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Need for Continued and Concrete Commitment to Peace and Justice

As the ICC seeks to fulfill its mandate in ending impunity for the crimes of most serious concern to the international community, not surprisingly, it has become involved in situations where conflict is ongoing. In fact, such situations are arguably the most significant for the ICC to pursue given the possibility that the credible threat of prosecution can contribute to ending ongoing abuses.

Where conflicts are active, it is likely that peace negotiations or other initiatives aimed at stopping the fighting will take place in parallel to the ICC’s work. Indeed, this is currently the case in all situations in which the ICC is involved: northern Uganda, Darfur, the DRC, and the CAR.

Unquestionably, there are sensitivities in such scenarios and at times apparent tensions between achieving peace and justice, especially in the short-term. It is, however, particularly important at such moments that states seek to advance both objectives without forsaking one for the other. It is also crucial that states maintain clear support for the ICC’s involvement. Any other approach would be not only inconsistent with states parties’ declared commitments,¹⁸ but also short-sighted.

History has shown the devastating consequences of impunity.¹⁹ For example, we believe that the failure to address justice in the Comprehensive Peace Agreement between northern and southern Sudan has encouraged the Sudanese government and other parties to import abusive strategies from southern Sudan to the conflict in Darfur. Such strategies include the direct targeting of civilians, “scorched earth” tactics, and the use of rape as a weapon of war. In the eastern Democratic Republic of Congo, we have similarly seen that continued violence appears to be fueled by the impunity that has largely existed for alleged perpetrators of serious crimes.

Experience also has belied claims that justice thwarts peace. For example, the unsealing of the indictment of former Liberian president Charles Taylor for crimes committed in Sierra Leone – which was issued while he attended peace talks to end conflict in Liberia – was strongly criticized by some at the time for being poorly timed and potentially jeopardizing the negotiations. Yet, only a couple of months later a peace agreement on Liberia was concluded as Taylor stepped down from power. Taylor’s later arrest in Nigeria and transfer to the Special Court for Sierra Leone has furthermore helped enhance stability in the region.

More recently, in northern Uganda, the prosecutor’s issuance of arrest warrants for LRA leaders is widely credited with prompting them back to the negotiating table for peace talks. The agreement on accountability and reconciliation signed between the parties on June 29 as part of the talks is also illustrative. LRA leaders not surprisingly have sought to use peace talks to escape prosecution. In this effort, they have insisted that the warrants somehow be “dropped” as a precondition to achieving peace. The negotiations, however, have rightly reflected that this is not possible. In an effort to find an acceptable way forward, the parties agreed on June 29 to the need for trials of those who “bear particular responsibility” for serious crimes, envisioning national prosecutions of such alleged perpetrators. ²⁰

Human Rights Watch supports the ICC warrants for LRA leaders. We also recognize that the Rome Statute prefers national trials where states are willing and able to conduct them. It is unclear if the envisioned national trials would meet the Rome Statute’s requirements and other necessary international standards. It is the ICC judges who will ultimately determine whether such trials would be an acceptable alternative to ICC proceedings.

Major challenges undoubtedly still lie ahead to successfully concluding the Juba talks. Nevertheless, the June 29 agreement is an instance where insistence on justice has not spoiled peace efforts and has advanced discussions on accountability.²¹

The relationship between peace and justice is much more than a theoretical debate and exercise. It often frames the challenging reality that the court faces in the situations under investigation. It is essential that states parties remain committed to the court’s mandate and denounce efforts to forsake justice even in specific and difficult situations. States parties must act in accordance with their declared commitment to both peace and justice, including where there are tensions to be managed in the short-term. Moreover, allowing justice to be rejected, sidelined, or compromised in exchange for possible gains in peace negotiations risks undercutting critical advances over the past decade in signaling that committing serious crimes will not be tolerated.

Within this context, we believe that it is essential for states parties to use the upcoming ASP session to reaffirm that justice is essential to a lasting peace. Specifically, we urge states parties in the general debate and omnibus resolution to:

Stress that ensuring perpetrators of the most serious crimes are held accountable is crucial and a critical component to establishing a durable peace, including in ICC situations. In the omnibus resolution, such statements can build on existing language in the omnibus resolution from the ASP’s fifth session;²² and

Stress commitment to work to advance both peace and justice in concrete situations currently before the ICC. Such expressions in the general debate would be particularly timely with regard to northern Uganda.

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