HUMAN RIGHTS QUARTERLY
Are International Criminal Tribunals a
Disincentive to Peace?:
Reconciling Judicial Romanticism with
Political Realism
Pa yam Akhavan*
ABSTRACT
A significant challenge to the efficacy of international criminal justice in
global governance is the view that prosecution of political leaders still in
power creates a disincentive to peace and thus prolongs atrocities. While
“judicial romantics” are often oblivious to these complexities, the “political
realists” have failed to demonstrate that tribunals are in fact an impediment
to peace and stability. The impact of the International Criminal Court on
Riyarn Akha van SJD (Harvard) is Professor of International Law at McGill University and was
previously Senior Fellow at Yale Law School and Distinguished Visiting Professor at University
of Toronto. He has published extensively on international criminal law and human rights
including “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?,”
95 American Journal of International Law 7 (2001), selected by the International Library of
Law and Legal Theory as one of “the most significant published journal essays in contem-
porary legal studies.” He also authored the “Report on the Work of the Office of the Special
Advisor of the United Nations Secretary-General on the Prevention of Genocide” (2005),
served as Chairman of the Global Conference on the Prevention of Genocide (2007), and
is Co-Producer of the documentary film Genos.Cide: The Great Challenge (2009). He was
the first Legal Advisor to the Prosecutor's Office of the International Criminal Tribunals for
the former Yugoslavia and Rwanda at The Hague (1994—2000) and appointed as counsel in
several high-profile cases before the International Court of Justice, the International Criminal
Court, and the European Court of Human Rights. He has served the United Nations in Bosnia,
Croatia, Cambodia, Timor Leste, Guatemala, and Rwanda, and his work on accountability
for atrocities, including establishment of the Iran Human Rights Documentation Centre,
has been featured in the New York Times. He was selected in 2005 by the World Economic
Forum as a Young Global Leader, and in 2007 he was appointed by the Government of
Canada as a Director of the International Centrè for Human Rights and Democracy.
The author gratefully acknowledges the ass stance of Philipp Kastner, Erin Morgan, and
lu(ia Turvey in the preparation of this article.
Human Rights Quarterly 31(2009) 624—654 © 2009 fiy The Johns Hopkins University Press
/
2009 Are International Criminal Tribunals a Disincentive to Peace? 625
three recent situations in Africa suggests that judicial intervention is more
likely to help prevent atrocities rather than impede peace, even if arrest
warrants cannot be executed.
I. INTRODUCTION
There appears to be intrinsic merit in prosecuting those responsible for
mass atrocities. Leaving such crimes unpunished contradicts our intuitive
conceptions of fundamental justice. An equally unimpeachable goal, how-
ever, is putting an end to such atrocities—as they are happening—through
the pursuit of peace. The dilemma is whether, in certain circumstances,
the prospect of prosecution creates a disincentive for implicated leaders to
end war or surrender power. This debate is embodied in the caricatures of
the naïve “judicial romantic” who blindly pursues justice and the cynical
“political realist” who seeks peace by appeasing the powerful. Although
this debate was largely irrelevant in the context of “victor's justice” at [ he
Nuremberg trials, it is of increasing global importance given the frequency
of situations in which the international community seeks to end atrocities
through negotiation rather than military intervention. It may even be said
that contemporary tribunals are most often a substitute for more forceful
measures against mass atrocities. In light of this reality, a leading criticism
of international criminal tribunals is that they impede peace settlements
and thus prolong atrocities. The assumption is that leaders facing threats of
prosecution are more likely to prolong conflicts that keep them in power
whereas immunity increases the incentives to end atrocities. Beyond ad hoc
tribunals, the gradual permanence of global justice through the International
Criminal Court (ICC) has given the so-called “peace versus justice” debate
a systematic relevance in global governance.
This article sets forth a general framework for assessing the contribution of
international criminal justice to the prevention of atrocities and then examines
the more immediate impact of the ICC on three recent conflicts. These cases
demonstrate that within a broader context of the gradual mainstreaming of
global justice, tribunals alter the cost-benefit calculus of using atrocities as
an instrument of power with often subtle but far-reaching consequences. In
Côte d'lvoire, the mere threat of an ICC investigation contributed to prevent-
ing escalation of an inter-ethnic war by putting an end to state-sponsored
incitement to hatred. In Uganda, ICC arrest warrants against rebel lead-
ers responsible for mass atrocities helped pressure neighboring Sudan to
eliminate a long-standing safe haven for the rebels, bringing to an end a
devastating civil war. Even in Darfur, where there has been little willingness
by the United Nations to support the ICC, the diplomatic maneuverings and
internal political divisions in Sudan indicate that arrest warrants have at the
very least made the continuation of atrocities more costly than before.
