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

  • KENNETH A. RODMAN
Abstract

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.

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1 The Prosecutor of the Special Court v. Charles Gankay Taylor, Prosecution Opening Statement, 4 June 2007, at 28, available at www.sc-sl.org/Transcripts/Taylor/4june2007.pdf.

2 T. McConnell, ‘Charles Taylor's Trial Puts Dictators on Notice’, Christian Science Monitor, 4 June 2007, 1.

3 K. C. Moghalu, Global Justice: The Politics of War Crimes Trials (2006), 109–11.

4 US Department of State, Bureau of Democracy, Human Rights and Labor, ‘Country Reports on Human Rights 2003 – Liberia’, 25 February 2004.

5 Human Rights Watch (HRW), ‘The Meaning of the “Interests of Justice” in Article 53 of the Rome Statute’, Policy Paper, June 2005; Amnesty International, ‘Open Letter to the Chief Prosecutor of the International Criminal Court: Comments on the Concept of the Interests of Justice, drafted by Martin Macpherson, Senior Director of the International Law and Organizations Program’, 17 June 2005.

6 ICC-OTP, Policy Paper on the Interests of Justice, September 2007.

7 Brubacher, M. R., ‘Prosecutorial Discretion within the International Criminal Court’, (2004) 2 Journal of International Criminal Justice 71, at 73. For expositions of the legalist approach, see G. J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (2000), 20–8; and Vinjamuri, L. and Snyder, J., ‘Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice’, (2004) 7 Annual Review of Political Science 345, at 346–52.

8 See Vinjamuri and Snyder, supra note 7, at 352–6.

9 R. G. Teitel, Transitional Justice (2000), 51–9.

10 P. B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001), 154–9.

11 Skaar, E., ‘Truth Commissions, Trials – or Nothing? Policy Options in Democratic Transitions’, (1999) 20 Third World Quarterly 1109.

12 See Snyder, J. and Vinjamuri, L., ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, (2003) 28 International Security 5.

13 See Bass, supra note 7, at 227–31.

14 D. Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’, (2003) 14 EJIL 481, at 483.

15 Roche, D., ‘Truth Commission Amnesties and the International Criminal Court’, (2005) 45 British Journal of Criminology 565, at 568.

16 See Scharf, M. P., ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’, (1999) 32 Cornell International Law Journal 507, at 508.

17 W. A. Schabas, An Introduction to the International Criminal Court (2007), 41, 185.

18 See J. Dugard, ‘Possible Conflicts of Justice with Truth Commissions’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 700.

19 See the statement by P. Kirsch in Scharf, supra note 16, at 522; see also Dugard, supra note 18, at 702; Brubacher, supra note 7, at 81; and R. J. Goldstone and N. Fritz, ‘“In the Interests of Justice” and Independent Referral: The ICC Prosecutor's Unprecedented Powers’, (2000) 13 LJIL 655.

20 See the statement from Bourdon, W. in L. Côté, ‘Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law’, (2005) 3 Journal of International Criminal Justice 162, at 178.

21 See International Crisis Group (ICG), ‘Shock Therapy for Northern Uganda's Peace Process’, Africa Briefing No. 23, 11 April, 2005, at 5; and Branch, A., ‘International Justice, Local Injustice: The International Criminal Court in Northern Uganda’, (2004) 51 (3)Dissent 22.

22 See comments by Y. Sorokobi in ‘Uganda: ICC Could Suspend Northern Investigations – Spokesman’, IRIN News, 18 April 2005; the OTP never formally invoked ‘the interests of justice’ as a basis for a deferral, but suggested that it could do so in a number of interviews. See T. Allen, Trial Justice: The International Criminal Court and the Lord's Resistance Army (2006), 93–4; ICG, supra note 21, at 5–6; and K. Southwick, ‘North Uganda Conflict, Forgotten, but Still Deadly’, 9 March 2005, Yale Global Online, available at http://yaleglobal.yale.edu/display.article?id=5398.

