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- roccosan: Premise The uniqueness among the Judicial Systems of ICC is a challenge for the application of statistics to measurement about its activities. This is for two reasons: the absence of a reasonable term of comparison; the self-referentiality of the system of measurement. Both the features provide the occasion for a reflection about the meaning of measurement of an object that is strictly qualitative and hold an ontology bereft of... (more)
- chrisjlin: Prosecutorial Discretion in Investigations: A Balance Between Politicization and Independence Abstract I examine the possibility of enforcing a balance between discretion and independence, seeing as how the International Criminal Court (“ICC”) Prosecutor’s decision to investigate a specific country, individual or group is necessarily political, given the ICC’s method of functioning. Despite the occurrence of... (more)
- cgsanchez: The Al Mahdi Case Study: Establishing a Media Bias Baseline to Support Future Research Regarding how ICC’s Operations Affects Public Perception International media reaction to the case The Prosecution v. Ahmad Al Faqi Al Mahdi heard in the International Criminal Court reveals that the case’s timeline, a country’s governance structure, and whether or not the country is an ICC... (more)
- Hanni Maoz: Evaluation of the Court Performance: A Critical View of the International Criminal Court Indicators for Security Introduction In November 2015, the International Criminal Court (the ICC or the Court) released Report of the Court on the development of performance indicators for the International Criminal Court.1 This First Report contained qualitative and quantitative indicators that were supposed to allow... (more)
- Sebastian Barrios... Evaluating the performance of the ICC: the value of and challenges associated with measuring the expeditiousness of ICC’s proceedings I. Introduction One of the most persistent and often repeated criticisms of all international criminal tribunals has been that they cost too much money and take too long.1 After having been in operation for more than ten years, the International Criminal Court... (more)
- kbanafshe: Evaluating the Performance of the Court: To What Extent have the Actions of the ICC Transformed the Politics and Fostered Peace Within Central and Eastern Africa? The International Criminal Court (“ICC” or “the Court”) was established in 1998 to “exercise its jurisdiction over the most serious crimes of international concern.”1 The main mandate of the court is to bring wrongdoers to justice, however... (more)
- Mehrunisa Ranjh: Measuring Victim Access to the International Criminal Court: Peace as the Ultimate Goal of International Justice Introduction The creation of the International Criminal Court (“ICC”) was an attempt to traverse previously uncharted territory by setting up a permanent, truly international court that would remain impartial, expeditious, and transparent in the face of huge and often conflicting external pressures. The court was envisioned... (more)
- emrenslo: The Performance Indicator “Expeditiousness of Proceedings” Will Cause Unintended Negative Consequences Using “Expeditiousness of Proceedings” as a performance indicator, as currently envisioned by the ICC, has unintended negative consequences for the prosecutorial, judicial, and management aspects of the Court. I. Introduction The ICC released a... (more)
- pgsojo: Measuring Performance on Arrests and Visualizing a More Effective Way in Procuring Them Performance indicators to evaluate the success or failure of the International Criminal Court (ICC) in terms of its mandate of arresting suspects. It is clear how the world has always been in desperate need of a worldwide ruling court, where criminals of great atrocities would face justice internationally known and accepted. The ICC was... (more)
- aaacosta09: Measuring Performance: A Case Study of Positive Complementarity Catalyzed During the Preliminary Examination Stage in Colombia An effective way to evaluate the performance of the ICC is to measure the positive complementarity catalyzed by the Court during the preliminary examination stage in Colombia. Introduction The International Criminal Court (“ICC” or “the Court”) was... (more)
Comment on the Performance Question: “The ICC has established four key goals regarding, broadly, its proceedings, leadership, witness security, and victim access. What are the appropriate ways to measure the ICC’s progress towards those stated goals? How can the performance of the ICC as a whole be properly assessed?”
Evaluating the Performance of the Court: To What Extent have the Actions of the ICC Transformed the Politics and Fostered Peace Within Central and Eastern Africa?