626 HUMAN RIGHTS QUARTERLY Vol. 31
H. THE PEACE VERSUS JUSTICE bEBATE AND CONTEMPORARY
CONFLICTS
With the unconditional surrender and military occupation of Germany, the
Nazi leaders were in no position to negotiate immunity from prosecution
with the Allied powers. The Nuremberg paradigm of victor's justice pre-
cluded any need to balance the demands of peace and justice. The same
circumstances applied to the trials of Japanese leaders before the Tokyo
Tribunal. If anything, upon the conclusion of a war that had consumed
millions of lives, and amidst calls for summary execution of the much-
loathed vanquished leaders, criminal justice was viewed as an expression
of tremendous magnanimity.
With the establishment of the International Criminal Tribunal for the
formerYugoslavia (ICTY) in 1 993, a new model of global justice emerged. As
the evidence of “ethnic cleansing” surfaced, punishing leaders responsible
for such abominations became a moral imperative. Absent a willingness
to intervene, however, the international community had to resign itself to
negotiating a peace agreement with the very same leaders—still in positions
of authority—to put an end to an armed conflict replete with atrocities. Fol-
lowing the 1995 Dayton Peace Accords and the conclusion of the Bosnian
war, this unprecedented situation gave rise to a then famous debate in the
pages of this journal as to how peace and justice could be reconciled. 1 The
ICTY model of justice, which established a pattern that has since repeated
itself, draws on this debate in response to scenarios where the imposition
of victor's justice is impossible.
A qualified exception to this post-Nuremberg pattern of justice is the
International Criminal Tribunal for Rwanda (ICTR), which was established
in 1994 after the military defeat of the génocidaires by the Tutsi-led Rwan-
dese Patriotic Front (RPF). Unlike Nazi Germany, this was not a situation of
unconditional surrender. Hutu extremist insurgents continued to attack the
new Rwandan government from the territory of what was then Zaire, and
from 1998 onwards, the spillover of the conflict claimed three to four mil-
lion victims in the newly established Democratic Republic of Congo (DRC).
Nonetheless, the genocidaire leadership was largely relegated to seeking
asylum in various countries from which they were eventually arrested and
surrendered for trial before the ICTR. The pattern of global justice that started
with the ICTY resumed with the hybrid UN tribunals in Sierra Leone, Timor
Leste, and Cambodia, as well as the ICC, all of which have had to operate
1. See Payam Akhavan, The Yugoslav Tribunal at a crossroads: The Dayton Peace Agree-
ment and Beyond, 15 HUM. RTS. Q. 259 (1996); Anonymous, Human Rights in Peace
Negotiations, 18 HUM. Ris. Q. 249 (1996).
2909 Are International Criminal Tribunals a Disincentive to Peace? 627
in circumstances where implicated leaders still retained some measure of
power. This post-Nuremberg model of tribunals has become increasingly
entrenched. For better or worse, aside from such notorious precedents as
Saddarn Hussein's trial before the Supreme Iraqi Criminal Tribunal, very few
instances of victor's justice exist in the contemporary world. From Bosnia
to Rwanda to Darlur, the international community has used tribunals more
as a substitute for rather than a complement to forceful measures to protect
civilians against mass murder.
At the same time, these once-sacrosanct tribunals that were considered
to be the only glimmer of hope where there was no willingness to inter-
vene have been criticized as wasteful and elitist institutions that exacerbate
rather than prevent atrocities. 2 In the post-euphoria phase of global justice,
it has been increasingly argued that local solutions, such as amnesties in El
Salvador and Mozambique, have been “highly effective in curbing abuses
when implemented in a credible way,” 3 and that, combined with truth and
reconciliation commissions, these measures have achieved better resu Its
than international prosecutions. 4 Most notably, the South African Truth and
Reconciliation Commission has been praised for ensuring a peaceful transi-
tion from apartheid to a multiracial democracy.
In this light, the so-called “peace versus justice” debate has assumed a
broader systemic dimension as it grapples with the gradLial permanence of
tribunals in situations where leaders responsible for atrocities still exercise
power and where the pursuit of justice often competes with the imperative
of a peaceful transition, What then is the context in which to assess the
interrelationship of iribunals with peace negotiations and their impact on
preventing future atrocities? Beyond speculative assertions, whether of judicial
romantics or political realists, how can the experience of institutions like
the ICC inform an increasingly complex and vital debate on accountability
as an ingredient of global governance?
