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However, this detachment of individuals can also be a double-edged sword. On the one hand, it ensures that the society does not view the crimes committed as a societal malaise, but rather as acts committed by individuals seeking to undermine societal peace and stability. Thus, judicial intervention is seen as the eradication of evil elements within a society by arresting suspected criminals and bringing them to justice in a way that would contribute to future peace. On the flipside, where an indicted individual exerts influence on the ground or was (or is) regarded as 'central' to establishing peace, processes against such a person can be regarded as undermining peace.
This has been the argument often raised in respect of indictments of senior politicians, particularly heads of state. The debate on this is ongoing.
The issue of prosecuting senior government officials particularly heads of state is one that the ICC has had to contend with in several of the situations currently before it.(Prosecutor v Uhuru Muigai Kenyatta ICC 01/09-02/11) Given that the ICC is tasked with addressing crimes by those allegedly most responsible and that often times in a time of conflict these individuals can be quite senior in government this was anticipated.
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Indeed in negotiating the Rome Statute the issue of immunity came up. The final Statute in Article 27 does away with immunity from prosecution on the basis of official capacity. However, this Article should be read with Article 98 which creates an opt-out clause for countries that have made bilateral agreements to the contrary.
The ICC's role while significantly similar to that of ad hoc international criminal tribunals is somewhat and understandably different.
Unlike the ad hoc tribunals that were created for particular situations and established during the post-conflict phase or transition from conflict the ICC's jurisdiction is permanent and current.( Lafontaine, Sipowo) What this means is that the ICC will often have to deal with cases arising from ongoing conflicts even before efforts towards peacekeeping or peace-making have commenced. Thus justice would inevitably precede cessation of hostilities and could potentially serve as a forerunner to peace building.
In Uganda the Government referred the situation in the North of the country to the ICC at a time when the Lord's Resistance Army (LRA) was still active in that region.(ICC Press Release 2005) The situation related to the LRA's criminal activities and the inability of the Government to quell the rebellion. The Government had been negotiating peace with the LRA in vain. The threat of prosecution arguably forced the LRA to flee Uganda paving way for peace in the country. Of course the LRA is now a threat to stability in neighbouring countries such as South Sudan and the Central African Republic.( UNSC Press Release 2015) Despite arrest warrants only one of the individuals indicted by the ICC in this situation has been arrested and surrendered to the ICC. In the absence of actual proceedings against the LRA one can only hypothesise that if the LRA commanders indicted by the ICC had been captured and prosecuted arguably the LRA would not be a threat to regional peace today.
Interestingly at a domestic level as exemplified by Uganda, Uganda continues to recognise the importance of justice in security and stability (and thus in long term peace). To this end in 2008 further to the Juba Agreement between the Government of Uganda and the LRA the Government established a War Crimes Division (now the International Crimes Division (ICD)) of the High Court. The establishment of this division was necessitated by provisions in an Annex to the Juba Agreement which expanded on the framework for accountability described in the Juba Agreement and provided that a special division of the High Court of Uganda would be established to try individuals alleged to have committed serious crimes during the conflict.( Plesis, Louw, Maunganidze) Prosecutions by the specialised court would focus on those alleged to have planned or carried out widespread, systematic or serious attacks directed against civilians or who are alleged to have committed grave breaches of the Geneva Conventions. The Annexure also makes provision for the establishment of a special unit in the office of the Director of Public Prosecutions (DPP) for the purposes of carrying out investigations and supporting prosecution of crimes as agreed. Today the ICD has jurisdiction over war crimes, genocide and crimes against humanity. It also has jurisdiction over other serious international and transnational crimes including terrorism, human trafficking and piracy.(Section 6 of the High Court (International Crimes Division) Practice Directions Legal Notice No. 10 of 2011 without prejudice to Article 139 of the Constitution.)
