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Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court

Published online by Cambridge University Press:  01 March 2009


The argument against factoring peace processes into the discretion of the ICC Prosecutor is based on the premise that international law can be decontextualized from international politics and that in doing so will have superior consequences in terms of deterring atrocity and in consolidating peace. This view is at odds with the history of international criminal tribunals and the cases currently under review by the ICC. Those episodes demonstrate that the effectiveness of international criminal justice and its impact on peace are shaped and constrained by the political strategies of conflict resolution used by states and intergovernmental organizations to end criminal violence. Hence the Prosecutor should construe his discretion broadly to take account of the political context in which international criminal law has to operate.

Copyright © Foundation of the Leiden Journal of International Law 2009

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64 Statement by L. Moreno-Ocampo, Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, 24 October 2005, at 7. Left unsaid is the virtual certainty that meaningful assistance from Kampala ends if formal investigations of senior political and military officials were opened, given the dependence of the ICC on voluntary state co-operation.

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68 A. O'Brien, ‘The Impact of International Justice on Local Peace Initiatives: The Case of Northern Uganda’, available at

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71 J. Gettleman, ‘Rebels Delay Landmark Peace Deal in Uganda’, New York Times, 11 April 2008, A10.

72 ICC, L. Moreno-Ocampo, Opening Remarks, Fifth Session of the Assembly of States Parties, 23 November 2006, at 2, available at

73 The central reason for Sudan's official co-operation was the Comprehensive Peace Agreement (CPA) that ended the Sudan's north–south civil war, although there are reports of Sudanese support for the LRA. However, the ICC's simultaneous investigation of Sudan over Darfur complicates this co-operation. Spillover from Darfur or a breakdown of the CPA could lead Khartoum to arm the LRA to destabilize the government in Juba or to put Uganda on the defensive.

74 ICG, ‘Northern Uganda: Seizing the Opportunity for Peace’, Africa Report No. 124, 26 April 2007, at 15.

75 Ibid., at 10–11.

76 See M. Ssenyonjo, ‘How Joseph Kony is Keeping His Options Open’, Guardian, 26 March 2008.

77 See P. Eichstaedt, ‘The Kony Problem’, IWPR, 2 June 2008, available at; and R. Dicker, ‘When Peace Talks Undermine Justice’, International Herald Tribune, 5 July 2008, 6.

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82 See Branch, supra note 59, at 184.

83 See ICG, supra note 74, at 7.

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90 Ibid., at 18.

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92 Center on International Cooperation (CIC), Annual Review of Global Peace Operations 2008 (2008), 42–3.

93 ICG, ‘Congo: Four Priorities for Sustainable Peace in Ituri’, Africa Report No. 140, 13 May 2008, at 31.

94 See E. Chacon and B. Bibas, ‘Has the ICC Finished in Ituri?’, International Justice Tribune, 18 February 2008.

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100 The International Crisis Group recommends that the ICC should be more directly involved in efforts to strengthen the DRC's national legal capabilities, something that the court currently sees as outside its mandate. See Ibid, at 21.

101 L. Polgreen, ‘Congo's Death Rate Remains Unchanged since War Ended in 2003, Survey Shows’, New York Times, 23 January 2008, A8.

102 L. Clifford, ‘ICC Issues Sudan Arrest Warrants’, IWPR, 2 May 2007, available at

103 Statement to the United Nations Security Council pursuant to UNSCR 1593 (2005), 5 June 2008, 6.

104 Prosecutor's Application for Warrant of Arrest under Article 58 against Omar Hassan Ahmad AL BASHIR, 14 July 2008.

105 See R. Goldstone, ‘Catching a War Criminal in the Act’, New York Times, 15 July 2008, A19.

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118 See A. M. Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’, (2003) 97 AJIL 510, at 530.

119 M. Brubacher, ‘The Development of Prosecutorial Discretion in International Criminal Courts’, in E. Hughes, W. A. Schabas, and R. Thakur (eds.), Atrocities and International Accountability: Beyond Transitional Justice (2007), 142, 153.

120 One could argue that the application to indict Bashir entails precisely these kinds of risk. While it comports with the formal international consensus in Security Council Resolution 1593 (2005), it depends upon enforcement actions that the international community has so far been unwilling to take. Since the ICC is currently receiving no real backing from the Security Council, it is unlikely to jeopardize the co-operation needed for its Darfur investigation, and it may have the benefit of shaking the status quo of Security Council inaction. Nonetheless, the decision is incompatible with the existing policy of impartial mediation, neutral peacekeeping, and humanitarian relief, all of which depend upon the consent of the government, whose leader may be branded an international criminal. It is therefore fraught with risk for the court given Khartoum's threat to expel the UN peacekeepers if the Pre-Trial Chamber issues the arrest warrant. If the end result is increasing political violence and decreasing humanitarian access, this could poison the ICC's future relationship with the Security Council and the AU.

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122 ICC-OTP, supra note 6, at 4. As one OTP official wrote, ‘The Rome Statute provides the legal framework in which discussion about the pursuit of peace must be circumscribed. If the pursuit of peace cannot come to an accommodation with the obligations to which states have voluntarily bound themselves, States simply cannot endorse such agreements.’ P. Seils, ‘The Impact of the ICC on Peace Negotiations’, expert paper, conference on ‘Building a Future of Peace and Justice’, Nuremberg, Germany, 25–27 July 2007, 1.

123 ICC-OTP, supra note 6, at 5–6; contrast with HRW, supra note 5, at 19–20.

124 See S. Wolters, ‘Selective Prosecutions Could Undermine Justice for Congo’, IWPR, 7 March 2007, available at; and ICG, supra note 93, at 21–2.

125 HRW, supra note 5, at 21–2.

126 M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (1977), 287–8, cited in Williams and Scharf, supra note 40, at 17.

127 Walzer, supra note 126, at 288.

128 Ibid., at 119.

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132 Ibid., at 113.

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