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Justice in ConflictThe Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace$

Mark Kersten

Print publication date: 2016

Print ISBN-13: 9780198777144

Published to Oxford Scholarship Online: August 2016

DOI: 10.1093/acprof:oso/9780198777144.001.0001

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Justice in Conflict

Justice in Conflict

Chapter:
(p.1) 1 Justice in Conflict
Source:
Justice in Conflict
Author(s):

Mark Kersten

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198777144.003.0001

Abstract and Keywords

This introductory chapter sets out the aims and subject matter of the book. In the first section, it offers a brief outline of the emergence and development of the ‘peace versus justice’ debate, observing that the debate has become the dominant framing of ICC interventions into ongoing conflicts. The chapter then demonstrates how the ICC was made—and is structured—to intervene in active and ongoing conflicts and has been directed to by individual states and the UN Security Council. The third section addresses the research questions and research design that drove the research behind the book. In the fourth section, the subsequent chapters of the book are briefly outlined. The chapter concludes with a discussion of the book’s overall goals and contributions.

Keywords:   International Criminal Court, International criminal justice, conflict resolution, peace negotiations, peace processes, Libya, Libyan Revolution, Uganda, northern Uganda, Lord’s Resistance Army, Muammar Gaddafi, Joseph Kony

Introduction

Twenty-five years after the war in northern Uganda broke out, a diminutive former commander of the Lord’s Resistance Army (LRA) was escorted by local police officers into a courtroom in Gulu. On 11 July 2011, as a marching band played triumphal music outside the courthouse, a throng of journalists, curious observers and relatives gathered to watch as a shackled Thomas Kwoyelo became the first LRA commander brought before judges to face war crimes charges. In the stifling heat of the overcrowded courtroom, Kwoyelo’s trial began.

Simultaneously, some 2,500 miles north-west of Gulu, the forty-year rule of Muammar Gaddafi was crumbling. Just a few months earlier, Libyan citizens had taken to the streets to protest against the Gaddafi regime. Their demonstrations quickly escalated into calls for regime change. By the summer of 2011, the country was mired in a see-sawing civil war. There was no clear indication that the conflict would end anytime soon, even with a NATO intervention supporting the Libyan opposition. A military stalemate loomed, prodding the parties to the war to consider whether a political solution to the conflict might be reached.

With the exception of their shared temporal relationship, these events might at first appear unconnected and disparate. They are not. The war in northern Uganda between the LRA and the Government of Uganda as well as the uprising and civil war in Libya between the Gaddafi regime and the Libyan opposition were targets for intervention by the International Criminal Court (ICC). In both northern Uganda and Libya, proponents of international criminal justice hailed the involvement of the ICC. In both conflicts, others decried it. Each of these cases emerged as focal points for the so-called ‘peace versus justice’ debate.

Are interventions by the International Criminal Court conducive to peace? Broadly, there are two viewpoints in this continuing debate: on the one hand, proponents maintain that the ICC is necessary for peace and can yield net positive effects on conflict resolution. There are little or no costs, they insist, to pursuing both peace and justice simultaneously. On the other hand, sceptics and critics maintain that interventions by the ICC are ultimately deleterious and risk undermining attempts to resolve conflicts peacefully. If anything, peace must come first, before justice.

The sharply dichotomous nature of this debate is unsatisfactory. It simply is not sufficient to conclude that while some believe there is no peace without justice, (p.2) others will argue that there is no justice without peace. Yet this dominant framing continues to define debates regarding actual and potential ICC interventions. Where there is a potential for the ICC to intervene in an ongoing and active conflict, invocations of the arguments that characterize the ‘peace versus justice’ debate are soon to follow. But as the ICC matures as an institution, a more sophisticated and nuanced understanding of the ICC’s impacts on the complex dynamics of peace, conflict, and justice processes is needed. Contributing to this aim is the ultimate goal of this book.

This introductory chapter proceeds as follows. In the first section, the chapter offers a brief outline of the emergence and development of the ‘peace versus justice’ debate, observing that the debate has become the dominant framing of ICC interventions into ongoing conflicts. The first two sections demonstrate how the ICC was made—and is structured—to intervene in active and ongoing conflicts and has been directed to intervene by individual states and the UN Security Council. The third section addresses the research questions and research design that drove the research behind the book. In the fourth section, the subsequent chapters of the book are briefly outlined. The chapter concludes with a discussion of the book’s overall aims and contributions.

I. The ICC and the Emergence of the Peace-Justice Debate

The project of international criminal justice was revived with great enthusiasm and productivity in the mid-1990s. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created as a response to the Balkan wars of the 1990s and its cousin, the International Criminal Tribunal for Rwanda (ICTR), was set up in the wake of the 1994 genocide. Both were established via the UN Security Council’s Chapter VII powers and sought to prosecute individuals deemed criminally responsible for atrocities. Later, so-called ‘hybrid tribunals’ in Sierra Leone (the Special Court for Sierra Leone), Cambodia (the Extraordinary Chambers in the Courts of Cambodia), Lebanon (the Special Tribunal for Lebanon), and the Central African Republic (the Special Criminal Court) were added to a growing cohort of international institutions mandated to investigate and bring individuals responsible for international crimes to justice. The pinnacle of post-Cold War thinking on international criminal justice came in 1998, as diplomats gathered in Rome to negotiate the Rome Statute of the International Criminal Court (ICC) and created the first-ever permanent institution of international criminal justice. With the sixtieth ratification of the Statute in July 2002, the ICC became a functioning entity. The establishment of this diverse gamut of institutions, all of which share the goal of bringing to account individual perpetrators of mass atrocities, resuscitated international criminal justice from its alleged Cold War coma; the legacy of the Nuremberg trials, where senior Nazi officials were tried following the Second World War, had seemingly and finally been fulfilled.