In Sudan in respect of the situation in Darfur peace was also initially preferred over international justice. However, in the absence of noted efforts to end the crisis and re-establish peace the United Nations Security Council (UNSC) referred the situation to the ICC for justice to be served.( Reynolds ) In 2009 the AU High-level Panel on Darfur included in its recommendations the importance of justice in the peace process.(Report of the AU October 2009)To this end the Panel made several recommendations including that the role of the ICC as a court of last resort be recognized. Further the Panel recommended that there be national justice processes in the form of a hybrid Special Criminal Court on the Events in Darfur.(This special court was never established owing in large part to a lackof political will on the part of the Sudanese Government.) Efforts to establish peace in the country continue, as do efforts to bring to justice those considered most responsible. To date neither has been achieved notwithstanding international and regional efforts.
Important questions arise from these two examples. Firstly whether peacemaking hinged on certain people, that is, those regarded as politically necessary to negotiate complementarity from national and regional actions.
Further whether in pursuing justice to what extent such political considerations should be made. In essence should justice as a precondition to peace be the sole responsibility of the ICC? The Rome Statute is clear on both these issues. The Rome Statute recognises that grave crimes threaten peace and security ergo that addressing these crimes will serve to promote peace and security. Furthermore the Rome Statute provides wide prosecutorial discretion. The Prosecutor while having taken into account the gravity of the crime and the interests of victims can refuse to investigate or prosecute where s/he has substantial reasons to believe that proceeding would not serve the interests of justice. The Prosecutor may make several considerations in this regard. Again the Rome Statute allows for cases to be deferred by the UNSC if the interests of international peace and security so demand. Any such deferral will be for an initial period of 12 months and must be because proceeding with the investigation or prosecution would undermine international peace. To date no request for deferral has been granted. Last and certainly not least the Rome Statute makes the ICC a court of last resort that may only intervene (or be called on to intervene) to bridge a gap where national courts are either unable or unwilling to do so.The challenge, as anticipated, is in implementation.
Rodman suggests a way forward - at least for the ICC.55 In his view, the ICC cannot and should not be independent of politics. He suggests that the Court needs to operate within, rather than above, international strategies of conflict resolution. He contends that in most, if not all of its cases, the ICC will inevitably confront a 'peace versus justice' dilemma in which 'insistence on prosecution could criminalise those whose cooperation is necessary for a political solution.' Thus, in his view, the exercise of prosecutorial discretion should be central to the ICC's engagement with stakeholders involved in conflict management and peacebuilding. In essence, he argues that having these discussions early on will help maximise the prospects for accountability while at the same time minimise the risks to peace and human security. Rodman's arguments notwithstanding, if followed, this could exacerbate the pre-existing challenge of allegations of selective prosecution that the ICC's has been accused of. Particularly, as a judicial body, it could be argued that such process could serve to undermine the Court's legitimacy as an independent court that operates within the parameters set out in the Rome Statute.
This latter proposal suggests that bridging the gap between rhetoric and reality requires that those promoting international criminal justice (not limited to the ICC) and stakeholders involved in conflict management and peacebuilding must constructively engage. Doing so may well aid in ensuring that international criminal justice plays its important role as a measure contributing to peacebuilding.
The creation of the ICC raised high expectations that justice would be done for gross human rights violations and that, as a result of this justice, there would be an end to impunity.56 However, the ICC cannot reach these goals by itself. Mindful of the complementarity envisaged in the Rome Statute, domestic jurisdictions must also have this underlying aim to ensure justice and, as a result, promote peace. However, while ability and willingness to prosecute crimes can be assumed of functioning criminal justice systems, the same cannot be done in respect of conflict-stricken and post-conflict societies. When it comes to issues of building sustainable peace, it is this latter category of countries that is in question. Davis and Unger note that post-conflict societies are marked by a plethora of victims of serious crimes and many perpetrators.57 Addressing these crimes is crucial; however, post-conflict societies often have extremely weak and compromised judicial systems that are not well equipped and/or capable of delivering the required justice.58 Davis and Unger add that an (often unintended) impunity gap results.59
The No Peace without Justice (NPWJ) campaign proposes that efforts at national level be geared towards meeting four key objectives.60 First, efforts must contribute to broad support for accountability as a systematic response to massive violations of human rights and international criminal law. Second, there should be a reduction of the expectation of impunity and a removal of the perception of rewards for violence on the part of parties to the conflict, potential perpetrators, victims and affected populations. Third, it is necessary to increase the impact, effectiveness, transparency and accountability of mechanisms to stakeholders. Last, the universality of the Rome Statute should be promoted through encouraging its ratification and effective implementing legislation.
The reason why it is important to contribute to broad support for accountability is because, it can be argued that, countries that have implemented accountability processes after periods when human rights were grossly violated are more likely to achieve sustainable peace and development. To achieve this, there must be buy-in from key stakeholders, including policymakers, civil society and affected communities. Significantly, there needs to be an institutionalisation of accountability. In respect of international crimes, this would be through the criminal justice system - domestically and, where possible, regionally and internationally. This ties in closely with the need to reduce the perception that crimes will go unpunished and that impunity will prevail.
If the expectation of impunity was reduced, this could potentially discourage or deter would be perpetrators, while reinforcing support in the system from victims and others in society. However, it remains imperative to manage expectations on the scope and ability of international criminal trials to deter the commission of mass atrocities.61 Indeed, Cronin-Furman argues that while part of the intentions of the ICC, the current prosecutorial policy is not well targeted at producing a deterrent effect.62
This will be best achieved if the accountability mechanisms are seen also as effective, transparent and accountable. In this regard, it is imperative that institutions be held to a high standard and called to account as and if they falter. Last, beyond promoting ratification of the ICC so as to ensure universality of international criminal justice, countries must be encouraged to actively pursue domestic justice processes. All four of these can contribute to the process of long-term peacebuilding. Indeed, as Lambourne notes, justice as part of peacebuilding is more than just transitional; 'justice' must set up structures, institutions and relationships to promote sustainability.63
With the aforementioned in mind, justice should thus be understood as going beyond a narrow definition of criminal justice, which seeks only to punish the perpetrators of crime.(Davis and Unger) Justice should be seen also as strengthening the rule of law and accountability more generally. Further, justice should be seen to also seek to acknowledge the impact of the crimes on the victims and their wrongfulness and thus begin a process of reconciliation. In this regard, justice should be seen as aiming to restore the dignity of victims and to pave a way for long term healing. It has been argued that these processes will help build ties between population groups and potentially ensure that societies are more conflict-resilient as a result.65 This inclusive justice is clearly important in efforts to build sustainable peace.66
It should also be understood that not all post-conflict contexts going through a process of peacebuilding would call for prosecutions of international crimes. In those contexts where it is necessary to do so, international criminal justice, together with other measures, can serve to ensure long-term peace. It is worth reemphasising that international criminal justice is only one of several processes that should form part of peacebuilding.
Indeed peacebuilding and international criminal justice are mutually reinforcing and, if carried out properly are beneficial in ensuring accountability and sustainable peace. However, these two are not only intricately connected but are also equally important in promoting and sustaining peace. Justice in its various forms is increasingly recognised as a necessary element in contributing to peace. In this regard it should be underscored that other forms of justice not explored in this paper are also invaluable and should complement international criminal justice efforts. Lessons in this regard can be drawn from experiences in Rwanda, Uganda and Sierra Leone and these lessons assist in establishing a road map as to how tribunals may be used in the furtherance of peace building and peace keeping. Further afield, the experiences of dealing with peace and justice issues arising from the conflict in the former Yugoslavia are particularly useful and relevant and lessons should also be drawn from such experiences.
It must be concluded that the role that international courts and Tribunals may play in order to preserve the conformity of international law is rather limited. International law is decentralized and fragmented, judicial bodies are consequently autonomous instruments lacking structural coherence and their decisions are binding exclusively upon the parties to the case and do not have any legal effect for other judicial bodies.
Judicial Autonomy. (2019, Dec 03). Retrieved from https://studymoose.com/judicial-autonomy-essay
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