Is the ICC truly a court of last resort? Can peace and justice be simultaneously achieved at the ICC?
From the Editor
The first of the two conference panels on the ICC dealt with whether the ICC in practice (and as intended by the drafters of the Rome Statute) operates as a court of last resort - a court which complements rather than usurps the primary responsibility of States to prosecute international crimes.
John Dugard (Professor of Public International Law, Leiden University) had identified bases on which one could conclude that the Court is not operating in accordance with the complementarity principle. First, the existence of the ICC, he pointed out, had not had the effect envisaged by the drafters. Instead of being an incentive for States to prosecute cases or risk having them taken over by the ICC, the tendency was that states were unwilling or unable to prosecute. The result was that the ICC has been left with no choice but to prosecute cases that should be handled by domestic courts. Second, the Court in a bid to justify its existence - inorder to “survive” - had assumed jurisdiction over situations which may not have been envisaged by the drafters. An example of this, he noted, was the recent electoral violence in Kenya, which the Court had assumed jurisdiction over by giving an expansive interpretation to the term “crimes against humanity” in the ICC Statute.
Dugard was also of the view that the Court had jettisoned the principle of complementarily by giving a flexible interpretation to Art 17 of the ICC Statute, so as to cover cases where a State had itself announced its unwillingness to prosecute. He wondered in this connection whether the drafters of the Statute had envisaged the Court’s jurisdiction being extended to cover cases of referral by a State of its opposition leaders to the Court (See report on the ICC's arrest of a Congolese opposition leader).
The idea that the generality of States were unwilling and unable to prosecute was, however, contested by several members of the audience. One conference participant had pointed out that compared to 1945, the willingness of States to prosecute was high. Another suggested that judgment was being passed too soon on the Court considering the relatively short period it has been actively seized of cases, and the ongoing efforts in national jurisdictions to establish a proper framework for prosecuting international crimes. Pointing to the case of Uganda, which is in the process of setting up a war crimes chamber, she noted that setting up the appropriate structures at the domestic level may take time. In her view, this factor made it perhaps premature to conclude now that States are unwilling to prosecute.
A related issue discussed at the session was whether the ICC prosecutor’s decisions on what cases to prosecute were political. As William Schabas (Director, Irish Centre for Human Rights, National University of Ireland) had pointed out, the fact that complementarity was a legal rule – was specifically provided for in the ICC Statute - was supposed to have the effect of making the prosecutor’s decision on whether to prosecute a legal determination (based on objective facts), rather than a political/subjective decision. In that respect, the ICC was to be contrasted with the Nuremberg tribunal, the Tokyo tribunal and the ad hoc tribunals for Yugoslavia and Rwanda, where the prosecutor had unfettered discretion as to what to prosecute. It was to be seen as representing a new vision of international justice in which political considerations had been eliminated from the process of selecting situations meriting prosecution.
Many, however, agreed with Mirjam Blaak's (Deputy Head of Mission, Uganda Embassy in Brussels) view that the idea of a non-political court was utopia. Reference was made in this connection to the Court’s apparent lack of enthusiasm for trying non-African forces and its tendency to focus on “soft target States (African States). One example given of a political decision not to prosecute – a complaint concerning British soldiers in Iraq – was however countered by a participant who argued that the ICC may have declined prosecution because the UK had court marshalled the soldiers in question. This, he argued was a sign that the Court was respecting the principle of complementarity.
There was also some discussion of differences that existed between ICC and national ideas or standards on prosecution, some of which were relevant to the determination of whether a State is unwilling or unable to prosecute. For example, Mirjam Blaak noted that Uganda had no provisions on victim participation. This raised the question whether States had to mimic the ICC's procedures. She considered this a question that had to be decided at the Assembly of State Parties to the ICC Statute. Dr. Luca Biong (Minister of Cabinet Affairs, Government of Sudan) on the other hand drew attention to some tension that existed between the ICC's emphasis on prosecution and the focus in the traditional African system on peace before justice. The perception of peace as the core issue in international justice and the question of double standards in selection of cases for prosecution were, he noted, two issues which had been raised by African States concerning the operation of the ICC.
The conference organisers had taken the innovative approach of putting the panel question to vote among the participants after arguments for and against the proposition had been discussed at the session. The results: 70 (for) : 60 (against)
PEACE VS. JUSTICE : FRIENDS OR FOES?
Though the participants in this debate did not state this expressly, it was apparent from their statements that the debate was being conducted on two levels: first, a theoretical level where the question was whether peace and criminal justice should be pursued simultaneously; and second, a “practical” level where the questions were: does criminal justice as a matter of empirical fact endanger or promote peace processes? If there is evidence that criminal justice might endanger peace, should peace take priority over justice?
It was also apparent from the discussions that the term peace was being used by the discussants in two senses: first, as referring to an end to armed hostilities (see 'barrel of the gun' reference below), and second, as referring to peace in the broader sense of reconciliation.
On the theoretical level, there seemed to be a general agreement among the discussants that justice and peace should be pursued simultaneously; that the one should not be sacrificed for the other. In this connection, Fatou Bensouda (Deputy Prosecutor at the ICC) had stated that a choice between peace and justice was a false choice. This was because both were not alternative ways of achieving a goal. but rather elements of a comprehensive and integrated solution to a problem. Where the real disagreements appeared at the panel was where the questions were whether justice as a matter of empirical fact endangers or promotes peace, and whether peace should take priority over criminal justice if there is evidence that justice might endanger a peace process (the practical questions so to speak).
The rather differing views of the discussants on the first of these two questions suggests that whether justice in fact endangers peace (whether justice and peace can be pursued simultaneously) is not a question to be answered in abstracto - that the question may best be answered in the light of the particular circumstances of the case concerned. For example, Sarah Nouwen (Cambridge University, United Kingdom) felt there was rather weak empirical evidence that ICC trials promoted peace, and considerable evidence to the contrary (one example being the refusal of an indicted rebel leader to participate in peace talks for fear of being arrested at the talks and brought before the ICC). She had also noted that criminal trials tended to impede reconciliation and peace as they entrench the parties in their respective positions as victim accuser and accused. While another participant who had participated in peace talks on behalf of his government pointed out that fear of indictment by the ICC had led a certain rebel leader to agree to peace talks.
Concerning the second practical question, Fatou Bensouda seemed to disagree with the idea that peace could be achieved without justice. She had cited with approval the view of the UN Secretary General Ban Ki-Moon that a situation in which victims are asked to give up criminal justice in exchange for peace amounted to peace being secured through the barrel of the gun - to victims being asked to settle for “peace” that infringed on their dignity. The point here would seem to be that such peace is not true peace. Sarah Nouwen, on the other hand, had pointed to the case of South Africa where Mandela’s decision to follow the path of reconciliation instead of criminal justice for apartheid crimes has been credited for post-apartheid peace in that country. She found it contradictory that what some may insist should not be done is exactly what Mandela has been praised by the international community for doing : trading justice for peace.
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