The International Criminal Court (“ICC” or “the Court”) was established in 1998 to “exercise its jurisdiction over the most serious crimes of international concern.”1 The main mandate of the court is to bring wrongdoers to justice, however over the years it has emerged as a key part of the international mechanism combatting impunity in Africa. This discussion seeks to evaluate the performance of the court in relation to whether it fostered peace and reconciliation within the region, and secondly, whether it transformed the political landscape in the countries in which it operated. This comment will analyse the activity of the court through a series of case studies. Each case study pertains to the specific performance of the ICC including any contributory factors, which built on, or hindered the peace process. The ICC’s activity has quintessentially presided within the African region, for this reason the selection of case studies came down to the cooperation of local government and support from the wider international community in achieving peace. Taking this into consideration, the chosen studies are: Uganda, the Central African Republic (CAR), The Democratic Republic of Congo (DRC), and Sudan. It is no secret that relations between the ICC and the African Union have become increasingly taut over the years; this is due to a multitude of reasons that will be discussed throughout this comment. There will be a wider discussion as to the crucial interplay of peace and justice, however the main focus will predominantly revolve around the courts performance and its ability to foster peace. The notion of peace and political stability vary remarkably around the world, which is why for the purpose of clarity, this argument will adopt the simplistic meaning of the word by tailoring it to each case study.
I. Case Study: Uganda
Uganda is one of five African states baring legislation that incorporates “the provisions of the court’s Rome Statute into domestic law.”2 In an unprecedented turn of events and after almost two decades of conflict between Ugandan government forces and the Lord’s Resistance Army (LRA), President Yoweri Museveni referred numerous counts of suffering and human rights violations to the ICC. This was the first time a head of state had referred a conflict to the court, which needless to say, produced a wave of political and international consequences. The President’s request for intervention was met with the untimely negotiations (Juba talks) taking place between the government and the LRA, which seemingly complicated the peace process even more. As always, the court was forced to confront the challenges “inherent in pursuing peace and justice simultaneously.”3 This case study will demonstrate that there is less of a trade-off between the two, and instead, a complementary relationship incited by the court. For instance, Otim and Wierda4 suggest that in aiming to end Uganda’s 20-year conflict, the Juba talks focused primarily on “negotiations over reconciliation and accountability.”5 This meant that it was important for the agreement to not only be suitable for both the rebels and the government but also be consistent with the provisions of the Rome Statute. As proponents of the court Otim and Wierda argue that the court broke new ground in “bridging local pressures and global legal obligations”6 and was not a hurdle to peace, but instead a catalyst to the rigorous treatment of accountability issues witnessed at Juba. Conversely some critics have asserted that the ICC’s intervention undermined the indigenous justice initiatives formerly used to integrate rebels into society.7
The courts performance, and impact in Uganda can more thoroughly be evaluated in 2005, when it issued arrest warrants for Joseph Kony and the rest of the LRA leadership. The warrants resulted in the Juba peace talks coming to a sudden halt amid criticism that the warrants were a “hurdle to the resolution of a devastating conflict.”8 With peace and political stability being at the forefront of this comment’s analysis, it is important to note that fierce debate surrounded the court, and it’s impact on addressing impunity for crimes in the region. The Juba peace talks were a monumental step in ending a conflict that had ravaged Uganda for over two decades. This meant that any actions the court took came at a cost for the government, the LRA and the ICC’s own success.
