Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace, by Mark Kersten. Oxford: Oxford University Press, 2016. 254 pp, £60 hardcover 978-0-19-877714-4, £24.99 paperback 978-0-19-877715-1
The interventions of the International Criminal Court (ICC) in ongoing and active conflicts have elevated this institution to the level of a player in global politics. But since the entry into force of the Rome Statute in 2002, the pursuit of accountability for international crimes has been a contentious issue. Two phenomena have become intertwined since the 2000s: on the one hand, the creation of specialized international tribunals and later the ICC and the subsequent developments in international criminal justice; on the other, the fact that in the same period most armed conflicts have come to an end through negotiated processes.
Is it possible to simultaneously pursue justice and peace? Does the former compromise the latter? Should justice wait until peace is consolidated? Those questions capture the essence of the “peace versus justice” debate that this volume seeks to examine. In this debate, positions have often been situated at the extremes. For some, peace is not possible without justice, both can be pursued simultaneously and those responsible for international crimes must be held accountable for their acts. For others, attempts to deliver justice can put peace at stake by alienating those who should be at a negotiating table – justice must be forgotten or postponed until peace is stable.
This book by Mark Kersten aims to respond to and engage in this debate. The author argues that no side has succeeded so far in establishing a coherent research agenda on how to study the effects of the ICC interventions on peace. To overcome what he calls a dichotomous, problematic and insufficient debate (p. 9), a new set of questions is proposed to guide more empirically-driven efforts to address the ICC’s role and impact. These questions are: a) How should the effects of the ICC on conflicts be studied; b) What are the effects of the ICC on conflict, peace and justice processes; and c) Why does the ICC have these effects?
To address the how question, the author draws on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution, and negotiation theory, to develop a nuanced analytical framework to study the Court's effects on peace, justice and conflict processes. To address the what, the framework is applied to two cases: the interventions of the Court in Libya and in northern Uganda. Finally, the why is analyzed by gaining insights on the Court’s decision-making processes through interviews conducted at the ICC headquarters in The Hague.
Chapter 2 summarizes the contours of the “peace versus justice” debate. In favor of pursuing international justice as positive to peace the main arguments are ending impunity, the deterrent effect of criminal prosecutions and the stigmatization of the perpetrators. Against that thesis, it is argued that trials can contribute to prolonging violence by undermining peace negotiations and that justice is often used as a substitute for a concerted action to end a war. The author convincingly argues against the two-choice assumption that is “far too reductionist” and symptomatic of a field where more research is needed (p. 36).
The analytical framework to analyze the effects of international criminal justice on conflict resolution and peace processes is set up in Chapter 3. Drawing upon scholarship in peace negotiations, conflict resolution and peace and conflict studies, its assumptions are: that the main effects can be found in the conflict dominant narrative and on the attitudes and incentives of the warring parties towards a peace process; and they must be analyzed at the stages of pre-negotiations (timing, mediation strategies), negotiations (composition of delegations) and post-negotiations (persistence of spoilers, creation of national justice mechanisms). The framework intends to guide empirical case study and cross-case comparative research, an endeavor carried out in the following chapters.
Chapters 4 and 5 deal with the case or northern Uganda, where the government requested the intervention of the ICC to deal with crimes committed by the Lord’s Resistance Army (LRA) in 2003. Arrest warrants were issued in 2005 for several commanders, including leader Joseph Kony. One year later the parties entered negotiations. The intervention against one side of the conflict contributed to deny its political causes and to strengthen a narrative of good (the government) and evil (the LRA), sidelining the violence committed by both against civilians. The author finds evidence to conclude that this contributed to moving the LRA to the negotiation table, although in concurrence with other factors such as the independence of South Sudan and the end of Sudan as a host territory for the group. The intervention heavily influenced the composition of the negotiating table by preventing senior LRA commanders from participation, and the content by putting justice at the forefront of the negotiations. The collapse of the talks is attributed to the strategic calculations of the parties and their lack of desire to reach a negotiated agreement, more than to the ICC intervention.
The case of Libya is addressed in Chapters 6 and 7. The UN Security Council unanimously referred the case to the ICC as a response to the deteriorating situation and the civil unrest. For Kersten, the narrative of the Libyan war as a conflict between a brutal regime and a fair opposition was reinforced, helping to justify the goal of regime change and the NATO military intervention. This narrative strengthened the rebels’ commitment to a military victory and Gaddafi's departure from power and may have contributed to preventing the emergence of a mutually hurting stalemate. However, these conclusions need to be qualified, since other factors were in play and the potential for negotiations had been unclear even without ICC action.
Chapter 8 addresses the why question: why the ICC decides (or is requested) to act in some ongoing conflicts but not in others, and the decision-making processes that lead to it. So far, this process has led to intervention against one side of a conflict and not the other(s), and this selective focus is essential to understand how the Court affects peace, conflict, and justice: “Which side of a conflict is targeted for investigation and prosecution by the ICC is a determining factor in the effects of the Court’s intervention in ongoing and active conflicts” (p. 183). In self-referrals, the prosecution is directed toward non-state actors (the enemies of the self-referring government), while referrals by the UNSC target government officials.
For the author, this is the result of a negotiation between the ICC’s institutional interests and those of the political actors upon which it depends. Drawing upon the case studies, he concludes that decision-making, negotiation of interests, and selectivity are essential to understanding the effects of the Court on peace, conflict, and security.
The final chapter provides a summary of the main arguments and concluding reflections, identifies areas for future research and provides practical suggestions for practitioners engaged in international criminal justice and conflict resolution. The book contains a remarkable 43-page bibliography that will be an asset in the hands of scholars, practitioners and policymakers in the areas of international criminal justice, conflict resolution and peace and conflict studies. This value is reinforced by the analytical index, the list of interviews and a series of tables summarizing the ICC interventions and the main arguments provided by the author.
Although it is not discussed in Kersten’s book, the ICC is also playing an important role in Colombia, despite the fact that it has not intervened there. The fact that the ICC is keeping its eyes on the country to make sure that justice is delivered has led the parties to the peace negotiations (the FARC and the Government) to set up the Special Jurisdiction for Peace, a complex and comprehensive system of transitional justice that will deal with matters of truth, justice, reparations, and guarantees of non-repetition. This example reinforces the already convincing case made by Kersten for more empirical research on the impacts of the ICC in peace, conflict and justice and for a more nuanced debate that leaves behind the simplistic “peace versus justice” approach. As Kersten correctly argues, the time is ripe for a more complex vision of the interactions between peace, justice and conflict resolution.
Mabel González Bustelo is an international advisor and consultant in peace and security, Contributor Analyst to Wikistrat, and former Fellow of the Global South Unit for Mediation (BRICS Policy Centre, Brazil). @MabelBustelo