23 See Schabas, supra note 17, at 37–9.

24 HRW, supra note 5, at 3–4.

25 Ibid., at 2.

26 See Amnesty, supra note 5, at 4. The letter on Amnesty's website mistakenly cites Article 43(1).

27 See HRW, supra note 5, at 8; see also Amnesty, supra note 5, at 6–8.

28 See HRW, supra note 5, at 9–11.

29 Ibid., at 12.

30 Ibid., at 19–20.

31 B. Chigara, Amnesty in International Law: The Legality under International Law of National Amnesty Laws (2002), 4.

32 See Amnesty, supra note 5, at 3.

33 Ibid, at 1.

34 Ibid., at 1; see also HRW, supra note 5, at 7–9.

35 Blumenson, E., ‘The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court’, (2006) 44 Columbia Journal of Transnational Law 797, at 820.

36 Amnesty, supra note 5, at 2.

37 See the comments by R. Goldstone in Amnesty, supra note 5, at 7–8.

38 See HRW, supra note 5, at 15.

39 R. Goldstone, ‘Bringing War Criminals to Justice in an Ongoing War’, in J. Moore (ed.), Hard Choices: Moral Dilemmas in Humanitarian Intervention (1998), 205–6.

40 Cited in P. R. Williams and M. P. Scharf, Peace with Justice? War Crimes and Accountability in the Former Yugoslavia (2002), 17; see also Goldstone, supra note 39, at 201–4.

41 Testimony of C. Dufka, Human Rights Watch, in US Congress, House Committee on International Relations, Subcommittee on Africa, Confronting War Crimes in Africa, Hearings, 24 June 2004, at 54.

42 See Williams and Scharf, supra note 40, at 159.

43 See Dufka Testimony, supra note 41, at 55–6.

44 L. N. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (2002), 70 (emphasis added).

45 See Amnesty, supra note 5, at 7.

46 N. J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (2000), 253–5.

47 See Bass, supra note 7, at 229–31.

48 S. L. Burg, ‘Coercive Diplomacy in the Balkans: The Use of Force in Bosnia and Kosovo’, in R. J. Art and P. M. Cronin, The United States and Coercive Diplomacy (2003), 65–6.

49 J. Traub, The Best Intentions: Kofi Annan and the UN in the Era of American World Power (2006), 117–20.

50 P. Hirsh, ‘Sierra Leone’, in D. M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (2004), 528–30.

51 In both Germany and Japan, the United States confronted the risk of a political backlash against the trials on the part of politicians and elites that Washington saw as the most reliable allies in the Cold War confrontation with the Soviet Union. This eventually led the US to back off from war crimes prosecutions in both countries. See P. Maguire, Law and War: An American Story (2000), ch. 5.

52 For an analysis of the degree to which the replacement of national trials with international tribunals can change this dynamic, see Peskin, V., ‘Beyond Victor's Justice: The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda’, (2005) 4 Journal of Human Rights, at 213–31.

53 Quoted in A. Lebor, ‘Complicity with Evil’: The United Nations in the Age of Modern Genocide (2006), 233.

54 Bass, supra note 7, at 232.

55 See Burg, supra note 48, at 94–6.

56 Williams and Scharf, supra note 40, at 206–7; see also the remarks of D. Owen in P. Hazan, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia (2004), 61–2.

57 See Allen, supra note 22, at 117–22.

58 See Baines, E. K., ‘The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda’, (2007) 1 International Journal of Transitional Justice 797, at 103. For post-Juba attitudes see B. Oketch, ‘Negotiators Try Again: Northern Ugandans Say They Prefer Talk of Peace to Talk of War’, 11 July 2008, Institute of War & Peace Reporting (IWPR), available at www.iwpr.net/?p=acr&s=f&o=345650&apc_state=henh.

59 M. Lacey, ‘Victims of Uganda Atrocities Choose a Path of Forgiveness’, New York Times, 18 April 2005, A1. For contrasting views of this advocacy, see Allen, supra note 22, ch. 5; and A. Branch, ‘Uganda's Civil War and the Politics of ICC Intervention’, 2007 (June) 21 Ethics & International Affair 179.