Academics have postulated that Uganda should have been an easy first case for the ICC; this is due to the nature of LRA’s movement and the government steadfast cooperation. Nevertheless, the courts intervention created a wave of controversy, although the court had established a close working relationship with the government, it was accused of undermining the wider perceptions of impartiality. Otim and Wierda have argued that the court represented a “western form of retributive justice”9 which was deemed culturally inappropriate to the Ugandans. This was due to their preference of traditional approaches of forgiveness and reconciliation, as opposed to a formal trial. Several delegations in higher Ugandan communities prevailed to the ICC to retract and reconsider its arrest warrants, as they believed amnesty took precedent and it was frankly unclear as to how far down the LRA’s chain of command the court was even willing to go.10
One thing that is certainly clear from this situation is that the arrest warrants in 2005 played a prominent role in bringing all parties to the negotiating table. At a time of perpetual turmoil, the ICC was able to bring increased political stability and hopes of peace for the people in Northern Uganda. This was evidenced by the formal agreement signed in 2007 known as Agenda Item 3.11 This agreement set the premise for accountability and reconciliation mechanisms and outlined that “formal criminal and civil justice measures will be applied to any individual who is alleged to have committed serious crimes or human rights violations in the course of the conflict.”12 Bell correctly argues that the mere threat of the ICC “can be used to toughen up the restorative justice mechanism at the domestic level”13—an interpretation that can very clearly be applied to the situation in Uganda. It was clear at times that the court’s presence was perhaps of detriment to the political landscape. This was due to the prominent traditional justice debate, and again in 2006, when ICC Prosecutor Luis Moreno Ocampo was described as a “spoiler”14 to the peace process. This came after an internal policy statement released by the ICC, which claimed that the interests of justice were not synonymous to that of peace.
Although the desirability of the ICC is sometimes questioned there is no doubt that as long as the intervention remains impartial the court is likely to have a potentially beneficial impact. The five arrest warrants against the LRA denounced atrocities to a certain extent, however Louise Parrot argues that in order to have an even greater impact “adequate safeguards should be put in place.”15 This would guarantee that proper checks and balances are in place in order to continue investigations and prosecutions, especially in highly politicized areas such as Uganda.16 The courts main peril to success in Uganda was arguably it’s sole focus on the LRA, and it’s neglect for the government forces. Prosecutor Ocampo justified this selection on the basis of the gravity and long-lasting nature of their crimes.17 This caused a degree of political turmoil in the country with rebel leaders refusing to comply adequately in the peace negotiations, and as one politician put it, “the ICC has become Museveni’s political tool.”18 This case clearly demonstrated that justice in Uganda came at a price, or rather, the ICC’s way of justice was simply unacceptable to most. Parrot concludes that the court is facing trying times and it should therefore “do all that it can to ensure that the pursuit of justice does not come at the price of peace.”19
Although the success of Juba is still fairly ambiguous, it is nonetheless acceptable to conclude that the Court played a significant role in raising discussions on accountability, which ultimately brought the two parties together. That being said, it is premature to assume that the court is solely responsible for this feat, as other influencing factors such as the reconciliation agreement and later the death of LRA deputy Vincent Otti were nonetheless fundamental to Juba’s success.
II. Case Study: The Central African Republic (CAR)
Coordinator of the NGO Coalition for the ICC suggested that the court “will save millions of humans from suffering unspeakably horrible and inhumane death in the coming decades.”20 With such an exceptionally high standard it is perhaps foreseeable that the court would not always live up to it’s expectation, and on occasion, fall short. Nonetheless, the court is an unprecedented institution, which Glasius describes as having had “a social and political impact on the situations on which it focuses.”21 This case study will focus on the accuracy of this statement in regards to the ICC’s success in fostering peace and stability across the Central African Republic (CAR).
For decades governance within the CAR has been blighted with turmoil and personal power struggles at the very top. However in 2005 the government referred the situation to the ICC22 with hopes of ending the conflict and bringing peace to the victims—formal investigations took place approximately two years later in 2007. Between 2002 and 2003 rebel forces led by François Bozizé (the countries former army chief) precipitated a coup against then President, Ange-Félix Patassé. The struggle was characterized by the intimidation of civilians, war crimes and an abundant array of crimes against humanity. A fact-finding mission23 in the region reported Patassé carried out mass rape, whilst the rebels conducted mass killings and other grave forms of maltreatment. In a letter to the UN-Secretary General,24 the government insisted that the courts intervention was not needed given that the domestic justice system was capable of prosecuting for international crimes. Some scholars have argued that although the ICC’s involvement may have triggered the domestic process to address impunity, the truth commissions set up as amnesty, were instead a ploy to “avoid confronting criminal liability.”25 If this is in fact accurate, then it is clear the courts presence was merely seen as a hurdle to overcome, rather than a means to justice.