(p.3) But this new era of international criminal justice is distinct from the Nuremberg model. The Nuremberg and Tokyo International Military Tribunals were set up to prosecute and punish individuals following the Allied powers’ victory in the Second World War. Since the 1990s, however, the practices of war, conflict resolution and international criminal justice have collided. The ICC is the apogee of this collision, resulting in an institution predisposed to intervening while conflicts are ongoing.

At the same time, civil wars waged since the end of the Cold War have increasingly been resolved through diplomatic rather than military means (see Licklider 1993; Zartman 2005, 2; Wallensteen 2007; Sisk 2008, 195; Toft 2010, 1). The introduction of international criminal justice into the dynamics of political conflict and conflict resolution has created thus new dilemmas and challenges for actors seeking to resolve war through negotiated settlement. To be absolutely clear from the outset, it is evident that the ICC has complicated conflict resolution. What is less clear is how it has done so and whether this is ultimately a help or hindrance to the establishment of peace.

The dilemma of pursuing criminal accountability in the context of ongoing and active conflict has been captured in the so-called ‘peace versus justice’ debate. This debate, it should be noted, did not first emerge with the creation of the ICC. Its essence was apparent during the Cold War. As early as 1961, the German scholar Otto Kirchheimer contemplated whether pursuing justice may ‘backfire … if it induced the leaders of a future war to fight to the bitter end rather than surrender and face the possible future of war criminals’ (see Elster 2006, 49). Scholars of international relations have also long wrestled with the theoretical relationship between peace and justice (see, e.g. Bull 2002), whilst the political transitions in South America were characterized by a balancing act between the prerogatives of justice and the desire for stability (see, e.g. Jelin 1994; Nino 1996; Lutz and Sikkink 2000; Crenzel 2008). Despite the fact that the scales of peace and justice generally balanced heavily in favour of peace as order (Banks 1987, 261–5), the pursuit of international justice and accountability within transitional states prior to the end of the Cold War was instrumental in the development of the global human rights movement and in the creation of a panoply of tribunals responsible for international criminal justice—including the ICC (see Peskin and Boduszynski 2003, 1121; see also Kerr and Mobekk 2007; Akhavan 2009).

The creation of the ICTR and ICTY fundamentally, however, altered the functional relationship between peace and justice. Both ad hoc tribunals were established by the United Nations under Chapter VII of the UN Charter (1945) which pertains to ‘Actions with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’. In particular, the ICTY was created to provide justice as well as contribute to the restoration of peace and security in the former Yugoslavia.1 The ICTY’s mandate reflected a significant change in how justice should and (p.4) would be pursued. From the Nuremberg trials to the trials of Argentina’s military junta, justice had been pursued after the conclusion of violence. The ICTY, however, was to contribute to both bringing justice as well as resolving an ongoing conflict. As Simon Chesterman (2001, 149) notes, ‘[t]‌he decision to commence prosecutions while the conflict continued was a substantial departure from the Nuremberg mold.’ The tribunal, and by extension international criminal law, surfaced as a central features of conflict resolution efforts.

Predictably, the question and controversy of ‘peace versus justice’ embroiled the tribunal from its inception (Akhavan 2009). The quandary was clear: how could the international community seek a negotiated settlement to the Bosnian war when those with whom they sought to negotiate were precisely the actors who were under investigation by the Tribunal? (see Bass 2000, 211; William and Scharf 2002, 23). For some, a tribunal that was initially perceived as ‘little more than a public relations device’ (Holbrooke 1998, 189–90) became a tool that could play a key role in complementing efforts to establish peace. For others, the ICTY emerged as an institution which potentially conflicted with and obstructed efforts to end the war. The stakes—and the expectations—were high. In 1995, ICTY Chief Prosecutor Richard Goldstone (1996, 486) wrote that what brings peace and justice together are decisions to confront the past which ‘may be crucial to the prospects for future peace and prosperity. The stability of an emerging democracy, and perhaps even the outcome of a war that is still being waged, may depend on the wisdom behind such a policy decision.’ Still, while the ICTY and other tribunals, notably the Special Court for Sierra Leone, have also inspired debates on the relationship between peace and justice (see Hayner 2007; Moghalu 2008, 104–25), it was the creation of the ICC that made permanent a debate which was until then sporadic, context-specific, and ad hoc.

II. The Politics of ICC Interventions in Ongoing and Active Conflicts

The ICC has emerged as an increasingly relevant actor in ongoing conflicts in which war crimes, crimes against humanity, and genocide have been perpetrated and where the Court has—or has been granted—jurisdiction. This ‘potential to shift the delivery of post-conflict justice towards in-conflict justice’ is a defining feature of the Court and a result of its permanent, rather than ad hoc or temporary, nature (Kastner 2011, 14). As Mahnoush H. Arsanjani and W. Michael Reisman (2005, 385) write, ‘[t]‌he ICC is the archetypal ex ante tribunal’, an institution that is ‘established before an international security problem has been resolved or even manifested itself, or [is] established in the midst of the conflict in which the alleged crimes occurred’ (see also Sriram 2007, 579).

The combination of its limitless, forward-looking temporal jurisdiction in those states where it has jurisdiction to investigate crimes and the fact that it can only investigate situations after 1 July 2002, suggests that the Court (p.5) is predisposed to intervening in active conflicts (see also Waddell and Clark 2008a, 8). Where the Court has jurisdiction, there is nothing to preclude the Prosecutor from intervening before a conflict has ended. Moreover, debates on potential interventions in Syria (Jose 2013; Cronin-Furman 2014), Palestine (Falk 2014; Human Rights Watch 2014), and Ukraine (Agence France-Press 2014; Phillips 2014; Whiting 2014) illustrate that the ICC is expected to be amongst the ‘first-responders’ when atrocities occur in the context of violent conflict and unrest. As Rebecca Hamilton (2014) observes: ‘Popular sentiment points to the International Criminal Court (ICC) as the obvious venue for any crisis that makes world headlines.’ Moreover, the widespread claims, as explored in Chapter 2, that international criminal law can deter potential perpetrators and that there is ‘no peace without justice’ suggest that, for proponents, it is also necessary for the Court to intervene in ongoing conflicts—and that it should do so regularly in order to affirm the utility of justice as a means to prevent crimes, resolve conflicts, and bolster peace.

