Much early writing on the field of international criminal law focused on its growing body of jurisprudence and its institutional developments, yet less attention has been paid to the effects that international judicial interventions have had upon the communities and state structures where grave crimes have occurred (Introduction to âContested Justice: The Politics and Practice of International Criminal Court Interventionsâ)1
This book explores the impacts of the International Criminal Court (ICC or the âCourtâ) on peace processes in CĂ´te dâIvoire, Kenya and Uganda. It comparatively examines how prosecution of those who bear the greatest responsibility for crimes committed in these countries may have negatively or positively influenced the process of making peace after conflicts. It is concerned with how international accountability affects post-conflict countries, and on what the ICC brings to the table in a peace process. The central questions are: Does justice spur peace in post-conflict societies? Does justice complicate the peace process? How?
The intervention of the ICC in post-conflict countries is primarily aimed at holding those who played key roles in the conflicts accountable for their crimes. The process of investigating such crimes and prosecuting those who are deemed to have committed international crimes may have affects which could impact on the peace process in the affected countries, and even beyond the borders of such countries (Sikkink 2011). However, the impact of these interventions is not yet well defined or well known (Kersten 2014; Clark 2011). Clearly, the belief that international justice mechanisms contribute to peace processes, though not unfounded, is not fully established or well-settled (Schabas 2011; Nouwen 2012; Wegner 2015). It is still a moot point if and how international accountability contributes to peace (Clark 2011). Thus, this book will contribute to knowledge in this area by, among other things, developing a framework for determining how the ICC contributes to peace processes.
1.1 Rationale for the Study
The Nuremberg and Tokyo trials were defining moments in the history of international accountability (Schabas 2012). With these trials, the world took a firm stand that those who commit atrocities that threaten international peace must be punished. The lull that followed these trials at the international level came to an end after the Cold War with the establishment of the two ad hoc international tribunals for Yugoslavia (1993) and Rwanda (1994), signalling a resurgence in the use of international justice mechanisms to sanction perpetrators of atrocities.
In the last twenty-five years, there has been an increasing reliance on the use of international justice mechanisms, climaxing with the establishment of the ICC (Wegner 2015). This use is justified on several grounds, but mainly on the argument that deployment of international justice mechanisms in conflict and post-conflict situations could assist in ending the wars and in promoting peace. But this belief has not been properly studied to understand whether international justice mechanisms actually contribute positively to the peace process, and if they do, how. There are also few studies on which aspects of the work of international justice mechanisms promote which aspects of the peace process, and how. For instance, it is not certain whether it is the retributive or restorative or the truth-telling functions of the Court that have more impact on a peace process. It is also not certain which aspects of the peace process are influenced by any of these functions of the Court. There are several texts on the impact of international justice mechanisms on conflict and post-conflict situations (Schabas 2012), but there are few on how they actually impact on these situations (Kersten 2014; Clark 2011). The central aim of this study is to provide evidence-based answers to some of these questions and to stimulate more discussions that could provide answers to some of the controversies surrounding the involvement of international justice mechanisms in conflict and post-conflict situations.
Since the establishment of the ICC in 2002, the Court has intervened in eight countries in Africa. The involvement of the ICC in Africa will be important in shaping the extent and scope of peace processes in the continent as presently being witnessed in the eight countries where it has intervened. The involvement of the ICC may positively influence peace processes by speeding-up and deepening the judicial process, which may lead to sustainable peace, or alternatively may impede, complicate or stall peace processes. This study hopes to provide a clearer perspective on the impact of the interventions of the ICC on peace processes in three countries in Africa and the circumstances under which it has negative or positive impacts. The researcher hopes that this study will be of value for policymakers working on international accountability and conflict transformation since this study provides valuable insights into how the ICC is impacting on peace and security in CĂ´te dâIvoire, Kenya and Uganda.
The overarching research question this book will address is whether the interventions of the ICC in CĂ´te dâIvoire, Kenya and Uganda are contributing positively to the peace processes in the three countries? Drawn from this overarching question are four principal research questions which will also provide answers to the overarching research question. These questions are whether the involvement of the ICC in CĂ´te dâIvoire, Kenya and Uganda promotes accountability to the law in these countries; whether the involvement of the ICC in CĂ´te dâIvoire, Kenya and Uganda promotes reconciliation in these countries; whether the involvement of the ICC in CĂ´te dâIvoire, Kenya and Uganda promotes respect for victimsâ rights in these countries; and whether the ICC involvement deters future atrocities in CĂ´te dâIvoire, Kenya and Uganda.
1.2 Establishment of the International Criminal Court
The 1998 Rome Statute established the ICC. A Diplomatic Conference of Plenipotentiaries of the ICC was held in Rome, Italy, in June/July 1998 to discuss the draft ICC Statute that was prepared by the International Law Commission. The international community, on 17 July 1998, âreached an historic milestone when 120 states adopted the Rome Statute, the legal basis for establishing the ICCâ (Williams 2012). Four years later, the Statute obtained the requisite sixty ratifications for its entry into force on 1 July, 2002 (Williams 2012). In October 2018, 123 countries had ratified the Rome Statute of the ICC. Out of these 123 member states, 33 are African states, 19 are Asia-Pacific states, 18 are from Eastern Europe, 28 are from Latin America and Caribbean, and 25 are from Western Europe and other states.2
The ICC is the first permanent international criminal Court that was established to help fight impunity for the perpetrators of some international crimes. The ICC is an independent international organisation and is not part of the United Nations system. Although the ICCâs expenses are funded primarily by state parties, it also receives voluntary contributions from governments, international organisations, individuals, corporations and other entities. The establishment of the ICC came more than fifty years after the adoption of the Universal Declaration of Human Rights on 10 December 1948 and the 9 December 1948 resolution of the United Nations General Assembly mandating the International Law Commission to commence work on developing a draft statute of an International Criminal Court. After many years of work, marked by stoppages due to the Cold War, the final version of the draft statute prepared by the International Law Commission was adopted in 1998 (Schabas 2007). The main objective of the Rome Statute is to establish a permanent international court, complementary to national courts that will prosecute those who commit international crimes (Nouwen 2013).
1.3 The Globalisation of Accountability: The Establishment of the ICC and the Missing Points
The campaign to promote accountability by the international community through international justice mechanisms has a fairly long and tortuous history, stretching back to 1919 after the First World War (Schabas 2012) and taking root in 1945 during the Nuremberg and Tokyo trials. The establishment of international criminal tribunals for Rwanda and the former Yugoslavia in the 1990s and âinternationalisedâ or hybrid Courts in Sierra Leone, Lebanon, East Timor and Cambodia confirmed the global acceptance of international accountability.
The ICC, according to article 1 of the Rome Statute, was established as a permanent institution with power âto exercise its jurisdiction over persons for the most serious crimes of international concernâ. One of the motivations for establishing the Court is to put an end to impunity for the perpetrators of international crimes and thus to contribute to the prevention of such crimes. Apart from being the first permanent international Court, the Rome Statute also created some features that make the ICC unique. First, the Statute established an independent prosecutor, who is elected for a nine-year term by member states with the freedom to select situations for investigation (Schabas 2012). Secondly, the Statute created the principle of complementarity as a compromise between the legal duty to prosecute international crimes and the principle of state sovereignty (Jurdi 2011). Thirdly, the ICC is a treaty-based international criminal Court, not established as a victorâs Court or by the United Nations Security Council. Fourth, the ICC attempts to focus not just on retributive justice...