Criticism of the court began in 2005 when the prosecutor failed to act after a referral by the CAR government. This came just after the countries own Supreme Court concluded it was unable to conduct appropriate measures to apprehend and try the perpetrators because they resided outside of the country.26 However, investigations did begin in 2007 with a special emphasis on the sexual crimes that had taken place within the power struggle five years earlier. That being said, the delay between the events of 2002–2003, and the investigation, undeniably hindered the quality of evidence and demoralized the victims who relied patiently on the success of the court. The situation in the CAR was certainly a lot simpler for the court. This was perhaps due to the fact that the investigations weren’t met with nearly the same level of hostility experienced in Uganda.
The president of the association of evangelical churches mentioned in a statement that the court’s presence will be integrated into the country’s political life and that only the intellectuals will know of its importance.27 Most academics will argue this to be true, adding substance, he later argued that “physical and material security are the main priorities for Central Africans,”28 potentially leading way to a more peaceful nation. That being said, the director of Radio Centrafrique opposed this notion in stating that the court is unlikely to change anything29 with other critics voicing concerns that the trial is too slow to give victims any degree of satisfaction.30
By 2008 the court had successfully arrested Jean-Pierre Bemba Gombo, although his ties were mainly to the Democratic Republic of Congo he was one of the main leaders assisting President Patassé to carry out war crimes. Glasius argues that Bemba’s arrest was “cast in a different light.”31 Perhaps due to the fact that the new Central African president and former rebel leader, Bozizé had realized that the ICC could now also indict him and other prominent figures within his government. Arguably any further prosecutions at the time would have jeopardized the peace-negotiations that were underway, which led to criticisms that the court was of “one-sided justice.”32 Article 1 of the Rome Statute emphasizes that the court shall be “complementary to national criminal jurisdictions”33 thus only stepping in when needed. For this reason it is reasonable to understand the ICC cannot be expected to handle all lower level cases and that the bulk of impunity should perhaps be handled by the domestic courts.34 In this regard, the performance of the court should therefore not be condemned, as it surpasses the scope of responsibility set forth by the Rome Statute. Sara Darehshori reasons that the ICC placed pressure on national authorities to at least take nominal steps toward enforcing international humanitarian law.35
To conclude this case study it is imperative to look at whether the court did in fact foster peace and stabilize the political landscape in the CAR today. The country’s current interim President, Catherine Samba-Panza, thanked the world for its intervention and peacekeeping operations, and “appealed to the sanctions committee” by asking for looser sanctions in order to put the country back together.36 In her time in office Samba-Panza pledged to bring stability to the war-torn country, and in doing so referred to the court for all crimes committed during the upheaval. The ICC’s current chief prosecutor, Bensouda stated that “the list of atrocities is endless” and thus cannot be ignored. This goes to show that the Central Africans are still working towards becoming a more peaceful nation by bringing those responsible for gravest of international crimes to justice. With Samba-Panza welcoming the participation of the international justice system one more time, it is likely she has made the decision that the ICC’s investigation “will not harm the country’s eventual road to peace.”37 Her request for soldiers from the CAR to also play a role in stabilizing the country goes to show that the government at the time understood the importance of local efforts, as without it, there would be no lasting peace.38 While the CAR has not yielded any domestic prosecutions, the ICC has arguably raised awareness for the rule of law, which Darehshori postulates, is “the first step toward preventing future crimes.”39
III. Case Study: The Democratic Republic of Congo (DRC)
The courts impact in the Democratic Republic of Congo (DRC) will be assessed on the basis that it was one of the first countries where the ICC opened a formal investigation. This was a result of self-referral by the Congolese President, Joseph Kabila, who referred the situation to the court’s Chief Prosecutor in April 2004. The conflict in the DRC emerged with the “implosion of central government authority under decades of Mobutu’s corrupt rule and similarly autocratic and ineffective governments of his successors, Presidents Laurent and Joseph Kabila.”40 Although this crisis engulfed the nation and spanned two wars, the turning point came in 2003 when Prosecutor Ocampo described the conflict in the Congo as “the most urgent situation to be followed.”41 Numerous challenges arose in the early days of the investigation as newly formed armed groups were threatening the very peace process upon which the court had relied.42 The court focused its attention on the Ituri province as it regarded the atrocities committed there to be of the gravest nature. By focusing on Ituri, the court is addressing a part of the Congolese war that is still very much thriving with high-ranking members of the government involved to some capacity.43 For this reason, this case study will focus on the performance of the court in this specific region and analyse whether it was successful in fostering peace and stability in Ituri and elsewhere in the Congo.
