January 19, 2015
By Rebecka Buchanan – Research Assiant
The peace versus justice debate has been on-going since the establishment of international tribunals for the prosecution of serious international crimes. With the establishment of the International Criminal Court (ICC) came the United Nations Security Council’s (UNSC) power to refer situations to the Court for investigation under Chapter VII of the UN Charter. The UNSC has done so twice, in Sudan and Libya. All indicted individuals remain at large and it is questioned whether UNSC referrals, and subsequent ICC indictments, help or hinder conflict torn countries in achieving peace.
Establishment of the ICC
There has been a long running debate regarding whether seeking justice for the most serious international crimes can obstruct the facilitation of peace in conflict torn countries. This debate has exacerbated following the establishment of the ICC with a mandate to end impunity for the perpetrators of the most serious international crimes. The Court – as the first permanent institution of its kind – has jurisdiction over crimes against humanity, war crimes and genocide committed by nationals of, or on the territory of, a State party to the Rome Statute. Alternatively, jurisdiction may be achieved where a State not party to the Rome Statute decides to accept the jurisdiction of the ICC.
Where a State not party to the Rome Statute does not accept the Court’s jurisdiction, the UNSC may refer a situation to the Court for investigation under Article 13(b) of the Rome Statute. UNSC referrals have proved the most contentious route to achieving ICC jurisdiction as States that have intentionally not ratified the Rome Statute may fall under ICC investigation, as has been the case with the situations in Sudan and Libya. Generally, States may not be placed under obligations to which they have not consented. Therefore the controversy with ICC referrals by the UNSC is that they may be regarded as a violation of State sovereignty and non-intervention, two principles enshrined in international law.
In Resolution 1593 (2005) the UNSC, for the first time, acted under Chapter VII of the UN Charter to refer the situation in Darfur, Sudan to the ICC. Again, in Resolution 1970 (2011) the UNSC referred the situation in Libya to the ICC for investigation of the crimes committed in the State. The ICC Prosecutor issued warrants of arrest in respect of both situations swiftly, however in neither case have the indicted individuals been surrendered to the Court for trial. The Prosecutor issued arrest warrants in respect of Sudanese President, Omar al-Bashir, and the de facto head of State of Libya, Muammar al-Gaddafi. Both indictments were considered highly controversial by sections of the international community as, traditionally, standing Heads of State are afforded absolute immunity from arrest and prosecution by foreign domestic justice systems.
The Situation in Darfur
It is argued by some that the prospect of peace in conflict torn countries is obstructed following indictments for national leaders as the leaders must choose one of two options: accept the charges and surrender, or continue fighting. The arrest warrant for Bashir caused uproar from numerous members of the international community, including the African Union, demanding the UNSC to defer the ICC’s work in Darfur for at least one year to allow the on-going efforts at establishing long-lasting peace and reconciliation in Darfur, aimed at facilitating an early resolution of the conflict, to continue undisrupted.
A few days after the Pre-Trial Chamber’s (PTC) decision to issue Bashir’s arrest warrant the Government of Sudan expelled numerous international and local NGOs from Darfur amid fears that they had communicated information to the ICC Prosecutor. The African Union and the Government of Sudan have vowed not to cooperate with the ICC, while Bashir still remains at large and conflict continues to reign in Sudan.
President Bashir has publicly defied the ICC’s arrest warrants by conducting official visits in a number of countries, including Chad and Malawi. Both Chad and Malawi are members of the ICC and the PTC decided in 2011 that both States had failed to comply with their obligations under the Rome Statute by failing to arrest Bashir when he entered their territory. Both States argued that they were merely respecting Bashir’s immunity as a standing Head of State, however the PTC has denied Bashir holds any immunities in respect of the international crimes accused.
Although standing Heads of State may possess immunity from prosecution before foreign domestic justice systems, the Rome Statute removes immunity from jurisdiction before the Court. Article 27(2) states that immunities, under national or international law, shall not bar the Court from exercising jurisdiction over a person. It has been argued that Sudan has been placed in a position analogous to a State party to the Rome Statute by virtue of the UNSC’s referral in Resolution 1593, thereby removing Bashir’s immunity before the ICC.
The ICC does not have enforcement mechanisms of its own, and relies on support from its State parties. State parties to the Rome Statute are under an obligation to cooperate fully with the Court by virtue of Article 86, meaning that every State party must arrest and surrender Bashir, or any other individual for whom there is an arrest warrant, should they have the opportunity to do so. While Resolution 1593 decided that the Government of Sudan shall cooperate fully with the ICC, it did not place this obligation on States not party to the Rome Statute. States were merely urged to cooperate, significantly limiting the ICC’s possible effectiveness in ensuring the arrest of Bashir.
