The long-running debate about whether seeking justice for grave international crimes interferes with prospects for peace has intensified as the possibility of national leaders being brought to trial for human rights violations becomes more likely. The International Criminal Court (ICC), which is mandated to investigate and prosecute war crimes, crimes against humanity, and genocide, began operations in 2003 and has already issued its first arrest warrant for a sitting head of state—Sudan’s President Omar al-Bashir. That the ICC operates while armed conflicts are ongoing fuels the justice versus peace debate.
Notwithstanding the general recognition that international law obliges countries to prosecute genocide, crimes against humanity, and war crimes, some diplomats tasked with negotiating peace agreements have argued that the prospect of prosecution by the ICC has made achieving their objectives more difficult. Those negotiating peace have tended to view the possibility of prosecution as a dangerous and unfortunate obstacle to their work. Some fear that merely raising the spectre of prosecution will bring an end to fragile peace talks. The temptation to suspend justice in exchange for promises to end a conflict has already arisen with respect to the ICC’s work in Darfur and Uganda, and threatens to recur in coming years as parties and mediators struggle to negotiate peace deals.
In the short term, it is easy to understand the temptation to forego justice in an effort to end armed conflict. However, Human Rights Watch’s (HRW) research demonstrates that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price. Indeed, instead of impeding negotiations or stalling a peaceful transition, remaining firm on the importance of justice — or at least leaving the possibility for justice open, whether meted out by national or international prosecutions — can yield short- and long-term benefits. HRW findings about the relationship between peace and justice are discussed at length in a July 2009 report “Selling Justice Short: Why Accountability Matters for Peace.” While there are many factors that influence the resumption of armed conflict, and we do not assert that impunity is the sole causal factor, a review of HRW experience shows that the impact of justice is too often undervalued when weighing objectives in resolving a conflict.
Case studies in the HRW 2009 report are drawn from 20 years of research in as many countries. The ICC’s reach has understandably been more limited to date. Six years after the court’s operations began, its prosecutor is carrying out investigations in four situations (Uganda; Democratic Republic of Congo; Central African Republic; and Darfur, Sudan) and the ICC’s first trial began in January 2009. The prosecutor’s request to open a fifth investigation—in Kenya—is pending before a pre-trial chamber at the time of writing.
Thus far, however, the ICC’s engagement in these countries lends support to the themes identified in HRW’s broader review of the impact of national and international justice processes on — and, critically, their absence from — peace processes. Drawing on the findings of “Selling Justice Short”, we illustrate below three of these themes with examples drawn from the ICC’s experience to date.
First, arrest warrants do not necessarily hinder, and have at times benefited, peace processes through the marginalization of leaders suspected of serious crimes. Justice is an important objective in its own right and this marginalization effect should not motivate the commencement of justice processes. At the same time it has been a side effect of the issuance of arrest warrants in some cases. In the Uganda situation before the ICC, arrest warrants for leaders of the rebel Lord’s Resistance Army (LRA) appear to have played a role in marginalizing the LRA by isolating it from its base of support in Khartoum. This, as well as an interest in seeing the ICC arrest warrants lifted, appears to have increased the LRA’s interest in participating in peace talks held in Juba, Sudan between 2006-2008. While the Juba talks did not ultimately lead to a final peace agreement, interim agreements —including on the issue of justice for crimes committed during the conflict — were successfully concluded over the course of the talks, suggesting that peace processes can be conducted in the shadow of ICC arrest warrants.
Second, foregoing accountability does not always bring hoped-for benefits. In the Democratic Republic of Congo (DRC), the inclusion of alleged perpetrators in government —granting de facto amnesties, including to Bosco Ntaganda, a former rebel commander wanted by the ICC but integrated into the Congolese army in early 2009 — has had far-reaching negative consequences. Successive attempts to buy compliance with post-conflict transition processes by rewarding criminal suspects with positions of power and authority have only allowed these individuals to continue committing crimes or encouraged others to engage in criminal activity in the hope of receiving similar treatment. Far from bringing peace, this has instead allowed lawlessness and human rights violations to persist.
Third, pursuing international justice can have long-term benefits necessary to sustainable peace, including the reinstatement of the rule of law through domestic prosecutions. ICC investigations in the Central African Republic, for example, have placed pressure on national authorities to take at least nominal steps toward enforcing international humanitarian law. While this has not yet yielded domestic prosecutions, it seems to have at least raised awareness of serious international crimes and the rule of law, which may be the first step toward preventing future crimes. These three themes and examples are dealt with one by one in the paper below.
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* Sara Darehshori is senior counsel and Elizabeth Evenson is counsel in the International Justice Program of Human Rights Watch.
 Former United States special envoy to Sudan, Andrew Natsios, for example, writes “They [the leaders of Sudan’s National Congress Party] are prepared to kill anyone, suffer massive civilian casualties, and violate every international norm of human rights to stay in power, no matter the international pressure, because they worry (correctly) that if they are removed from power, they will face both retaliation at home and war crimes trials abroad.” Andrew Natsios, “Beyond Darfur: Sudan’s Slide Toward Civil War,” Foreign Affairs, May/June 2008, http://www.foreignaffairs.com/articles/63399/andrew-natsios/beyond-darfur (accessed December 14, 2009), p. 82.