Arguably Kabila was initially reluctant to refer the situation to the court due to concerns that it would affect the “fragile peace process,”44 which had become such a vital power sharing agreement amongst the rebels.45 Nonetheless, this was a reasonably valid concern with potentially dyer consequences for both the country and the court. Despite this apprehension, a researcher from Human Rights Watch suggested that “the ICC could turn out to be [an] extremely profitable currency” for Kabila as it can be used as a weapon against his adversaries.46 Clearly the courts involvement in the DRC, at this point, had more political implications than legal. Jacqueline Geis has argued that the ICC “was also under serious pressure from foreign donors to avoid creating political instability in the lead-up to the first post-independence elections.”47
The Court respectively issued arrest warrants for Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, who at the time of his indictment was an active-duty colonel in the national army. Arguably these indictments, especially for such high calibre individuals “sent a strong deterrent signal to the armed groups.”48 Clark postulates that the courts choice of these Ituri leaders raised questions about the validity of its politically cautioned approach.49 Arguably in doing so the court focused on its legal mandate, rather than the potential political effect it may have on the conflict. Compared to for instance, Uganda, the court was less effective in restoring justice in the DRC perhaps due to the context of the conflict as most Congolese criminals were not covered by the ICC’s jurisdiction.50 However, for individuals such as Thomas Lubanga, who was in its jurisdiction, the court was successful in finding him guilty of enlisting child soldiers, and ultimately sentenced him to 14 years imprisonment.51 Nevertheless this arrest did not stop the ongoing conflict, and crimes to this day, continue to be committed.
Had the court also demonstrated its ability to be more effective in the domestic criminal proceedings taking place, as much as it had for those in The Hague, it could perhaps have been more successful in fostering peace throughout the Congo. This would have allowed for it to no longer be seen as a vehicle to foreign interference, but instead, a vital institution for those who were denied justice by their own government. Kabala wa Kabala argues that “the configurations of the ICC mandate can set important international precedents in terms of fair and impartial trials”52 which in the long-term, can reverberate in domestic proceedings. Thus allowing the Court to “set high standards in the collective memory of Africans.”53 It would be unfair to argue that the court did not transform the political landscape in the Congo to a certain extent; the successful convictions of Lubanga and Katanga54 paved the way for a more united nation and a decrease in hostilities. Albeit the situation in the DRC is far from perfect, the court did play a vital role in the affected communities and therefore its performance in this regard must be commended. Whichever direction the ICC takes in the Congo now depends on its ability to rise from criticism, and balance expectations and reality in order to sustain peace and political tensions.
In order to achieve sustainable peace and rebuild a divided nation, it is crucial for victims to speak out, and for the affected areas to be vocal about the devastation they faced. This argument will focus on the importance of transitional justice in the DRC; arguably, it is one of the only ways the court can help restore peace. Borello concurs that this approach establishes trust between the citizens and the state.55 De Greiff agrees in that transitional justice pursues the goal of recognizing victims for what they truly are, bearers of rights.56 The guiding question here remains; can the court adopt such transitional strategies in its intervention in order to sustain peace in the long term?