2. Some commentators have vigorously criticized international criminal tribunals, arguing
infer a/ia that “they have squandered billions of dollars, failed to advance human rights,
and ignored the wishes of the victims they claim to represent.” See Helena cobban,
Thin/c Again: International Courts, FOREIGN Poi'v, Mar/Apr. 2006, at 22, 22.
3. Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies
of International Justice, INT'l SECURITY, Winter 2003/04, at 5, 6.
4. HELENA CORRAN, AMNESTY AFTER ATROCITY? HEALiNG NATIONS AFTER GEN000E AND WAR cRIMES 194
(2007). For a niore general discussion on truth commissions, see Jonathan D. Tepperrnan,
Truth and Consequences, FORLIGN AFF., Mar/Apr. 2002, at 128.
628 HUMAN RIGHTS QUARTERlY Vol. 31
Ill. THE GLOBAL CONTEXT: TRIBUNALS, GENERAL DETERRENCE,
AND PEACE
A. Is There a Cost-Benefit Calculus to Radical Evil?
Many imperatives, including national reconciliation, vindication of victim
suffering, or symbolic breaks with the past, are invoked to justify tribunals.
While these objectives are broadly related to preventing the recurrence
of atrocities, the central utilitarian argument in support of tribunals is the
nebulous “deterrence” function of prosecutions. How can global imperatives
such as deterrence be defined and reconciled with the immediate exigen-
cies of local contexts in the midst of armed conflict or political transitions?
The domestic justifications for criminal punishment—themselves ill-defined
and speculative—cannot be casually transplanted into the context of mass
atrocities. While retribution for “radical evil” 5 may be morally persuasive,
utilitarian objectives such as deterrenëe are seemingly elusive. Some would
argue that the all-consuming primordial hatreds that motivate genocide defy
the simplistic rationalist assumption of cost-benefit calculus by perpetrators
upon which modern deterrence theories are based. 6 Even the more flexible
notion of “general prevention”—i.e., socio-pedagogical stigmatization of
crime through judicial process, leading to the reinforcement of habitual
lawfulness—seems to collide with the inverted morality of genocide that
elevates mass murder to an expression of glorious heroism. We are dealing
with societies where the intended victims have been so thoroughly dehu-
manized that their extermination is equated to getting rid of infestation by
“vermin” or “cockroaches.” The perversity and success of genocidal ideologies
from Nazi Germany to Rwanda is their ability to appropriate the discourse
of lofty and noble causes to justify radical evil, to transform unspeakable
cruelty to commendable acts of “cleansing” and “purification.” Bearing this
reality in mind, if a man is capable of disemboweling pregnant women or
ordering the rape of children merely because they belong to the “wrong”
race, will he pause to consider that his conduct may lead to prosecution?
Within such an aberrant context, how can the credible threat of punishment
contribute to the prevention of atrocities?
The proponents of global justice emphasize that such “broader deterrent
ambitions are dependent upon the capability and willingness of powerful
states to back them up.” 7 Others point out that while it is “impossible to
5. In the words of Hannah Arendt in THE OR dINs OF TOTALITARIANISM (1951).
6. See, e.g., Cobban, Think Again, supra note 2.
7. Kenneth A. Rodman, Darlur and the Limits of Legal Deterrence, 30 HUM. Ris. Q. 529,
560 (2008).
2009 Are International Criminal Tribunals a Disincentive to Peace 629
prove that war crimes prosecutions deter future atrocities. . . . evidence
presented at the recent tribunals strongly suggests that the failure to pros-
ecute perpetrators such as Pol Pot, Idi Amin, Saddarn Hussein, Augusto
Pinochet, and Papa Doc Duvalier convinced the Serbs and Hutus that they
could commit genocide with impunity.” 8 As discussed below, there may
be general merit to the argument that with effective enforcement, tribunals
can contribute to the long-term transformation of the boLindaries of power
and legitimacy. Without understanding the particular anatomy of genocidal
violence, however, these specious utilitarian justifications fail to adequately
explain how the credible threat of punishment can influence behavior in
the extreme context of radical evil.
In considering the peace versus justice debate, a preliminary question is
why the burden of proof rests with the proponents of justice. 11 retribution is
a worthy moral objective, is a favorable impact on peace a requisite justifica-
tion for tribunals, or can this effect remain indeterminate? Is it necessary to
try to measure deterrence with mathematical precision to satisfy the skeptics?
What is the quantum of proof required for what is evidently not an exact
science? As set forth below, what can be ventured by way of soft empiri-
cism in the nascent ICC system suggests that while prosecutorial discretion
must adapt to the complexities of each situation, there is little evidence to
support the contention that tribunals are a disincentive to peace, whether in
negotiations or post-conflict peacebuilding. On the contrary, some indicia
show that the mere threat of prosecution may have a stabilizing effect by
exacting a cost for continuing atrocities and by undermining the power of
genocidal leaders whose manifest treachery often renders unrealistic the
prospect of good faith peace negotiations.