Peace v Justice Debate
There are arguments, from a human rights perspective, that indictments should only be used following the resolution of a conflict, as the prevention of future victimisation is more important than achieving justice for victims. The prospect of prosecution by the ICC may push perpetrators to fight harder and could completely sever fragile peace talks. However, on the other side of the debate it is argued that an indictment may facilitate peace talks and conflict resolution by altering the power dynamics by creating a deterrent effect.  There was a fear that the indictment for Slobodan Milosevic by the ICTY would impede peace negotiations in Kosovo, though only days after the arrest warrant was unsealed a peace agreement was made. Similarly, the unsealing of Charles Taylor’s arrest warrant was viewed as helping to move peace talks forward in Liberia and Sierra Leone.
Encouraging impunity for the perpetrators of the most serious international crimes – by ignoring the need for prosecution – may allow human rights violations and anarchy to continue. Pursuing international justice plays an important part in sustaining peace by reinstating the rule of law into poorly governed and lawless countries.
The ICC operates under the principle of complementarity, therefore where a State is unable or unwilling to prosecute, the ICC will. Criminal prosecution is one approach to transitional justice that States may utilise to achieve reconciliation. ICC prosecutions, alone, will not achieve lasting peace and it is recognised that other means of reconciliation are needed, together with prosecutions, to achieve lasting peace and justice in conflict torn countries. ICC Prosecutor, Fatou Bensouda, has argued that peace and justice are two sides of the same coin and can be pursued simultaneously. Compromising justice can be unsustainable; short-term peace may reinforce a culture of impunity, which could lead to the eruption of new conflicts in the future. Research by Human Rights Watch suggests that compromising justice will not provide the peace desired as perpetrators of gross human rights violations may be granted positions in new governmental structures and further abuses may persist. The root of the conflict must be addressed by bringing justice to victims; rather than simply bringing an end to violence.
High pressures have been placed on the ICC to ensure peace in conflict torn countries, however Bensouda has pointed out that the ICC is a judicial institution and cannot take into consideration the interests of peace. The UNSC has the primary responsibility for the maintenance of international peace and security, thus both referrals to the ICC were done with the maintenance of peace as the main objective. Bensouda has criticised the UNSC for its inaction following the referral of the situation in Sudan. She claims that no meaningful steps have been taken to apprehend and bring to justice the Sudanese suspects.
The lack of follow up support from the UNSC may be due to the strong outrage from the African Union and controversy surrounding the arrest warrant for a standing Head of State. Following the intense criticism from members of the international community, the UNSC may have chosen to pursue peace in Sudan, rather than exacerbate the situation by facilitating the prosecution of the President.
Should the UNSC refer the Situation in Syria?
In May, last year, France proposed a draft UNSC Resolution referring the situation in Syria to the ICC, however this resolution was, unsurprisingly, vetoed by China and Russia. As both China and Russia have vetoed every Chapter VII UNSC Resolution it is unlikely the situation in Syria would come under the ICC’s jurisdiction, unless Syria volunteered itself. Peace talks in Syria have been unsuccessful so far and there has been little done to facilitate humanitarian aid to a quarter of a million Syrians under siege.
Following the UNSC referral of the situation in Libya to the ICC and demands for ‘an immediate end to the violence’ the Libyan government continued brutalities against its own people and Gaddafi even threatened the lives of civilians publicly on radio. This prompted the UNSC to authorise the use of force in Libya for the protection of civilians, following which NATO and coalition States began military operations in Libya. Although South Africa, a non-permanent member of the UNSC at the time of drafting of Resolutions 1970 and 1973, voted in favour of both resolutions, the Zuma Government expressed regret at supporting these resolutions and severely criticised NATOs intervention in Libya. The African Union was adamant that African Nations, regardless of their ICC membership, would not arrest and surrender Gaddafi, believing that political solutions tailored to African countries was the best approach to bringing peace to the conflict in Libya.
South Africa, supporting the African Union’s stance, played a strong role in trying to assist with peaceful transitional negotiations in Libya. However following the referral to the ICC the Libyan Government had no intentions of ceasing its human rights atrocities, and it has been argued that the UNSC’s referral and authorisation of the use of force applied pressure to the Gaddafi regime, which may have perpetuated Gaddafi’s crimes against Libyan civilians. Gaddafi’s arrest warrant was terminated in 2011 following his death. The post-Gaddafi army has no effective government and is unable to disarm the estimated 1,700-armed groups currently operating in the country.