60 See Allen, supra note 22, at 185.

61 ICG, ‘Peace in Northern Uganda?’, African Briefing No. 41, 13 September 2006, 9.

62 See A. Kakaire, ‘Amnesty Offer Blow for Rebel Chief Arrest Plans’, IWPR, 6 July 2006, available at www.iwpr.net/?p=acr&s=f&o=322105&apc_state=henh; K. Glassborow, ‘Peace versus Justice in Uganda’, IWPR, 27 September 2006, available at www.iwpr.net/?p=acr&s=f&o=324160&apc_state=henh; and C. McGreal, ‘Museveni Refuses to Hand over Rebel Leaders to War Crimes Court’, Guardian, 13 March 2008, 18.

63 Allen, supra note 22, at 185–91.

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.

65 See F. Osike, ‘ICC Prosecutor Luis Ocampo at his Office in The Hague’, New Vision (Uganda), 13 July 2007.

66 L. Clifford, ‘Uganda: ICC Policy under Scrutiny’, IWPR, 13 April 2007, available at www.iwpr.net/?p=acr&s=f&o=334879&apc_state=henh. Moreno-Ocampo has been more outspoken in his criticism of the peace process since the talks collapsed. See P. Eichstaedt, ‘ICC Chief Prosecutor Talks Tough’, IWPR, 28 April 2008, available at www.iwpr.net/?p=acr&s=f&o=344364&apc_state=henh.

67 ICG, ‘Northern Uganda Peace Process: The Need to Maintain Momentum’, Africa Briefing No. 46, 14 September 2007, 8–9.

68 A. O'Brien, ‘The Impact of International Justice on Local Peace Initiatives: The Case of Northern Uganda’, available at www.crisisgroup.org/home/index.cfm?id=4927&l=1.

69 A. Dworkin, ‘The Uganda-LRA War Crimes Agreement and the International Criminal Court’, Crimes of War, 25 February 2008, updated 13 March 2008, available at www.crimesofwar.org/onnews/news-uganda2.html.

70 W. W. Burke-White and S. Kaplan, ‘Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation’, Research Paper # 08–13, Public Law and Legal Theory Research Paper Series, April 2008, 5–6.

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 www.icc-cpi.int/library/organs/otp/LMO_20061123_En.pdf.

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 www.iwpr.net/?p=acr&s=f&o=344912&apc_state=henh; and R. Dicker, ‘When Peace Talks Undermine Justice’, International Herald Tribune, 5 July 2008, 6.

78 See K. Glassborow and P. Eichstaedt, ‘LRA Prepares for War, Not Peace’, 24 April 2008, IWPR, available at www.iwpr.net/?p=acr&apc_state=henh&s=f&o=344252.

79 See the comments by C. Hall of Amnesty International and M. Ellis of the International Bar Association in Clifford, supra note 66.

80 See ICG, supra note 61, at 5–7.

81 See ICG, supra note 74, at 13.

82 See Branch, supra note 59, at 184.

83 See ICG, supra note 74, at 7.

84 See E. Mutaizibwa, ‘LRA under Pressure to Back Peace Plan’, IWPR, 20 December 2007, available at www.iwpr.net/?p=acr&s=f&o=341569&apc_state=henpacr; and J. Kyalimpa, ‘Peace Process Falters, Even as Displaced Return Home’, Inter-Press Service, 10 June 2008.

85 E. Mutaizibwa, ‘Planed Attack on LRA “Reckless”’, IWPR, 24 January 2008, available at www.iwpr.net/?p=acr&s=f&o=342181&apc_state=henh.

86 L. M. Howard, UN Peacekeeping in Civil Wars (2008), 307.

87 See Traub, supra note 49, at 355–8, and Marriage, Z., ‘Flip-Flop Rebel, Dollar Soldier: Demobilisation in the Democratic Republic of Congo’, (2007) 7 Conflict, Security & Development 281, at 288.