The proclivity of the ICC to intervene in active wars (see Table 1.1) is central to the ‘peace versus justice debate’. Indeed, the ‘conceptual challenge’ at the core of the peace-justice debate is a product of the ICC being ‘the first permanent international war crimes tribunal … which will regularly be active during ongoing conflict’ (Papenfuß 2008, 1). But how has the ICC intervened in ongoing and active conflicts? Interventions into conflicts do not derive from some Archimedean nowhere devoid of politics and political interest. The aim of the rest of this section is to demonstrate how and by whom the ICC has been requested to intervene in active wars.

Table 1.1 ICC Interventions to Date

State (Date of ICC Intervention)

Trigger Type

Primary Focus of ICC Investigation at Time of Intervention

Status of Conflict at Time of ICC Intervention

Uganda (2003)

Self-Referral

Ongoing Conflict

Active

Democratic Republic of Congo (2004)

Self-Referral

Ongoing Conflict(s)

Active

Central African Republic (2004)

Self-Referral

Ongoing Conflict

Active

Darfur/Sudan (2005)

UNSC Referral

Ongoing Conflict

Active

Kenya (2010)

Proprio Motu

2007/08 Post-Election Violence

Concluded

Ivory Coast (2011)

Proprio Motu

2010/11 Post-Election Violence and Ongoing Conflict

Concluded

Libya (2011)

UNSC Referral

Revolution and Ongoing Conflict

Active

Mali (2012)

Self-Referral

Ongoing Conflict

Active

(p.6) There are three ways in which the ICC’s jurisdiction can be triggered, as mandated by Article 13 of the Rome Statute (1998): where a situation is referred by a state party; where a situation is referred to the ICC by the United Nations Security Council, acting under Chapter VII of the UN Charter; or upon the Prosecutor’s own volition, via the Prosecutor’s prorio motu powers. As of writing, the ICC has opened eight official investigations—four by self-referral (northern Uganda, Democratic Republic of Congo, Central African Republic, and Mali), two in response to UN Security Council referrals (Darfur and Libya), and two via the Prosecutor’s proprio motu powers (Kenya and Ivory Coast). The former two referral types—self-referrals and UN Security Council referrals—have guided the ICC into intervening in ongoing and active conflicts (see Table 1.1 above). These two referral types are thus the focus of this book.

(i) Self-referring governments and the ICC

The early years of the ICC’s existence were marked by a certain level of institutional insecurity. The creation of the Court in 1998 was an unprecedented achievement. It promised to transcend the traditional realpolitik of international relations and offer independent justice and accountability in the name of humanity and liberal cosmopolitanism (see Ainley 2008; Franceschet 2009; Kersten 2014a). But serious questions faced the institution, the answers to which would determine whether it would emerge as a permanent feature of international relations: would the international community support the ICC sufficiently for it to survive? Could an independent Prosecutor stand up to major global powers? How would it get its first cases and where would it get them from? How would states react to an international tribunal intervening in their sovereign, domestic affairs?

A sense of insecurity is evident in how key actors at the ICC describe its first days. Luis Moreno-Ocampo, the Court’s first Chief Prosecutor has admitted that it amounted to ‘[s]‌ix empty floors, two employees. Everyone’s thinking it would be closed.’ (See Al Jazeera America 2015). Judge Sang-Hyun Song (2010), the Court’s President from 2009 to 2015 and an ICC Judge from 2003 to 2015, has similarly conceded that ‘even the judges first appointed in 2003 were unsure that the Court could survive the scepticism and hostilities. Privately some judges suggested that it could collapse within a couple of years.’ In order to avoid such a fate, the Court and the Office of the Prosecutor (OTP) in particular, needed a politically sensitive—and cautious—strategy.

But the Court immediately faced a hostile political audience, a reality most pronounced in the institution’s relationship with the US. The administration of George W. Bush pursued policies to actively undermine and isolate the Court.2 If the ICC was to survive, it would need to demonstrate that it did not pose a threat to American international interests. As David Bosco (2014) has shown, in (p.7) its first years, the ICC’s policy towards the US, and major powers more broadly, was one of accommodation. This was evident from assessing Moreno-Ocampo’s decision-making and the Court’s record. As Bosco (ibid. 19) writes: ‘By focusing on those areas of the world where major powers support the court’s involvement—or at least do not oppose it—the prosecutor may be able to convince even skeptical countries that the court poses little danger to their interests.’ This could be achieved by opening investigations in states where US interests were few and by demonstrating that the Court would not play roughshod with the principle of sovereignty by intervening in situations where states had not given their express approval. The Court thus focused primarily on accepting invitations from ICC member states to investigate conflicts taking place on their territory. This came as somewhat of a surprise to Court observers. The idea behind state referrals as a trigger mechanism was that states would refer each other and not themselves to the Court (Schabas 2007, 145). But these ‘self-referrals’ were useful for the new institution and the OTP recognized their potential political utility. As Benjamin N. Schiff (2008, 225) writes, ‘the OTP shifted emphasis from a legalistic approach to a somewhat more political-diplomatic one’ in an attempt to actively negotiate self-referrals from states. As of 2014, the Court has opened four official investigations into situations following the receipt of a self-referral: northern Uganda (2003), the Democratic Republic of Congo (2004), the Central African Republic (2004), and Mali (2012). Each situation constituted an ongoing and active conflict at the time of referral. They are also notable for the fact that none have significant major power interests at stake and all are situations in which the UN had been heavily involved prior to the ICC’s intervention (Bosco 2014, 89; see also Sachs 2008, 6; Schabas 2010, 548).