Admittedly, it is difficult to presume that ruthless warlords and géno-
cidaires are rational actors who will invariably engage in a dispassionate
analysis of whether atrocities are a cost-effective instrument of power in
view of possible prosecution. However,there is also a temptation to depict
such leaders as repositories of mystical diabolical forces whose primordial
power-lust is inscrutable. This fashionable rebuke of rationalism has to ac-
count for the hard political calculus of mass atrocities, even if clothed in the
guise of visceral conflicts of identity. Just as the judicial romantics are not
realistic about the limits of ritualistic ordering of overwhelming evil through
criminal trials, the political realists often romanticize the profane rules of
political conflict as inexorable outbursts of tribal hatred in exotic lands. This
8. Michael P. Scharf, Joctling over Justice, FOREIGN Po s, May/June 2006, at 6, 7. For a study
on contribution of international criminal justice to deterrence, see David Wtpprnan,
Atrocities, Deterrence, and the Limits of international Justice, 23 FOROHAM INTL LI. 473
(1999).
630 HUMAN RIGHTS QUARTERlY Vol. 31
essentialized view of identity disregards the pliability and instrumentalization
of ethnicity by political elites as a means of acquiring and consolidating
power. Far from being a spontaneous outburst of tribal hatred, genocidal
policies require considerable planning and preparation in addition to efficient
organization and utilization of resources under strong and unified leadership.
Permutations of this political logic of hate-induced identity homogenization
leading to atrocities can be discerned in a wide variety of contexts from Nazi
Germany and the former Yugoslavia to Rwanda and Darlur. It suggests that
somewhere in the anatomy of genocide lies a cost-benefit calculus, however
diabolical its parameters may be. It is in this regard that the romanticization
of genocidal violence in the name of political realism overlooks the potential
impact of tribunals on the behavior of political leaders.
B. The Complexities of Justice
In contrast with the so-called political realists, the judicial romantics are wont
to gloss over the complexities of conflicts by creating an idyllic meta-political
sphere within which justice is done. The immediate impact of tribunals on a
peace settlement or surrender of authoritarian rule in a particular situation
cannot be disregarded merely because of an asserted broader, more gradual
impact on global deterrence and peace. In certain circumstances, political
compromise or alternatives to prosecution may be a necessity that cannot be
easily escaped. 9 Some stakeholders believe that the immediate need to save
lives outweighs any speculal:ive deterrent effect of justice. Furthermore, even
the proponents of tribunals have to acknowledge at some point that power
realities may dictate whether lofty ideals of accountability are realistic or not.
Absent victor's justice, where accused leaders are dethroned and neutral-
ized, impunity and even power sharing may appear to be the most viable
options for negotiating an end to hostilities or authoritarian rule. So long as
a demagogical head of state or warlord is firmly in power, an indictment by
a tribunal may merely imply the inconvenience of not being able to travel
abroad and—as demonstrated by the travels of Sudan's President Bashir to
certain sympathetic countries despite the ICC arrest warrant against him—
even that restriction may be partially circumvented. Some would add that
given the xenophobic or exclusionary nature of genocidal ideology, isolation
from the international community might actually strengthen leaders who prey
on fears and hatred rather than promote the freedom and prosperity of their
‘i• For a discussion on a necessity exception o prosecutions in certain situations, see
Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the
International Criminal Court, 14 EUR. J. lNT' L. 481, 493 (2003).
2009 Are International Criminal Tribunals a Disincentive to Peace? 631
citizens )° Thus, the indictment of a charismatic leader or self-proclaimed
nationalist savior may even transform him into a martyr among followers
saturated with an pus” against “them” mindset.
The quixotic project of judicial romantics often neglects the complexi-
ties that tribunals must navigate in the context of peace negotiations and
peacebuilding, even if the decision to opt for a political compromise is
made by other actors. International criminal justice operates in a multifac-
eted situation with multiple stakeholders who must make difficult political
choices. Furthermore, even if a prosecutor is adamantly non-political, seem-
inglyroutine investigative and prosecutorial decisions may invariably have
far-reaching political implications that cannot be easily dismissed. Unlike
domestic judicial systems, where prosecution of serious crimes such as mur-
der or rape is usually not subject to discretion, international judicial systems
necessarily must exercise such discretion. The combination of such factors
as the multiplicity of serious crimes, barriers to investigations and arrests,
the cost and length of trials, and the capacity of tribunals only to prosecute
a handful of perpetrators, makes it difficult simply to “follow the evidence”
in deciding who to indict. The policy of the ICC is to pursue those “who
bear the greatest responsibility” for international crimes. 1 ' Does this imply
that only leaders above a certain rank should be prosecuted? What about
the “willing executioners” of criminal designs hatched by such leaders? Are
so-called “small fish” obviously less responsible?
