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Why the ICC Should Operate Within Peace Processes

  • Kenneth A. Rodman
Extract

Is it ethical for the prosecutor at the International Criminal Court (ICC) to consider political factors, such as peace processes, in selecting situations to investigate or cases to prosecute? During the early years of the court, a number of documents and statements from the Office of the Prosecutor (OTP) suggested that there were occasions when it was. Two OTP policy papers issued in 2003 recommended that the prosecutor assess “all circumstances prevailing in the country or region concerned, including the nature and stage of the conflict and any intervention by the international community,” and whether prosecution might “exacerbate or otherwise destabilize a conflict situation.” In the same spirit, the ICC's chief prosecutor, Luis Moreno-Ocampo, referred to his decision-making as a “dialogue between many actors” with a “strategic dimension . . . [that] involves all stakeholders.” This language suggested a process of consultation and coordination with local and international actors involved in conflict resolution to adapt international criminal justice to on-the-ground political realities.

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NOTES

1 International Criminal Court, Office of the Prosecutor (ICC-OTP), Draft Regulations of the Office of the Prosecutor, June 3, 2003, p. 47; and ICC-OTP, Paper on Some Policy Issues Before the Office of the Prosecutor, September 2003, p. 2.

2 ICC-OTP, “Informal Meeting of Legal Advisors of Ministries of Foreign Affairs,” New York, October 24, 2005, p. 9.

3 ICC-OTP, Policy Paper on the Interests of Justice, September 2007, p. 7.

4 See Welch, Claude E. and Watkins, Ashley F., “Extending Enforcement: The Coalition for the International Criminal Court,” Human Rights Quarterly 33, no. 4 (November 2011), pp. 971–87.

5 See Roach, Steven, “Rawls's Law of Peoples and the International Criminal Court,” in Pierik, Roland and Werner, Wouter, eds., Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge: Cambridge University Press, 2010), pp. 179–94.

6 Shklar, Judith N., Legalism: Law, Morals, and Political Trials (Cambridge, Mass.: Harvard University Press, 1964).

7 Moreno-Ocampo, Luis, “The Role of the International Community in Assisting the International Criminal Court to Secure Justice and Accountability,” in Provost, René and Akhavan, Payam, eds., Confronting Genocide (New York: Springer, 2010), p. 281. Some international criminal justice supporters are skeptical of Moreno-Ocampo's claims and contend that he has been overly deferential to powerful states and the governments with whom he has partnered. Nonetheless, their critiques are premised on the view that law must remain separate from politics.

8 ICC, Eleventh Diplomatic Briefing of the International Criminal Court, The Hague, October 10, 2007, p. 3.

9 Rastan, Rod, “The Responsibility to Enforce—Connecting Justice with Unity,” in Stahn, Carsten and Sluiter, Göran, eds., The Emerging Practice of the International Criminal Court (Leiden, The Netherlands: Brill, 2009), pp. 163–83.

10 Peskin, Victor, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (Cambridge: Cambridge University Press, 2008), pp. 29148. On the role of these factors in the arrests of Karadžić and Mladić, see Judah, Tim, “Pride and Pragmatism,” Guardian, July 31, 2008; and Castle, Stephen, “Mladic Arrest Opens Door to Serbia's Long-Sought European Union Membership,” New York Times, May 26, 2011.

11 Allen, Elizabeth, “Seven Questions: Prosecuting Sudan,” Foreign Policy, February 12, 2009.

12 See Bellamy, Alex J., Responsibility to Protect (Cambridge: Polity, 2009).

13 Goldstone, Richard J., “Bringing War Criminals to Justice During an Ongoing War,” in Moore, Jonathan, ed., Hard Choices: Moral Dilemmas in Humanitarian Intervention (Lanham, Md.: Rowman & Littlefield, 1998), p. 202.

14 Wheeler, Nicholas J., Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, 2000), pp. 253–55.

15 See Touval, Saadia, Mediation in the Yugoslav Wars: The Critical Years, 1990–1995 (Houndmills, U.K.: Palgrave, 2002), pp. 135–69.

16 Is This the World's Least Effective UN Peacekeeping Force?Economist, December 4, 2004, p. 45.

17 Traub, James, The Best Intentions: Kofi Annan and the UN in the Era of American World Power (New York: Farrar, Straus & Giroux, 2006), p. 341.

18 See Bellamy, Alex J. and Williams, Paul, “The UN Security Council and the Question of Humanitarian Intervention in Darfur,” Journal of Military Ethics 5, no. 2 (June 2006), pp. 144–60.