(ii) The Security Council referrals and the ICC

The relationship between the UN Security Council and the ICC played a dominant—and contentious—role at the Rome Statute negotiations (Glasius 2006, 47–60; Schabas 2012, 90–1). Proponents of the ICC were concerned that giving the UN Security Council too much influence over the functioning of the Court would deeply politicize the ICC’s work and place international criminal justice at the whim of the UN Security Council’s five permanent members. This was precisely the politico-judicial relationship they had sought to avoid and believed could be transcended.3 Proponents consequently sought a Court that would be independent of the Council and premised upon an independent Chief Prosecutor. Security Council members—especially the US, Russia, and China—opposed an independent Prosecutor who, they felt, could handcuff the Council in its role of maintaining and restoring international peace and security (Glasius 2006, 56). Ultimately, however, a compromise position was reached in an attempt to assuage the concerns of all sides (Glasius 2006, 51). The so-called ‘Singaporean (p.8) compromise’ was reflected in Article 16 of the Rome Statute (1998), which allows the Security Council to defer any ICC investigation or prosecution deemed to be a threat to international peace and security for up to twelve months (renewable yearly). Crucially, under Article 13b of the Rome Statute (1998), the Council is also able to refer non-member states to the Court under Chapter VII of the UN Charter. To date, it has done so on two occasions—in the case of Darfur in 2005 and in the case of Libya in 2011. Both were ongoing and active conflicts at the time of referral.

In 2005, the ICC received a referral of the situation in Darfur from the UN Security Council. This required an abstention from the US (as well as non-ICC member states Russia and China) during the vote on Resolution 1593 (United Nations Security Council 2005). The OTP readily accepted the referral when it was made.4 Since then, five warrants have been issued including, most dramatically, the indictments for Sudanese President Omar al-Bashir on the grounds that he is responsible for the commission of war crimes, crimes against humanity, and genocide in Darfur.5

In February 2011, the UN Security Council once again invited the ICC to investigate an ongoing and active conflict, this time with a unanimous referral of Libya to the Court. At the time, India’s Ambassador to the UN, sitting on the Security Council, exclaimed his belief that ‘the referral of the situation to the International Criminal Court would help to bring about the end of violence’ (see Security Council 2011). Richard Dicker of Human Rights Watch (2011a) praised the Security Council, stating that: ‘The United Nations is showing concerted international resolve to pressure Gaddafi and his henchmen to end their murderous attacks on the Libyan population.’ What both statements made clear was the conviction that when the Security Council refers situations to the ICC, the role of the Court is to contribute to a cessation of violence in the context of an active political conflict.

As a permanent institution with a mandate to ‘end impunity’, the ICC is tailored and expected to intervene in ongoing wars. It has done so at the request of its member states as well as the UN Security Council. It is the effects of the Court’s interventions that the ‘peace versus justice’ debate seeks to establish.

(p.9) III. Research Questions and Aims

This book represents an in-depth study of the effects of the ICC’s intervention on peace, justice and conflict processes—and not just on ‘peace’. The narratives, practices, and processes of peace, conflict and justice cannot be disentangled. They are interdependent and feed into one another (see Figure 1.1).

Justice in Conflict

Figure 1.1 Peace, Justice, and Conflict Processes

The research was guided by three separate but related research questions:

  1. (i) How should we study the effects of the ICC on the conflicts in which it intervenes?

  2. (ii) What are the effects of the ICC on peace, justice, and conflict processes in northern Uganda and Libya?

  3. (iii) Why does the ICC have these effects on peace, justice, and conflict processes?

(i) How should we study the effects of the ICC interventions?

As shown in detail in Chapter 2, the arguments which claim that the pursuit of international criminal justice produces positive effects on ‘peace’ (ending impunity; deterring future crimes; and marginalizing perpetrators) as well as claims which insist that justice makes attaining peace more difficult (instigating violence; undermining peace negotiations; and being no substitute for more concerted, coercive action) are problematic and insufficient. They have entrenched a binary, dichotomous vision of the relationship between peace and international criminal justice. It is hoped that this book can contribute a clearer research design for identifying and assessing the Court’s impacts on the situations in which it intervenes.

(p.10) In order to answer the question: How should we study the ICC’s impacts?, insights were employed from the fields of conflict resolution, negotiation theory, and conflict and peace studies in order to develop a novel analytical framework which can provide a rigorous and nuanced approach to identifying and assessing the effects of the ICC on peace, conflict, and justice processes. The analytical framework uses neither wholly deductive nor inductive reasoning. Instead, it is the result of an abductive approach to research design (see Dubois and Gadde 2002; Kolko 2010; Thomas 2010). In developing the framework, a broad review was conducted of conflict and peace studies, conflict resolution, and negotiation literature as well as literature on the effects of the international criminal justice on peace processes in order to identify key theories relevant to peace, justice, and conflict processes. The analytical framework was, in the first instance, derived from this review. Second, the framework was used as a means to measure the effects of the ICC on interventions in two cases, Libya and northern Uganda. Data from secondary and primary sources was collected and was ‘fed into’ the analytical framework (see Chapter 3). As additional data was received, the framework was revised and, in turn, more relevant data were sought. In other words, these phases of research were interrelated rather than fully distinct or separate. In their analysis of abductive logic, Dubois and Gadde (2002, 555) refer to this process as ‘systemic combining’ and observe that:

The preliminary analytical framework consists of articulated ‘preconceptions’. Over time, it is developed according to what is discovered through the empirical fieldwork, as well as through analysis and interpretation. This stems from the fact that theory cannot be understood without empirical observation and vice versa.