In peace negotiations, as well as post-conflict peacebuilding, these
difficulties are exacerbated by the impact that these choices will have on
military stability and national reconciliation. Some argue that there must
be a “sequencing” of investigations, indictments, and the issuance of ar-
rest warrants to ensure that tribunals will not impede peaceful outcomes to
conflict. Others maintain that such considerations politicize the institutions
tasked with delivering impartial justice. 12 In any event, this is not a question
of impunity but rather a question of astute timing. In the DRC for instance,
the ICC initially focused its investigations on the Ituri province, rather than
North and South Kivu where mass atrocities were also committed. The pres-
10. In this respect, see the discussion on the indictment of President Bashir of Sudan be-
low,
1 1. Office of the Prosecutor, Int'l criminal Court (ICC-OTP), Paper on Some Policy Issues
Before the Office of the Prosecutor (Sept. 2003), available at http://www.amicc.org/clocsl
OcampoPol icyPaper9_03.pdf.
12. The ICC Prosecutor has strongly condemned the strategy of sequencing ICC decisions
with peace negotiations. Luis Moreno-Ocampo, Chief Prosecutor, Int'l Criminal Court,
Keynote Addressat the Yale Law School Conference: The Pursuit of International Criminal
Justice: The Case of Darfur (6 Feb. 20p9), available at http:/fwww.icc-cpi.int!NRlrdonlyres/
F04CB063-1 Cl E-463 E-B8FB-5ECEO76FB 1 E0/2 79792/090206_Prosecutorskeynotead-
dressinyale. pdf.
632 HUMAN RIGHTS QUARTERLY Vol. 31
ence of peacekeepers from the UN Mission in the DRC (MONUC) in Ituri
greatly facilitated the security required for conducting on-site investigations.
Furthermore, the insurgents in Ituri did not have substantial links with the
DRC government upon which the ICC depends for judicial cooperation) 3
The situation is different in the Kivus where an lC investigation would have
encountered more significant obstacles. 4 How should a prosecutor assess
such constraints or opportunities in deciding how to prioritize or sequence
investigations while maintaining inipartiality and independence?
Additional considerations arise when a prosecutor selects targets for
investigation in an inter-ethnic conflict where atrocities have been overwhelm-
ingly committed by one side against the other. Should all parties be indicted
to preserve an image of impartiality? This approach is reflected in the ICTY
prosecutor's decision to prosecute Bosnian Muslim and Albanian leaders
and military commanders who were either acquitted or received nominal
sentences for crimes that were dwarfed by those committed by Bosnian Serbs,
such as the 1 995 Srebrenica genocide in which some 7,000 Muslims were
executed. Does such an approaclipose a danger of inadvertently equating
impartiality with moral parity in a one-sided situation?
This dilemma is rendered even more complicated for the ICC because
of the “complementarity” scheme, which gives the primary responsibility to
national courts where they are “willing” and “able” to genuinely prosecute
international crimes. 15 There is nothing to impede states parties from making
“self-referrals” where they voluntarily relinquish national jurisdiction to the
ICC. Although the ICC ultimately determines if it will exercise jurisdiction,
some commentators have expressed rrtisgivings about the one-sided nature
of such referrals. Consider the case of the Lord's Resistance Army (LRA) in
Uganda. For almost two decades, the LRA insurgents had committed mass
atrocities against civilians, including recruitment of tens of thousands of
child soldiers who terrorized their own communities under duress. The gov-
ernment's counterinsurgency campaign involved abuses such as the forced
displacement of populations in camps as a security measure. While the ICC
13. More recently, the Congolese authorities have also arrested former insurgents who had
established closer links to the government. Mathieu Ngudjolo Chui had even been in-
tegrated as a colonel into the national armed forces of the DRC when he was arrested
and surrendered to the Court by the DRC authorities. See Press Release, Int'l Criminal
Court, Third Detainee for the International Criminal Court: Mathieu Ngudjolo Chui (18
Jan. 20081.
