Why the ICC Should Operate within Peace Processes
Rodman, Kenneth A., Ethics & International Affairs
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." (1) 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." (2) 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.
Today, Moreno-Ocampo denies that he is party to any peace negotiations. While he promises to work constructively with other actors involved in conflict resolution, he construes his legal mandate as independent of all political considerations. (3) This means that the ICC is part of a transitional process only in the sense that prosecution of those most responsible for criminal violence is necessary for a lasting peace, and this is a binding legal obligation with which other actors must comply, not something that can be adjusted to their needs.
This vision of "law above politics" is based on the cosmopolitan values that animate the anti-impunity movement--the coalition of nongovernmental organizations and international lawyers that was instrumental in the court's creation. (4) It assumes that there are certain wartime atrocities or human rights abuses that are so corrosive of the common bonds that unite all peoples that such practices should be removed from the realm of normal politics and treated as international crimes. (5) As a result, for the ICC and its state parties, ensuring prosecution of those most responsible for these crimes is a duty that should not be compromised by political factors, including peace processes. This latter position is informed by what Judith Shklar calls "legalism," which envisions a just world order based on the globalization of law and which disparages politics as a defect to be eradicated if that ideal is to be realized. (6) Hence, one of the achievements of the anti- impunity movement was the establishment of an independent prosecutor who could investigate situations on his or her own initiative rather than being dependent on the directives of states. As Moreno-Ocampo noted, this independence "ensures the requirement of justice will prevail over any political decision." (7)
This essay makes a consequentialist case against the strict separation of law from politics, particularly in situations of ongoing political violence. In part, this is because the ICC lacks enforcement capabilities comparable to those in domestic legal systems. More important, it is because resolving armed conflicts or ameliorating their consequences relies primarily on the willingness of political actors to wield nonjudicial instruments--force, sanctions, diplomacy, peacekeeping, humanitarian relief--that are employed independently of the court. While the use of force or sanctions to defeat or isolate the perpetrators can empower prosecutions, the other instruments make the process of international criminal justice more complicated because they are premised on the cooperation of the very individuals likely to be subject to criminal scrutiny. Since that cooperation has an impact on actual or potential victims of atrocity crimes--what Ben Schiff's contribution to this roundtable identifies as the central criterion for judging the ethics of the ICC--the court should pursue accountability in ways that do not undermine mediation efforts or humanitarian access. …