arrest warrants in the interests of a peace agreement. But it may prove even more devastating to the Court, in the long term, if peace talks break down and there is a return to war because of its refusal to show some flexibility. Many more innocent victims may die in the weeks and months to come as a result of any prolongation of the war. It will be said that the Court bears some of the responsibility.

1 comment:

Kjell said...

I definitely don't think peace and justice are mutually exclusive goals but the ICC would do well to be conflict-sensitive. An excerpt from a draft report that I prepared on the subject:

It is in the interest of the world community that the ICC function well and promote peace and human rights. In order for the ICC to do this, the prosecutor must be aware of the context specificity of each potential situation of ICC intervention. The ICC in general, and the Office of the Prosecutor in particular, must be well versed in the unique conditions of each situation and the role which the ICC could play in facilitate peace, while at the same time enforcing human rights. As a part of the pre-investigation and investigation process an impact assessment must be done by the OTP to assess the potential ramifications of ICC indictments and prosecution. There are several factors that are important to consider when attempting to incorporate a conflict-sensitive approach into prosecutorial strategy at the ICC.
Firstly, timing is important. The OTP has a large degree of discretionary power (with the approval of a Pre-Trial Chamber) to determine not only if but also when to initiate an investigation into alleged international crimes. It might be prudent to consider the stage of peace negotiations (if there are such peace negotiations ongoing) when making decisions about the initiation of prosecutions. In some situations it may be better to delay prosecutions until a point when the risk of conflict is defused and peace is somewhat consolidated. Amnesties may be considered for minor crimes in order to facilitate peace but the principal perpetrators of international crimes must be punished in order to show that they have violated the international moral order and the rights of their fellow citizens.
Furthermore, early ICC interventions (perhaps before full-blown conflicts develop) might actually play a role in conflict prevention. If leaders who are instigating conflict and human rights violations are isolated and imprisoned/punished at an early stage it may serve to disrupt conflict-contributing processes. Leaders are crucial for the mobilisation of mass movements and for the mobilisation of mass atrocity. Leaders play a decisive role not only in the formation of identity but also in providing the discourse and structures necessary for gross human rights violations. Moreover, human rights violations often lead to more serious human rights violations and they can also be a conflict-contributing factor. Prosecutions for incitement and, with legal reform, genocide preparation could successfully break the chain of violence.
There appears to be a causal link between human rights violations and violent conflict. Human rights violations often lead to the marginalisation, politicisation, and militarisation of particular groups (i.e. ethnic groups, religious groups). Furthermore, gross human rights violations may create refugee and IDP (internally displaced persons) flows, which can in turn destabilise recipient areas and lead to conflict.
The second important factor in integrating conflict sensitivity into prosecutorial strategy at the ICC is that peace processes and ICC prosecutions must be harmonised. For example, if amnesties are to be offered as part of a peace process then they must only be offered to individuals not facing prosecution by the ICC. One way that this could be accomplished is to only offer amnesties for low-level crimes and offenders and to prosecute leaders and other serious offenders. This is consistent with the ICC’s mandate (and practical constraints) to only prosecute the most serious crimes. Furthermore, offering amnesties to low level perpetrators may also have the effect of eroding the support base and power of armed groups as soldiers desert their leaders in order to protect their own welfare (a kind of prisoner’s dilemma scenario).
Thirdly, the ICC must always seek to be egalitarian in its application of international criminal law and it must not be timid in indicting state agents, if that is where criminal responsibility appears to lie. Even if there is difficulty in apprehending these individuals their indictment still serves as an important example that the International Criminal Court is striving for blind justice.
Finally, it must be recognised that if the ICC is to be an effective part of “the solution” in combating international crimes than it must be accompanied by other forms of international intervention and enforcement. International criminal justice exists within a political context (much more so than domestic criminal justice) and it cannot function without strong political support. As a treaty-created court the ICC is heavily reliant on state cooperation and in some cases this can only be assured by the diligence and political will of states. This means that the ICC, while striving to maintain the necessary degree of judicial independence, must also work in concert with states. There must be open communication and cooperation with the United Nations. In some circumstances ICC arrest warrants will have to be executed in concert with peace support operations or other conflict resolution and peacebuilding initiatives.