Academics have criticized the courts performance in the Congo contending that it was “fundamentally motivated by self-interested pragmatic concerns.”57 Perhaps by diverting it’s eye from sitting members of the government, who themselves, were also implicated in carrying out grave and inhumane crimes—the court overlooked the role of domestic jurisdictions to address the atrocities concerned. Furthermore Clark reasons that court needs more support before it selects it’s cases so pragmatically, otherwise it will never be perceived as a crucial global actor in the fight against impunity and conflict.58 It is clear that the court faced unavoidable challenges in delivering international peace and justice to the Congolese people. The courts performance especially in regard to it’s chosen prosecutions drew too much political contention and thus arguably failed in its aim to foster peace within the nation.
IV. Case Study: Sudan
The Courts activity in Sudan is arguably one of its more significant cases, because it risked unsettling the already unhinged balance of peace, security and justice within the nation. Unlike previous ICC interventions in Africa, the UN Security Council (UNSC) referred the situation in Sudan to the court under Resolution 1593.59 The referral was based on findings from the UN International Commission of Inquiry into Darfur in 2005, which found that crimes committed by the government amounted to “violations of international human rights and humanitarian law.”60 The inquiry also concluded that some of the crimes were “very likely to amount to war crimes…and crimes against humanity.”61 Following this investigation the court issued arrest warrants for Ali Kushayb and Ahmad Haroun; key leaders involved in the conflict. The Sudanese government was successful in arresting the former on war crimes and pledged to prosecute him domestically.62 However Sudan’s cooperation with the court came to a sudden halt in 2009, when they purported that the domestic judiciary was more than capable of prosecuting crimes committed in Darfur. To a certain extent the Sudanese government followed through with their word by creating a commission of inquiry to address impunity within the country. For instance, in 2005, the government announced the creation of a Special Criminal Court on Events in Darfur in addition to appointing a prosecutor general to re-examine crucial cases. A report in the “African Union Series” titled Peace, Justice and Reconciliation in Africa questioned the credibility of these national initiatives63 arguing that the judiciary is of “limited independence which has impeded the prosecution of those responsible for serious crimes.”64
The most controversial element of the Darfur case revolved around the indictment of Sudan’s President Omar al-Bashir. Respectively in 2008 and 2009, the Courts Chief Prosecutor and later Pre-Trial Chamber issued arrest warrants for the countries sitting head of state. Critics of the court have argued that this arrest warrant challenged the conflicting goals of peace and justice, questioning whether “justice should be pursued at all costs”65 in the region. Although taking action was both in the jurisdiction and mandate of the court, it nonetheless risked unsettling the fragility of peace and security within Sudan. For this reason, academics have argued that the court should have “delayed the arrest warrant until a later date” rather than further exacerbating the heightened level of insecurity in Darfur. One pitfall of the ICC is that its prospects of arresting and transferring wanted war criminals to The Hague is far-fetched, with al-Bashir being no different to the rest. This indictment sparked debate amongst scholars as to the importance of peace and justice working together. In 2005 the ICC declared that any hope for sustainable peace in Darfur requires justice, which in turn, urged the African Union (AU) to act against violations of human rights. This was a great step in the right direction as smaller panels were set up across the country, both by the UN and the AU in order to tackle violations that fell outside the jurisdiction of the court.
By 2008, the ICC had pursued its fourth case in Sudan, but had yet to “foster peace” or adequately bring the perpetuators to justice. A plethora of arguments exist regarding the courts ineffectiveness in this regard, however it is important to shed light on the considerable benefits the courts performance has provided. For instance, Payam Akhavan, a former legal advisor to the ICTY concurred that stigmatizing criminal conduct can ultimately lead to “post-conflict reconstruction” by placing an emphasis on the importance of international order.66 Akhavan follows up on this point by suggesting that the stigma created by the court can bring peace in three ways: firstly, it discourages victims from seeking vengeance, it reduces the culture of impunity and finally, it marginalizes the corrupt and criminal political leaders.67 However, if this is the criterion for peace, then the court has arguably failed in a number of its cases to this date.