14. The ICC announced in April 2009 that the third DRC investigation would focus on the Kivu
provinces. Fifteenth Diplomatic Briefing of the International Criminal Court, Compilation
of Statements (7 Apr. 2009), available at http://www.icc-cpi.intlNRlrdonlyres/1 E5F488B-
2 FA9-40F4-93 78-A3 S6AF6CBA6E/280246/Compi lation_of...Statements_1 5. .DS.pdf.
15. Rome Statute of the International Criminal Court, adopred 17 luly 1998, art. 17, U.N.
Doc. k/CONF.183/9 (1998) (entered into force 1 July 2002).
a'
2009 Are International Criminal Tribunals a Disincentive to Peace? 633
Prosecutor has been criticized for delivering one-sided justice 15 and failing
to recognize the true problem of impunity in this situation, 7 is it appropri-
ate to equate the scale and nature of atrocities committed by government
forces with those committed by the LRA?
Such choices have an obvious impact on various issues such as the pri-
oritization of limited resources based on the gravity of crimes, dependence
on governments for security and judicial cooperation, 18 long-term capacity
building by national courts, a sense of domestic ownership of justice for
past abuses, perceptions of impartiality in deeply divided nations, and the
role of alternative accountability mechanisms like truth commissions and
traditional justice. While judicial romantics have not adequately incorpo-
rated these complexities into the international criminal justice equation, the
assumption that international criminal justice is oblivious to hard political
choices has been supplanted by the Rome Statute. Article 53(1 )(c) expressly
recognizes that a prosecutor must consider whether “taking into account
the gravity of the crime and the interests of victims, there are nonetheless
substantial reasons to believe that an investigation would not serve the
interests of justice.” 19
Leaving aside these considerations, the more fundamental question
remains as to whether tribunals that are adequately responsible to political
16. See, e.g., HUMAN RIGHTS WATCH (HRW), COURTINU HIsToRY: TIlE LANDMARK INTERNAl IONAL CRIMINAL
COURT'S FIRST FIvE YEARS 41 (July 2008), available at http://hrw.org/reports!2008/iccO708/
cco7o8web.pdf. Shortly after the referral of the situation to the ICC Prosecutor, Human
Rights Watch had already called for investigations into crimes committed by government
troops. See News Release, HRW, ICC: Investigate All Sides in Uganda (4 Feb. 2004),
available at http://www.hrw.org/en/newsI2004/02/04/icc-investigate-all-sides-uganda.
See also TIM ALIEN, TRIAl. JUSTICE: THE INTERNATIONAL CRIMINAL COURT ANI) TIc LORD'S RESISTANCE
ARMY 98 (2006).
17. William Schabas, First Prosecutions at the International Criminal Court, 27 HUM. RT5.
L.j. 25, 31 (2006). Some commentators, including Schabas, have also argued that the
ICC should not have accepted Uganda's self-referral, arguing that Uganda is able and
willing to prosecute the LRA leaders. Others, including the author, have argued that.
this situation must be analyzed under the premise of positive complementarity. See
Payam Akhavan, The Lord's Resistance Army Case: Uganda's Submission of the First
State Referral to the International Criminal Court, 99 AM. J. INT'L L. 403, 413 (2005).
18. For an analysis of the cooperation regime of the Rome Statute, see Rod Rastan, The
Responsibility to Enforce—Connecting Justice with Unity, in TI-ER EMERGING PRACTICE OF THE
N INTERNATIONAl CRIMINAl. COURT 163 (Carsten Stahn ed., 2fln9).
19. I have argued elsewhere that “Itihis aspect of prosecutorial discretion is particularly
important when investigations or prosecutions may arguably prolong or aggravate an
ongoing conflict or undermine a fragile peace process.” Akhavan, The Lord's Resistance
Army Case, supra note 17, at 416. The Office ol the Prosecutor, while emphasizing the
importance of protecting victims and witnesses, has suggested that article 530 )(c) is to
be interpreted narrowly and that a decision not to proceed on the basis of the interests
of justice should only he made as the last resort. ICC-OTP, Policy Paper on the Interests
F. of Justice (Sept. 2007), available at http://www.icc-cpi mt/N Rlrdonlyres/772C95C9-F54D-
4321-B F09-73422 BB2352 t I/i 43640/lCCOlPlnterestsOfJustice.pdf.
*
634 HUMAN RIGHTS QUARTERlY Vol. 31
complexities within the proper scope of their judicial functions may still
impede peace negotiations and induce leaders to prolong atrocities. At the
theoretical level, this may involve a balancing of interests between achiev-
ing global deterrence by avoiding precedents of negotiated impunity on the
one hand, and on the other, addressing the immediate need to stop further
victimization at the hands of ruthless leaders who will do whatever is neces-
sary to preserve their interests. As is often the case, the way in which these
tensions play out in reality is considerably more complex than abstract debates
may suggest. Despite this complexity, case studies reveal a certain simplicity
as to how the credible threat of punishment, or the mere stigmatization of
indictment, influences the behavior of such ruthless leaders.