The research conducted for this book, as elaborated in greater detail below, rests on case-study research. Such research requires the development of ‘theoretical frameworks during the course of the research which inform and make sense of the data and which can be systematically examined during the case study for plausibility’ (Hartley 2005, 324). Again, the processes of generating the analytical framework and generating empirical data were never entirely divorced. They worked in symbiosis, each refining the other as research progressed. Importantly, this approach is dynamic and does not portend to provide rigid conclusions or generalizations regarding the ICC’s effects on peace, conflict, or justice processes (Schvaneveldt and Cohen 2010).

Ultimately, the development of this analytical framework is intended to challenge the binary conclusions regarding the effects of ICC interventions on conflicts and to expose the fact that the Court has complex and diverse effects through time, within and between cases, as well as on different elements of any given peace process. The framework allows for a novel and nuanced way in which to employ structured and rigorous research to study the ICC and its impacts on ongoing and active conflicts.

As suggested above, the framework was used as a roadmap to examine and assess the effects of ICC interventions in northern Uganda and Libya. As a result, a case-study approach was employed (Yin 2003, 4–11). The benefit of case-study (p.11) analysis is that it fosters both theoretical and empirical contributions. As Jean Hartley (2005, 323) writes, the aim of case-study research ‘is to provide an analysis of the context and processes which illuminate the theoretical issues being studied.’ Hartley (ibid.) reminds us that ‘[a]‌ case study is not a method but a research strategy.’ In line with such a strategy, the research draws on multiple sources of evidence (Eisenhardt 1989, 534; Yin 2003, 11): semi-structured interviews, relevant reports and documents, and secondary source literature. In addition, research benefited from ‘opportunistic’ data collection (see Hartley 2005, 324) in the form of diaries from a former LRA commander. Wherever possible, data collected through fieldwork was cross-validated and triangulated with secondary sources and documents (Wolcott 1988, 192; Stake 1995, 107–8). Approximately sixty-five interviews were conducted with individuals who had intimate knowledge of the conflicts in northern Uganda and Libya. They included political figures involved in negotiations, senior combatants, civil society leaders, journalists, and staff from international organizations. Given the diversity of actors interviewed, a semi-structured approach to conducting interviews was employed.

Three months were spent by the author based at the Refugee Law Project in Kampala and Gulu, northern Uganda. During this period, approximately forty interviews were conducted. Gathering primary data proved much more difficult with regard to Libya. Over a year was spent at the London-based Lawyers for Justice in Libya (LFJL) with the aspiration of travelling with LFJL to Libya to conduct interviews. However, as time passed and the security situation deteriorated this became unfeasible. As a result, between May 2013 and January 2014, the author organized interviews with approximately twenty individuals with first-hand knowledge of Libya and the civil war in person, as well as via Skype and telephone.

(ii) What are the effects of ICC interventions in northern Uganda and Libya?

Chapter 2 outlines the key arguments made for (ending impunity, marginalization, and deterrence/prevention) and against (instigating violence, undermining peace negotiations, and acting as a moral hazard) the pursuit of international criminal justice in the context of ongoing and active conflicts. What becomes clear in this review is that the views expressed within the ‘peace versus justice’ debate remain polarized (Crocker 2004, 2; Sriram 2004, 6; Freeman 2009, 25; Clark 2011). The core chapters of this book, Chapters 4–7, show that, while claims within the ‘peace versus justice’ debate were applied to the ICC’s intervention in both northern Uganda and Libya, they do not represent an accurate picture of the actual effects of the ICC on peace, justice, and conflict processes in either case.

These two cases have never been studied in relation to each other, but were chosen for their points of comparison. The ICC intervened in northern Uganda after the situation was referred to the Court by the Government of Uganda in 2004. The self-referral produced the ICC’s first-ever investigation. In 2005, the (p.12) Court issued five arrest warrants for senior commanders of the LRA. While the conflict in the region has seen very little international military engagement, official peace negotiations were held between the Government and the LRA in Juba, South Sudan, from 2006–8. In contrast, the situation in Libya was referred to the ICC by the UN Security Council in 2011. The Court subsequently issued arrest warrants for government leaders, including Libyan leader Muammar Gaddafi, at the behest of the UN Security Council. In Libya, international criminal justice was pursued in combination with the NATO-led military engagement. No official peace negotiations took place and the Gaddafi regime is no longer in power. The divergence in referral-type, the targets of ICC indictments, and the existence of official negotiations provide valuable differences and possible comparative insights into the effects of the ICC across these two cases.

(iii) Why does the ICC have the effects that it does?

Rather than solely identifying and assessing the effects of the ICC on the conflicts in which it intervenes, the book takes an extra step in asking why the Court has the effects on peace, justice, and conflict processes that it does. This can only be answered, it is argued, by looking behind the veil of ICC decision-making. There is a risk of viewing the Court as an institution that produces effects only via its prosecutorial decisions and judicial rulings. Instead, and as argued in this book, what goes on within the Court and how the specific decisions made in the ICC and, in particular, the OTP, shapes the effects of the Court on the situations in which it intervenes.

In order to answer why the ICC targets who it does and who it does not, it was necessary to conduct interviews with staff members at the Court. In 2013 and in the subsequent months, interviews were conducted with current and former senior ICC staff. These semi-structured interviews were conducted in The Hague as well as over Skype and were aimed at ascertaining the link between the OTP’s decision-making and the effects the Court ultimately has on peace, conflict, and justice processes.