Nicki Alam argues that it is perhaps somewhat premature to assess the courts ability to foster peace based on Akhavan’s “precursors.”68 However she suggests that the courts performance, thus far, is a significant indicator for any prospect of peace in Darfur. She reasons that the court has not yet reduced the culture of impunity, as it has not formally arrested any of the individuals indicted. She additionally promulgates that if the ICC were to act in conjunction with the UNSC it could combine its efforts and allow a UN peacekeeping force into the region.69 This interpretation concludes that justice for the crimes in Sudan and the successful arrest of al-Bashir and other militia leaders would undoubtedly set the stage for peace in Darfur. Conversely, Tranovich believes that is possible “the ICC investigation brought more violence to the conflict”70—Reeves corroborates this view by arguing that the courts intervention “made the regime more aggressive.”71 Perhaps building criminal cases in the midst of an on-going conflict further exacerbates the situation and as Tranovich contends:
Evaluating the courts performance based on whether it did or did not foster peace is certainly unnerving, fostering peace is not the main aim of this institution, nor was it ever intended to operate in isolation. The international community is beginning to get restless in regards to the Darfur conflict, however the court cannot fulfil its mandate entirely without potentially risking the lives of the victims. Coordinator for the Darfur Consortium postulated that the ICC has huge potential, however a group of lawyers cannot negotiate an extraordinarily complicated situation without further international support.73
The analysis of this comment has orbited around the notion of peace, whether the Court as a single body can foster peace and whether it ultimately catalyses the ability to serve justice where it need be. Okuk contents that patriotic Sudanese do not support any action they may lead to “undemocratic regime change” in their country74—this view makes it fervently clear that al-Bashir’s arrest would do more harm than good to the countries political stability and hope for peace. Okuk concludes his argument as a critic of the court by stating that “justice can wait because peace is a priority to it.”75 Perhaps for many Sudanese, this interpretation is apt and demonstrates the very need for peace over justice. If the courts intervention deterred grave and inhumane crimes even by a small margin, then that to some, is arguably more valuable then removing the head of state and creating more political turmoil in the long run. Ultimately the emergence of the court as the epitome of international legal order is strongly up for debate, however its performance in Sudan has been hindered by the non-compliance of state parties such as Chad, Kenya and other AU countries that had received al-Bashir. The peace versus justice debate has arguably been the most prominent within the Sudanese context and for that reason the courts performance is slightly stricter to evaluate. From the five cases in Sudan, all suspects remain at large; the court has been unsuccessful in formally trying any of these individuals and therefore has failed to foster peace and stability, especially in the Darfur region.
Discussion and Conclusion
In understanding the courts effect on peace within the region it is imperative to take into account the peace versus justice debate. Arguably this was one of the key factors influencing the courts performance within each of the four African states. For instance, the courts interference in Uganda posed a critical threat to the success of the peace negotiations, however this was not the case in the CAR. Perhaps due to the fluid nature of the hostilities, or rather that reconciliation was merely not a priority to the people of Central Africa. In an interview with Sayo Nzale, Glasius interestingly sheds light on the courts role in fostering peace:
Certainly in the context of the ICC this is not an unprecedented view, however Sayo’s account is no doubt interesting as it congregates the role of the prosecutor solely around the notion of peace. When evaluating the ICC’s performance it became strikingly clear that every activity of the court is a fundamental fragment needed to achieve peace. For example while the physical distance of The Hague and isolation of the victims is usually a moot point for critics, the long-winded process of finalizing a case is also a significant drawback to peace. As evidenced by the “glacial pace”77 at which the court preceded in the CAR, given that almost four years had elapsed between the commission of the crimes and the initial investigation. Can fostering peace within African nations be construed as merely raising awareness for perpetrated crimes within the region? If so, then it can be argued that the court did in fact “foster peace” as arrest warrants in Uganda and the DRC brought the government and concerned parties to the negotiating table. With small signs of deterrence, and an increased knowledge of the rule of law a significant fall in mass crime was witnessed in both Uganda and the CAR. Similarly in Sudan, the Inquiry Commissions, although unsuccessful, was perhaps a small stepping-stone on the road to eventual peace.
This comment has shown that there is no easy way to “foster peace” in any country, in particular one that is ravaged by war and conflict. Perhaps one reason the ICC failed in Uganda and Sudan is due to the fact that its prosecutions impeded on an already strenuous peace process. Parrott argues that for a state in transition “compromise is likely to be essential and the granting of amnesty may, in some situations, be indispensable”78 if peace is to be achieved. This notion of compromise goes against the very essence of the court and the mandate upon which it was built. Ending impunity in the region can’t be done overnight; however the court has arguably been a great canon of deterrence, particularly in the Ugandan context. The court possibly failed the most within Sudan, peace and security did not improve and all suspects remain at large. However as the case study demonstrated, peace may be a far-off concept until justice is aptly served, and because of this the court was doomed for failure before it began its inquiry. I would argue that the ICC had the most success in the Central African Republic, namely due to the transitional government that avidly aimed to restore peace and bring perpetrators of the gravest humanitarian crimes to justice. This example goes to show that government cooperation, similar to that in Uganda goes a long way in aiding the courts effectiveness. Finally the ICC’s performance in the DRC was restricted by the growing political contention following its investigation, however the successful prosecution of Lubanga and Katanga arguably went a log way in uniting the Congolese people and fostering peace. In conclusion, the court is facing trying times and the confidence of those who rely so profoundly on its abilities is slowly being thwarted. The pursuit of peace and justice certainly come at a price, however neither is inevitable and the court undoubtedly needs the support of international actors and local government if it is to ever successfully foster peace.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 1, available online. ↩
African Union Panel of the Wise, Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity 47 (International Peace Institute, Feb. 2013), [hereinafter Fight Against Impunity], available online. ↩
Nick Grono & Adam O’Brien, Justice in Conflict? The ICC and Peace Processes in Courting Conflict? Justice, Peace and the ICC in Africa 13 (Nicholas Waddell & Phil Clark eds., 2008) [hereinafter Courting Conflict?], available online. ↩
Michael Otim & Marieke Wierda, Justice at Juba: International Obligations and Local Demands in Northern Uganda, in Courting Conflict?, supra note 3, at 21–27. ↩
Nicholas Waddell & Phil Clark, Introduction, in Courting Conflict?, supra note 3, at 7. ↩
Fight Against Impunity, supra note 2, at 48. ↩
Otim & Wierda, supra note 4, at 21. ↩
Id. at 22. ↩
Lucy Hovil & Joanna R. Quinn, Peace First, Justice Later: Traditional Justice in Northern Uganda, The Refugee Law Project Working Paper No. 17 at 4 (Jul. 2005). ↩
Agreement on Accountability and Reconciliation Between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement, Jun. 29, 2007, UCDP, available online. ↩
Id. § 4.1. ↩
Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria 252 (OUP 2008). ↩
Otim & Wierda, supra note 4, at 23. ↩
Louise Parrott, The Role of the International Criminal Court in Uganda: Ensuring that the Pursuit of Justice does not come at the Price of Peace, 1 Austl. J. Peace Stud. 8, 28 (2006), available online. ↩
Luis Moreno-Ocampo, Speech at the London School of Economics: The Lord’s Resistance Army: War, Peace and Reconciliation (Mar. 3, 2007). ↩
Courting Conflict?, supra note 3, at 49.
(Interview by Phil Clark of un-named Ugandan Member of Parliament, Kampala, Mar. 2, 2006). ↩
Parrott, supra note 15, at 29. ↩
William R. Pace, Statement of World Federalist Movement on behalf of the Coalition for an International Criminal Court (Jul. 17, 1998). ↩
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Id. at 54. ↩
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Rome Statute, supra note 1, Art. 1. ↩
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Geis & Mundt, supra note 44, at 9. ↩
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Kushayb was neither tried domestically nor transferred to the ICC. ↩
Fight Against Impunity, supra note 2, at 55. ↩
Id. at 37. ↩
Id. at 56. ↩
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Glasius, supra note 21, at 59. ↩
Parrott, supra note 15, at 23 ↩