19 See Goldston, James A., “More Candour About Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court,” Journal of International Criminal Justice 8, no. 2 (May 2010), pp. 396–98.

20 Rastan, Rod, “Comment on Victor's Justice & the Viability of Ex Ante Standards,” John Marshall Law Review 43, no. 3 (Spring 2010), pp. 601602.

21 See Zartman, I. William and Touval, Saadia, International Mediation in Theory and Practice (Boulder, Colo.: Westview, 1985), pp. 258–60.

22 See Licklider, Roy, “Ethical Advice: Conflict Management vs. Human Rights in Ending Civil Wars,” Journal of Human Rights 7, no. 4 (October 2008), p. 378.

23 McGreal, Chris, “African Search for Peace Throws Court into Crisis,” Guardian, January 9, 2007.

24 Bass, Gary Jonathan, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, N.J.: Princeton University Press, 2000), pp. 232–37.

25 See Burg, Steven L., “Coercive Diplomacy in the Balkans: The U.S. Use of Force in Bosnia and Kosovo,” in Art, Robert J. and Cronin, Patrick M., eds., The United States and Coercive Diplomacy (Washington, D.C.: United States Institute of Peace, 2003), pp. 9496.

26 See Goldstone, Richard J., For Humanity: Reflections of a War Crimes Investigator (New Haven, Conn.: Yale University Press), pp. 103, 107; and “Arbour, Milošević, and ‘Yesterday's Men,’” Institute of War & Peace Reporting, Tribunal Update No. 128, June 5, 1999.

27 Cited in Unger, Thomas and Wierda, Marieke, “Pursing Justice in Ongoing Conflict: A Discussion of Current Practice,” in Ambos, Kai et al. , eds., Building a Future on Peace and Justice: Studies in Transitional Justice, Peace and Development (Berlin: Springer-Verlag, 2009), p. 267.

28 Peskin, Victor, “The International Criminal Court, the Security Council, and the Politics of Impunity in Darfur,” Genocide Studies and Prevention 4, no. 3 (Winter 2009), pp. 317–20.

29 Allen, “Seven Questions.”

30 See Waal, Alex de and Stanton, Gregory, “Should President Omar al-Bashir of Sudan Be Charged and Arrested by the International Criminal Court? An Exchange of Views,” Genocide Studies and Prevention 4, no. 3 (Winter 2009), p. 331.

31 Crilly, Rob, “Aid Groups Return to Darfur—With New Names,” Christian Science Monitor, July 16, 2009, p. 9.

32 See Allen, Tim, Trial Justice: The International Criminal Court and the Lord's Resistance Army (London: Zed Books, 2006); and Branch, Adam, “Uganda's Civil War and the Politics of ICC Intervention,” Ethics & International Affairs 21, no. 2 (Summer 2007), pp. 179–98.

33 See Schabas, William A., An Introduction to the International Criminal Court, 4th ed. (Cambridge: Cambridge University Press, 2011), pp. 3944.

34 Moreno-Ocampo, Luis, “Building a Future on Peace and Justice,” in Ambos, et al. , eds., Building a Future on Peace and Justice, p. 13.

35 Peter Eichstaedt, “ICC Chief Prosecutor Talks Tough,” Institute for War & Peace Reporting, May 7, 2008.

36 Rastan, “The Responsibility to Enforce,” p. 176.

37 Stedman, Stephen John, “Spoiler Problems in Peace Processes,” International Security 22, no. 2 (Fall 1997), p. 10.

38 Eichstaedt, “ICC Chief Prosecutor Talks Tough.”

39 The case for a U.S. Special Forces intervention as an alternative to the UPDF was made by the executive director of Human Rights Watch, which is one of the strongest supporters of the ICC. See Roth, Kenneth, “Get Tough on Human Rights,” Foreign Policy, November 2010. Human Rights Watch officials have also made arguments in favor of military intervention in other situations under ICC scrutiny. See Dufka, Corinne, “The Case for Intervention in the Ivory Coast,” Foreign Policy, March 25, 2011; and comments of Tom Malinowski in Landler, Mark and Bilefsky, Dan, “Specter of Rebel Rout Helps Shift U.S. Policy on Libya,” New York Times, March 16, 2011.

40 International Crisis Group, “Northern Uganda: Seizing the Opportunity for Peace,” Africa Report No. 124, April 26, 2007, p. 2.

41 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), p. 288.

42 Moreno-Ocampo, “The Role of the International Community,” p. 281.

* I would like to thank Petie Booth and Lindsey Pruett for their research assistance.

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Ethics & International Affairs
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