IV. MEASURING PREVENTION: RECENT ICC CASE STUDIES
I have attempted elsewhere to delineate the impact of tribunals on the pre-
vention of atrocities based on the early experience of the ICTY and ICTR. 2 °
That inquiry focused on preventing atrocities in the context of post-conflict
peacebuilding, as the operation of those ad hoc tribunals coincided with
the conclusion of hostilities. In Bosnia and Herzegovina, the indictment of
hate-mongering leaders such as Radovan Karad k and Ratko Mladk and
their political marginalization helped stabilize the fragile multiethnic federa-
tion envisaged by the Dayton Peace Accords. In Rwanda, the indictment of
the genocidaires undermined their capacity to reconstitute and legitimize
themselves. With the passage of nearly a decade since that inquiry, and with
the emergence of the ICC as a functioning tribunal, now there are consider-
ably more cases to study. Given the ICC's permanent status, its preventive
capacity is at least notionally enhanced because, unlike the ICTY and ICTR,
there is no lapse of time between the commission of atrocities and the es-
tablishment of its jurisdiction. Although this applies more directly to states
that have ratified the Rome Statute, it is also relevant for states that face the
prospect of a Security Council referral under Chapter VII of the UN Char-
ter. 21 Furthermore, because the ICC has been vested with jurisdiction over
cases that involve impending or ongoing atrocities, it is possible to assess
its impact in circumstances other than post-conflict peacebuilding.
In the popular imagination, the prosecution of Thomas Lubanga Dyilo in
the DRC situation or that of Jean-Pierre Bemba in the Central African Republic
20. See Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future
Atrocities.?, 95 Au. J. lNr'L L. 7 (2001).
21. According to Article 13(b) of the Rome Statute, the Security Council can refer a situa-
tion to the ICC Prosecutor, which triggers ICC jurisdiction also for states that have not
ratified the Rome Statute or made an ad hoc declaration under Article 12(3).
2009 Are International Criminal Tribunals a Disincentive to Peace? 635
(CAR) situation may be the success stories of the ICC. Although a defendant
on trial offers a reassuring image, the situations in which no arrests have
been made may better demonstrate the ICC's preventive effect. The examples
discussed below provide guidance as to the impact tribunals can have on
ending atrocities even if they are unable to execute arrest warrants and where
leaders still in power may prolong or escalate atrocities to extort an amnesty
from ICC indictments. I have deliberately selected three ICC situations where
no perpetrators have been apprehended or where no indictments have been
issued: Côte d'Ivoire, a voluntary acceptance of ICC jurisdiction by a non-
state party according to Article 12(3) of the Rome Statute; northern Uganda, a
voluntary referral by a state party to the ICC; and the Darfur region of Sudan,
a compulsory Chapter VII Security Council referral.
Before undertaking the case studies, I must first address some prevalent
misconceptions that shape the peace versus justice debate. First, one cannot
assume that a “power reality” is an immutable state of affairs. While there
are obvious limitations on what can be achieved in any given situation, the
political realist argument is often invoked to justify inaction by the international
community. Appeasement of perpetrators or simple indifference to the victims
of atrocities is itself a “reality” constructed by those who have the means to
intervene but lack an incentive to do so. In Bosnia, the ICTY was effective
because robust UN peacekeeping and economic aid conditionality were used
to ensure that fugitives were apprehended or at least eliminated from the politi-
cal stage. By contrast, as we will see below, in Darfur, Sudanese cooperation
in the “war on terror,” energy security, and other geopolitical considerations
have ensured that the Security Council does not impose a meaningful cost on
Khartoum for its intransigence against the ICC. Thus, it is more appropriate
to describe these choices as “priorities” rather than “realities.”
Second, one cannot assume that if prosecutions are a potential disincen-
tive to peace, then impunity will necessarily be an incentive. Not only is such
an approach far from realistic, it is also often oblivious to the psychology
of political violence and the presumed need to negotiate from a position
of strength in order to end atrocities. The example of Foday Sankoh, the
murderous leader of the Revolutionary United Front (RUF) in Sierra Leone,
vividly demonstrates this point. In the negotiations to end Sierra Leone's civil
war, Sankoh requested an amnesty for the massive atrocities committed by
his soldiers in order to maintain his grip on power in rebel-held territories,
including control of diamond mines. Apparently, Sankoh interpreted the
amnesty granted to him and his combatants in the 1 999 Lomé Peace Accord,
which was brokered by the international community, 22 and a vice presidential
22. Peace Agreement Between tile Government of Sierra Leone and the Revolulionary United
Front of Sierra Leone (Lamé Peace Agreement), U.N. SCOR, U.N. Doc. 5/1999/777
(1999).