88 ‘DRC: International Criminal Court Targets Ituri’, IRIN News, 17 July 2003.

89 ICG, ‘Maintaining Momentum in the Congo: The Ituri Problem’, Africa Report No. 84, 26 August 2004, 8–11.

90 Ibid., at 18.

91 N. Grono, The Role of the ICC in African Peace Processes: Mutually Reinforcing or Mutually Exclusive? (2006), 6.

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.

95 Marriage, supra note 87, at 283–4.

96 See Traub, supra note 49, at 352.

97 CIC, supra note 92, at 45–8.

98 ICG, ‘Congo: Consolidating the Peace’, Africa Report No. 128, 5 July 2007, 21–2.

99 On the mixed record of the Bunia court, see ICG, supra note 93, at 21.

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 www.iwpr.net/?p=acr&s=f&o=335266&apc_state=henh.

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.

106 Rodman, K. A., ‘Darfur and the Limits of Legal Deterrence’, (2008) 30 Human Rights Quarterly 529, at 543–8.

107 I. W. Zartman, Ripe for Resolution: Conflict and Intervention in Africa (1989), 268.

108 ICG, ‘Darfur's New Security Reality’, Africa Report No. 134, 26 November 2007, 8–11.

109 Ibid., at 21–3.

110 See Holslag, J., ‘China's Diplomatic Maneuvering on the Question of Darfur’, (2008) 17 Journal of Contemporary China 71.

111 See Prendergast, J. and Thomas-Jensen, C., ‘Blowing the Horn’, (2007) Foreign Affairs 59, at 72–3.

112 J. Norris, D. Sullivan, and J. Prendergast, ‘The Merits of Justice’, (2008) 35 Center for American Progress, Enough Strategy Paper.

113 International Commission of Inquiry on Darfur, Report to the Secretary-General, 25 January 2005, at 133–43; Human Rights Watch, ‘Entrenching Impunity: Government Responsibility for International Crimes in Darfur’, December 2005, 58–63; Statement to the United Nations Security Council pursuant to UNSCR 1593 (2005), 6.

114 Quoted in Blumenson, supra note 35, at 821.

115 T. McConnell, ‘Measures to Keep Peace in Congo Draw Fire’, Christian Science Monitor, 5 September 2006, at 4.

116 L. Clifford, ‘Third Congo Warlord to Face Justice’, IWPR, 7 February 2008, available at www.iwpr.net/?p=acr&s=f&o=342527&apc_state=henh.

117 HRW, ‘ICC/DRC: New War Crimes Suspect Arrested’, 7 February 2008, available at www.hrw.org/english/docs/2008/02/07/congo17996.htm.

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.

121 ICC-OTP, supra note 6, at 8–9; this should be contrasted with a 2004 memorandum which equated ‘the interests of justice’ with the impact ‘on the stability and security of the country concerned’. Cited in Delmas-Marty, M., ‘Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC’, (2005) 3 Journal of International Criminal Justice 2, at 8.

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 www.iwpr.net/?p=acr&s=f&o=333874&apc_state=henh; 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.

129 Cited in Scharf, M., ‘The Case for a Permanent International Truth Commission’, (1999) 7 Duke Journal of Comparative and International Law 375, at 398.

130 Wheeler, supra note 46, at 194–7.

131 Walzer, supra note 126, at 116.

132 Ibid., at 113.

133 Bassiouni, M. C., ‘Justice and Peace: The Importance of Choosing Accountability over Realpolitik’, (2004) 35 Case Western Reserve Law Journal 191, at 191.

134 Bassiouni, M. C., ‘From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court’, (1997) 10 Harvard Human Rights Journal 11, at 12.

135 Bass, G. J., ‘Jus Post Bellum’, (2004) 32 Philosophy & Public Affairs 384, at 405.

136 Shklar, J. N., Legalism: Law, Morals, and Political Trials (1986), 144, 145.

* William R. Cotter Distinguished Teaching Professor of Government, Colby College, Waterville, Maine.

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