IV. Book Outline

The pursuits and practices of conflict resolution and international criminal justice have become increasingly intertwined. As argued above, the Court is predisposed to intervening in ongoing wars: out of the eight situations in which the ICC has issued arrest warrants, six constitute active violent political conflicts at the time of the Court’s intervention. The ICC thus has the potential to shape efforts to resolve conflict through peaceful means and a debate about the relationship between ‘peace’ and ‘justice’ will continue to capture the imagination of scholars and observers. But what insights has this debate generated thus far—and are they sufficient in identifying and assessing the effects of the ICC on peace, justice, and conflict processes?

(p.13) The short answer is: ‘no’. Chapter 2 provides a comprehensive and critical examination of key arguments put forward in the ‘peace versus justice’ debate. The core of the chapter outlines and assesses the arguments that have been proffered for and against the role of international criminal justice in the context of ongoing and active conflicts. The arguments in favour of pursuing international criminal justice trials as means to positively affect peace examined in this chapter are: ending impunity; the potential deterrence effect of criminal prosecutions; and the marginalization of perpetrators. The arguments examined against the pursuit of accountability in the context of ongoing conflict are: that trials instigate and prolong violence; that international criminal justice undermines peace negotiations; and that accountability is no substitute for more concerted action to end war. It is demonstrated that neither proponents nor critics are able to conclusively show that there is ‘no peace without justice’ or ‘no justice without peace.’ But should the ICC be judged on its capacity to influence ‘peace’? Using claims made by senior figures at the Court, the chapter argues that it can and it should. However, given that the claims made to date—on either side of the debate—are unsatisfactory, there is a need to rethink how to study the effects of the ICC in a way that allows for a more nuanced assessment of the effects of the Court on peace, justice, and conflict processes.

A more nuanced examination and treatment of the effects of the ICC can be achieved by embracing key insights from scholarship on peace negotiations, conflict resolution, and conflict and peace studies. This is the aim of Chapter 3. Drawing on theoretical insights from the aforementioned fields, the chapter develops an analytical framework that parses out key phases, dynamics, and issues that are widely recognized as relevant to the success and failure of peace processes (see Figure 3.1).

It is argued that the primary effects of ICC interventions on ongoing conflicts are on the conflict narrative—the dominant understanding and discourse of the causes and dynamics of the war, and on the attitudes and incentives of warring parties towards committing to a peace process. The effect of the ICC on these two issues subsequently affects the three distinct stages of a peace process: the pre-negotiation, negotiation, and post-negotiation phases. Key constitutive elements of these phases of a peace process are delineated and the possible effects of the ICC on each are discussed. In the pre-negotiation phase, these are: the timing of negotiations; the location of peace negotiations; and the mediation strategies employed to get the parties to the negotiating table. In the peace negotiation phase, the potential effects of the ICC on the composition of delegations at peace talks and the agenda of the negotiations are outlined. In the post-negotiation phase, the chapter asks whether a given peace process was actually about peace or was susceptible to spoilers, as well as the potential effects of the Court on the creation and implementation of post-conflict justice and accountability mechanisms. This framework provides the roadmap that is subsequently employed to assess the two case studies at the heart of the research, namely the ICC’s interventions into northern Uganda and Libya.

(p.14) In 2003, the Government of Uganda (GoU) requested that the ICC intervene and investigate the situation in northern Uganda where the GoU had been engaged in a long-standing and brutal conflict with the LRA. In 2005, the Court issued five arrest warrants for members of the LRA’s senior command, including leader Joseph Kony. The Court’s intervention and its issuance of indictments against LRA commanders instigated a polarizing debate regarding the role and impact of international criminal justice in northern Uganda. Many openly feared that the ICC’s intervention would undermine any potential peace process. But three years after Uganda’s self-referral—and just one year after the warrants were issued—the GoU and the LRA entered into what was widely recognized as the best opportunity to negotiate a comprehensive solution to the war. So how did the parties get to the negotiating table and what, if any, role did the ICC play?

Chapter 4 begins by contextualizing the conflict between the LRA and the GoU, focusing on the causes and dynamics of the war. The chapter then examines the effects of the ICC on the conflict narrative, the attitudes and incentives of parties to committing to the Juba peace process, as well as the pre-negotiation phase of the Juba peace process. It is argued that: the ICC’s intervention has contributed to an obfuscation of the political causes of the war and the political nature of the violence waged against northern Ugandans—by both the LRA and the GoU; it has bolstered the narrative of a ‘good’, just, and legitimate government fighting an ‘evil’, mad, criminal rebel group; and it has reaffirmed and entrenched a conflict narrative that has focused primarily on the role and responsibility of the LRA and Kony, in particular, in propagating violence. However, rather than providing a disincentive for Kony and the LRA to negotiate, it is argued that the ICC’s intervention and the conflict narrative it helped entrench actually contributed positively to the LRA’s decision to commit to engaging in peace talks. There is little evidence that it directly contributed to the GoU’s commitment to do likewise.

The chapter subsequently explores how these effects shaped the pre-negotiation stage of the Juba Peace Process and, in particular, the timing of negotiations, the location of the peace talks, and the mediation strategies employed to get the warring parties to the negotiating table. With regard to the timing of the Juba negotiations, it is concluded that the ICC may have played a role but that it did so in combination with a variety of other factors, including the Comprehensive Peace Agreement reached between Sudan and South Sudan in 2005. The peace talks took place in Juba, the capital of South Sudan, a country which was eager to eliminate the LRA from its territory. Importantly, South Sudan is not a member of the ICC. It is argued that this fact played a role in the decision-making on where to hold negotiations between the LRA and GoU. Lastly, dealing with the ICC warrants head on formed a key element of the mediation strategies employed by South Sudan’s Vice President, Riek Machar, to get the LRA to the negotiating table. Given the LRA’s interest in dealing with the arrest warrants and challenging the dominant conflict narrative of the war, this was to be expected. Overall, despite oft-stated fears that the ICC would preclude negotiations from moving forward, the Court’s intervention in northern Uganda appears to have contributed (p.15) positively or, in some instances, negligibly to the onset of negotiations between the LRA and GoU.