Considering the exacerbation of the conflict in Libya following the UNSC’s Chapter VII action, it would not be advisable to follow the same route with Syria until the conflict has settled. This does not mean that peace trumps justice in Syria; justice must be pursued. However, the route to achieving justice must not destroy the prospects of peace.
Although the ICC is still in its early years it has only secured prosecutions in one State that has been under investigation. The UNSC has utilised its power to refer situations to the ICC for investigation twice, and both referrals may have hindered peace rather than facilitated it. Nevertheless UNSC referrals represent an important part of the relationship between the UNSC and ICC and help the ICC achieve its mandate to end impunity. There is no conclusive evidence of the Court either impeding or facilitating peace, and we must be mindful that achieving peace in conflict countries will never be easy. Despite UNSC referrals and ICC indictments possibly prolonging conflicts they are crucial to facilitating lasting peace and justice.
 Sara Darehshori and Elizabeth Eveson, ‘Peace, Justice, and the International Criminal Court’, (19th March 2010) Oxford Transitional Justice Research – Research Article 1, p.1.
 Vienna Convention on the Law of Treaties, Article 34.
 http://www.peaceau.org/uploads/reportdarfureng.pdf, para.3.
 Steven Freeland, ‘Prosecuting Heads of State’ (2009) ALRS 25: www.austlii.au/au/journals/ALRS/2009/25.html
 Under Article 86 of the Rome Statute State parties are under an obligation to cooperate with the Court.
 Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir (12 December 2011) ICC-02/05-01/09-139.
 Ibid, para.43.
 Dapo Akande, ‘The Legal Nature of Security Council Referrals to the ICC and its Impact on Al-Bashir’s Immunity’, (2009) 7 Journal of International Criminal Justice 333, 340-342.
 ‘The Relationship between the ICC and the Security Council: Challenges and Opportunities’, (March 2013) International Peace Institute, p.4.
 S/RES/1593 (2005) para.2.
 Helen Cooper, ‘Waiting for Justice’, (27 July 2008) The New York Times: http://www.nytimes.com/2008/07/27/weekinreview/27cooper.html?_r=0&pagewanted=print
 Sara Darehshori and Elizabeth Evenson, ‘Peace, Justice, and the International Criminal Court’, (19 March 2010) Oxford Transitional Justice Research –Research Article 1, p.1.
 Dr Laura Davis, ‘The ICC: a Straw Man in the Peace-Versus-Justice Debate?’, (2013) African Mediators’ Retreat – The Oslo Forum Network of Mediators, p.45: https://www.osloforum.org/sites/default/files/Africa-Mediators-retreat-BP-ICC.pdf
 Sara Darehshori and Elizabeth Evenson, ‘Peace, Justice, and the International Criminal Court’, (19 March 2010) Oxford Transitional Justice Research –Research Article 1, pp.4-5.
 ‘No Justice, No Peace? Part Two’, (16 May 2014) Beyond Violence: http://www.beyondviolence.org/blog.php?id=94.
 ‘ICC Prosecutor Criticises UN Security Council Inaction on Darfur’, (20th June 2014) Global Justice Weekly: http://ciccglobaljustice.wordpress.com/2014/96/20/globaljusticeweekly-icc-prosecutor-criticizes-un-security-council-inaction-on-darfur/
 UNSC, 7180th Meeting, Thursday 22 May 2014, New York, S/PV.7180, p.4.
 Karen DeYoung and Liz Sly, ‘Humanitarian Aid Situation in Syria Deteriorating, United Nations Warns’, (30 April 2014) The Washington Post: http://www.washingtonpost.com/world/national-security/humanitarian-aid-situation-in-syria-deteriorating-united-nations-warns/2014/04/30/93f91842-d09e-11e3-a6b1-45c4dffb85a6_story.html.
 Geir Ulfstein and Hege Fosund Christiansen, ‘The Legality of NATO Bombing in Libya’ (2013) 62 ICLQ 159, 160.
 S/RES/1973 (2011).
 Narnia Bohler-Muller, ‘On the Authority of the International Criminal Court to Issue a Warrant of Arrest Against Muammar Gaddafi’, (September 2011) African Institute of South Africa, Asia policy Briefing Number 60, p.8.
 Ibid, P.2.
 Chris Tenove, ‘Libya: A Year in the Life of an ICC Referral’, (2 March 2012) Tenove: http://tenove.com/2012/03/02/libya-one-year-since-icc-referral/
‘Leave Libya Now, Foreign Office Tells Britons’, (27 July 2014), BBC: http://www.bbc.co.uk/news/uk-28509017.
 Situations and Cases, ICC: http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx