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Why the ICC Should Operate Within Peace Processes

Published online by Cambridge University Press:  10 April 2012

Kenneth A. Rodman
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Extract

Is it ethical for the prosecutor at the International Criminal Court (ICC) to consider political factors, such as peace processes, in selecting situations to investigate or cases to prosecute? During the early years of the court, a number of documents and statements from the Office of the Prosecutor (OTP) suggested that there were occasions when it was. Two OTP policy papers issued in 2003 recommended that the prosecutor assess “all circumstances prevailing in the country or region concerned, including the nature and stage of the conflict and any intervention by the international community,” and whether prosecution might “exacerbate or otherwise destabilize a conflict situation.” In the same spirit, the ICC's chief prosecutor, Luis Moreno-Ocampo, referred to his decision-making as a “dialogue between many actors” with a “strategic dimension . . . [that] involves all stakeholders.” This language suggested a process of consultation and coordination with local and international actors involved in conflict resolution to adapt international criminal justice to on-the-ground political realities.

Type
Roundtable: The Political Ethics of the International Criminal Court
Information
Ethics & International Affairs , Volume 26 , Issue 1 , Spring 2012 , pp. 59 - 71
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2012

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References

NOTES

1 International Criminal Court, Office of the Prosecutor (ICC-OTP), Draft Regulations of the Office of the Prosecutor, June 3, 2003, p. 47Google Scholar; and ICC-OTP, Paper on Some Policy Issues Before the Office of the Prosecutor, September 2003, p. 2Google Scholar.

2 ICC-OTP, “Informal Meeting of Legal Advisors of Ministries of Foreign Affairs,” New York, October 24, 2005, p. 9.

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8 ICC, Eleventh Diplomatic Briefing of the International Criminal Court, The Hague, October 10, 2007, p. 3Google Scholar.

9 Rastan, Rod, “The Responsibility to Enforce—Connecting Justice with Unity,” in Stahn, Carsten and Sluiter, Göran, eds., The Emerging Practice of the International Criminal Court (Leiden, The Netherlands: Brill, 2009), pp. 163–83Google Scholar.

10 Peskin, Victor, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation (Cambridge: Cambridge University Press, 2008), pp. 29–148CrossRefGoogle Scholar. On the role of these factors in the arrests of Karadžić and Mladić, see Judah, Tim, “Pride and Pragmatism,” Guardian, July 31, 2008Google Scholar; and Castle, Stephen, “Mladic Arrest Opens Door to Serbia's Long-Sought European Union Membership,” New York Times, May 26, 2011Google Scholar.

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27 Cited in Unger, Thomas and Wierda, Marieke, “Pursing Justice in Ongoing Conflict: A Discussion of Current Practice,” in Ambos, Kai et al. , eds., Building a Future on Peace and Justice: Studies in Transitional Justice, Peace and Development (Berlin: Springer-Verlag, 2009), p. 267Google Scholar.

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29 Allen, “Seven Questions.”

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34 Moreno-Ocampo, Luis, “Building a Future on Peace and Justice,” in Ambos, et al. , eds., Building a Future on Peace and Justice, p. 13Google Scholar.

35 Peter Eichstaedt, “ICC Chief Prosecutor Talks Tough,” Institute for War & Peace Reporting, May 7, 2008.

36 Rastan, “The Responsibility to Enforce,” p. 176.

37 Stedman, Stephen John, “Spoiler Problems in Peace Processes,” International Security 22, no. 2 (Fall 1997), p. 10CrossRefGoogle Scholar.

38 Eichstaedt, “ICC Chief Prosecutor Talks Tough.”

39 The case for a U.S. Special Forces intervention as an alternative to the UPDF was made by the executive director of Human Rights Watch, which is one of the strongest supporters of the ICC. See Roth, Kenneth, “Get Tough on Human Rights,” Foreign Policy, November 2010Google Scholar. Human Rights Watch officials have also made arguments in favor of military intervention in other situations under ICC scrutiny. See Dufka, Corinne, “The Case for Intervention in the Ivory Coast,” Foreign Policy, March 25, 2011Google Scholar; and comments of Tom Malinowski in Landler, Mark and Bilefsky, Dan, “Specter of Rebel Rout Helps Shift U.S. Policy on Libya,” New York Times, March 16, 2011Google Scholar.

40 International Crisis Group, “Northern Uganda: Seizing the Opportunity for Peace,” Africa Report No. 124, April 26, 2007, p. 2.

41 Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1977), p. 288Google Scholar.

42 Moreno-Ocampo, “The Role of the International Community,” p. 281.