Chapter 5 examines the effects of the ICC on the 2006–8 peace negotiations between the LRA and GoU, as well as the effects of the ICC on post-Juba peace and justice in northern Uganda. The chapter first considers the Court’s effects on the composition of the delegations at Juba and the agenda of the peace talks. It is argued that the ICC had a significant impact on the composition of the LRA’s delegation at Juba. The indictments prevented senior LRA commanders, notably Joseph Kony and his second-in-command, Vincent Otti, from attending the peace talks. This undermined the negotiations, as the LRA delegation that was sent to Juba was unrepresentative of the LRA high command and, as a consequence, LRA delegates pursued narrow, personal interests. With regard to the talks’ agenda, the ICC had the effect of ensuring that justice and accountability would be central to the negotiations, something that had not occurred in previous peace talks between the LRA and GoU. No suitable approach to dealing with the arrest warrants was ultimately identified and, in the end, the talks collapsed.

The fact that the LRA and GoU decided to enter peace negotiations should not be equated with a commitment on the part of either to see them through. The chapter assesses whether the Juba peace talks were genuinely about achieving peace, demonstrating that there is compelling evidence that neither the LRA nor the GoU were fully committed to a comprehensive peace and that both saw their engagement in peace talks as strategically beneficial. It is thus concluded that the ICC cannot bear responsibility for the failure of the Juba peace negotiations.

In the last section, the chapter examines the effects of the ICC on post-conflict peace and justice in northern Uganda. Post-Juba, the ICC has had no known negative effects on the level of stability and security in northern Uganda, suggesting that northern Ugandans are no longer concerned with an issue which has not affected the current stability that they enjoy. The chapter then examines the creation of the International Crimes Division (ICD) of the High Court of Uganda, a judicial body that was negotiated at the Juba peace talks as an institution that could prosecute individuals responsible for committing crimes during the war and which could be employed to challenge admissibility of the ICC in northern Uganda. The primary focus of this section of the chapter is on Uganda’s first-ever war crimes trial—that of former LRA commander, Thomas Kwoyelo. It is argued that the ICD is ultimately an institution created to selectively prosecute LRA combatants and, as such, risks entrenching rather than challenging the conflict narrative in northern Uganda.

Chapters 6 and 7 turn to the case of the ICC’s intervention in Libya. In February 2011, the United Nations Security Council unanimously referred the deteriorating situation in Libya to the ICC. The Court subsequently—and with unprecedented speed—opened an official investigation into the civil unrest in the country. Just four months later, three arrest warrants were issued, for Libyan leader, Muammar Gaddafi, his son, Saif al-Islam Gaddafi and his security and intelligence chief, Abdullah al-Senussi. In response, many commentators wondered whether the ICC’s intervention would help or hinder attempts to resolve the (p.16) Libyan civil war. Most commentators simply recycled the language of the ‘peace versus justice’ debate. But their judgements were rarely, if ever, based on detailed knowledge of the complex and dynamic realities on the ground.

Chapter 6 begins with an overview of the causes and dynamics of the Libyan Revolution and the civil war between the Gaddafi regime and the Libyan opposition, arguing that the uprising in Libya was initially about bringing forward and addressing socio-economic and political grievances—and not about regime change. The core of the chapter examines the empirical effects of the ICC on the conflict and attempts to initiate direct peace negotiations between the regime and the Libyan opposition’s political wing, the National Transitional Council (NTC). The effects of the Court’s intervention on four issues in particular are examined: the conflict narrative and dominant understanding of the Libyan conflict; the attitudes and incentives of the actors involved in the war towards negotiations; the mediation strategies employed to encourage the rebels and the Gaddafi regime to negotiate and, in particular, to determine the fate of Gaddafi; and the potential emergence of a ripe moment for a negotiated settlement to the civil war.6

The clearest effect of the ICC’s intervention in Libya was its impact on shaping a narrative and understanding of the Libyan war that painted the regime as beyond the pale and the opposition as ‘good’ and just. In doing so, it helped justify the goal of regime change and obfuscated both the causes of the conflict as well as the Western-led political rehabilitation of the Gaddafi regime in the years preceding the war. These effects on the conflict’s narrative, in turn, had implications on other important dynamics. The conflict narrative emboldened the rebels to commit to a military victory and bolstered the resolve of their claim that Gaddafi’s departure from power was a necessary precondition to any potential negotiated settlement. As a result, the ICC may have contributed to preventing the emergence of a mutually hurting stalemate and the creation of a ripe moment conducive to peace talks. However, this conclusion should be qualified. It is not clear that official peace talks between the NTC and the Gaddafi regime were ever a feasible way to end the war—for reasons other than the ICC intervention.

The Chapter ends with an analysis of whether any of the actors that intimated, at any point, an interest in negotiating a settlement between the regime and the opposition forces could have successfully done so. Five actors are considered here: the Libyan opposition; Muammar Gaddafi himself; Saif al-Islam Gaddafi; the African Union; and the intervening NATO forces. It is concluded that the necessary commitment and compromises required to get to the negotiating table never existed amongst the various actors participating in the conflict. Ultimate responsibility for any failed peace process thus cannot be laid at the feet of the ICC.

Chapter 7 turns to an empirical examination of the effects of the ICC on post-Gaddafi Libya and the country’s approach to post-conflict justice. It is argued that (p.17) the ICC’s ability to positively affect peace and justice in post-conflict Libya has been limited. The first section of the chapter examines the debate regarding who should try the two surviving ICC indictees—Saif al-Islam Gaddafi and Abdullah al-Senussi. It delves into where they should be tried, focusing on the OTP’s support of Tripoli’s intentions to prosecute Saif and Senussi in Libya by Libyans and the failure of the Prosecutor to explore options beyond a trial in Libya by Libyans or in The Hague by ICC judges. The second section assesses non-investigated international crimes committed by Libya’s opposition forces, focusing on the cleansing of Tawergha and the killing of Gaddafi, both alleged international crimes. The final section examines two transitional justice mechanisms implemented by Libya: a blanket amnesty for revolutionaries and the Political Isolation Law. Each of these sections exposes the limitations of the ICC to positively affect post-conflict justice and peace in Libya.

Chapter 8 seeks to answer the question: why does the ICC have the effects that it does on peace, justice, and conflict processes? This penultimate chapter outlines the relationship between the ways in which the ICC is requested to intervene in ongoing conflicts, the subsequent decision-making of the OTP in deciding which parties to target for prosecution, and the consequent effects of the ICC on peace, conflict, and justice processes. The central argument here is that the ICC is guided by a negotiation between its own institutional interests and the interests of the political actors upon which the Court depends. This negotiation of interests has led the OTP to investigate and prosecute parties to the conflicts in which it intervenes selectively, generally only focusing on one side of the war whilst neglecting the other. Ultimately, the selective prosecution of one side of a conflict determined how the Court affects peace, justice, and conflict processes in Libya, northern Uganda—and beyond.

The chapter proceeds in three sections. In section one, it is demonstrated that self-referrals lead the Court to prosecute non-state actors (i.e. enemies of the self-referring government) whilst Security Council referrals lead the OTP to primarily target government officials. In the second section, the ICC’s decision-making is analysed in order to show that the OTP selects who to target as a result of a negotiation between the Court’s institutional interests and the interests of the political actors upon which its effectiveness and relevance depend. Three institutional interests are outlined: cooperation to build cases; cooperation leading to the enforcement of arrest warrants; and recognition of the ICC as a relevant and effective institution in international politics. In the final section, the two cases at the heart of this book, northern Uganda and Libya, are revisited. It is shown that the processes of decision-making, negotiation of interests, and selectivity were instrumental in determining the ICC’s effects on peace, justice, and conflict processes in both cases.

The final chapter revisits the overall aims of the research conducted for this book. It offers concluding reflections, both specific to the cases of northern Uganda and Libya as well as generally on the effects of the ICC on ongoing and active conflicts. Whilst reflecting on what can be learned from the two cases, it is observed that ICC interventions amplify the importance of some issues and (p.18) dynamics in a peace process. It is also reiterates that decision-making within the ICC and, in particular, the OTP with regard to which side of a conflict is targeted for prosecution has a significant determinant impact on the ICC’s effects on peace, justice, and conflict processes. The heart of the conclusion reflects on the ICC’s effects on each of the issues and dynamics that constitute the book’s analytical framework, identifying where further research is needed as well as providing some suggestions for practitioners engaged in the projects of international criminal justice, and conflict resolution.

V. Conclusion—Overall Contributions

This book makes three overall contributions. First, through the development of a novel analytical framework, the book establishes a more nuanced and rigorous way of studying, researching, and critically assessing the effects of the ICC on peace, conflict, and justice processes. Importantly, the framework is not intended to be rigid or unchangeable. Rather, it is hoped that it can be continuously developed, improved, adapted, and applied to new cases.

Second, the book sheds new light onto the empirical effects of the ICC’s interventions in both northern Uganda and Libya. Given the paucity of literature on the subject in the case of Libya, this is easier to achieve in the latter case than the former. As shown in Chapters 4 and 5, the ‘peace versus justice’ debate in northern Uganda has received significant scholarly attention. With regard to northern Uganda, the book attempts to bring together a vast amount of literature and primary research in order to provide a detailed account of the effects of the ICC’s intervention on the Juba peace process and its aftermath. In a number of instances, the book confirms arguments made by scholars, but does so through the novelty and nuance of the analytical framework, demonstrating the utility of the framework not only in dispelling arguments but also verifying them. In contrast, there are only a handful of analyses which deal with the ICC’s intervention into Libya and, as noted in Chapter 6, many treatments of the Libyan Revolution and civil war ignore the Court’s intervention altogether. Again, the analytical framework is deployed to structure the analysis of primary and secondary data in order to generate novel insights and conclusions.

Third, as illustrated in Chapter 8, analyses of the specific decision-making and discretion of actors at the Court is often neglected. Through primary interview-based research, the research conducted for this book sheds light on how decision-making at the ICC, specifically in the Office of the Prosecutor, shapes the Court’s effects on peace, justice, and conflict processes.

Notes:

(1) See Statute (1993).

(2) For analyses of the relationship between the US and the ICC see Schabas (2004); Ralph (2007); Feinstein and Lindberg (2009).

(3) For more on the ICC-Security Council relationship, see Kaye (2013).

(4) It is arguable that the Prosecutor does not have much of a choice in accepting UNSC referrals. If the OTP were to reject such a referral (claiming, e.g. that accepting a referral was not in the ‘interests of justice’), the Office would be required to justify its decision to the ICC’s Pre-Trial Chamber. It is not a given that the Pre-Trial Chamber would accept the OTP’s decision. If the Pre-Trial Chamber was not convinced, it could request that the OTP ‘reconsider’ its decision. This may have the effect of the OTP privileging UNSC referrals. This is detailed in Art. 53 of the Rome Statute.

(5) A warrant of arrest was initially issued in 2008 after Bashir was charged with war crimes and crimes against humanity. At the time, the judges deemed the evidence insufficient to also include a charge of genocide. However, in 2010, the ICC issued an additional arrest warrant, this time charging Bashir with genocide.

(6) No serious discussions were had on the location of an official negotiations. As noted in Chapter 6, it is thus not possible to measure how the ICC’s intervention affected negotiation location.