636 HUMAN RIGHTS QUARTERLY Vol. 31
appointment, as signs of weakness. He responded to these positive incentives
for a peace settlement by attempting to overthrow the government rather
than accepting a power-sharing agreement. Sankoh presumably asked himself
why he should stop the atrocities if such conduct had been rewarded with
a vice-presidential appointment and control of diamond mines. 23
A third misconception is that the preventive impact of tribunals must be
measured in a mechanistic “cause and effect” manner. Given the complexity
of factors that constitute a political reality, the best approach would be to
show that tribunals have an appreciable role in concert with other measures.
It is obvious, for instance, that the ICTY had greater preventive impact in
Bosnia than the ICC has had in Darfur because of the link between the
surrender of accused persons and punitive sanctions by the international
community. Thus, while it is difficult to locate an exact cause amidst multiple
factors, it may still be possible to broadly assess how tribunals can alter the
cost-benefit calculus of criminal conduct. While this analysis ultimately
depends on political variables external to the normal functioning of judicial
institutions, the selection of seemingly weak situations where the ICC exerts
little coercive power may be the best indicia of whether tribunals can have a
preventive impact. In the post-Nurernberg context, these cases may be most
relevant to dealing with the contention that absent victor's justice, tribunals
must remain hostage to power realities.
A. Prevention of Escalation: The Case of Côte d'lvoire
The most obvious (though overlooked) con tribution of tribunals to peace is
preventing atrocities before they escalate into genocidal or similar violence.
The potential constraint imposed by tribunals is significantly diminished
once limited conflict explodes into mass murder. Furthermore, justice in the
post-conflict peacebuilding phase assumes that massive victimization has
already occurred. Prevention of genocide rather than deterrence after the fact
is obviously the best policy. Because successful prevention is measured by
what does not happen, it is particularly difficult to assess. This recognition
is especially pertinent for tribunals that are often judged solely in terms of
defendants on trial (or at least fugitives on the run), rather than the looming
threat of indictments. Nonetheless, the example of the ICC's impact on the
civil war in Côte d'Ivoire is a compelling demonstration of how international
tribunals can help prevent human rights abuses from escalating into mass
murder merely by threats of prosecutions.
23. Sankoh was eventually arrested and, in 2003, indicted by the Prosecutor of the Special
Court for Sierra Leone. Prosecutor v. Sankoh, Case No. SCSL 03-02-f, fndictment (7 Mar.
2003).
3E:
2009 Are International Criminal Tribunals a Disincentive to Peace? 637
The shift in emphasis to prevention prior to mass atrocities is fundamental
to how the efficacy of tribunals is conceived. Many observers pointed to
the 1995 Srebrenica genocide as an example of the ICTY's failure to deter
perpetrators like Karad i and Mladi who had already been indicted. This
argument disregards the fact that at that point in the conflict, the “ethnic
cleansing” campaign had already reached its pinnacle. The most realistic op-
portunity for influencing the cost-benefit calculus of resorting to mass atroci-
ties as an instrument of power is before the full force of hate-mongering and
systematic violence has been unleashed. In the civil war in Côte d'lvoire, the
pre-genocidal dynamics of the conflict afforded an opportunity for substantial
preventive impact. In this instance, mere threats of ICC prosecutions may
have resulted in the termination of hate broadcasts on the state-sponsored
radio at a crucial point of escalating tensions. Although it may be difficult
to appreciate just how significant terminating hate speech on a radio station
can be to preventing mass murder, one should consider that incitement to
hatred by RTLM radio in Rwanda was crucial to the success of the 1 994
genocide. Given that 70 percent of the population was illiterate and lived
in remote locations, many used the radio as their sole source of informa-
tion. Without its steady stream of incendiary anti-Tutsi demonization and
incitement to genocide, it would have been far more difficult to mobilize
the masses required to exterminate close to one million Tutsis. One must
consider this precedent, including the important role of radio broadcasts
on the population and the dynamics of the civil war, when evaluating the
ICC's impact in Côte d'lvoire.
Since the end of President Felix Houphouet-Boigny's decades-long rule
in 1993, which coincided with an increasingly precarious economic situ-
ation, this former French colony has been in a difficult transitional period.
Those aspiring to succeed Houphouet-Boigny in the 1995 elections gathered
support according to ethno-regional origins, an important issue being the
approximately 25 percent of the population who were foreign workers,
predominantly from Burkina Faso, or citizens who were their descendants.
Political leaders and the media exploited the term ivoirité, which originally
referred to the common cultural identity of all Ivorians, in a nationalistic,
often xenophobic way, suggesting that only those from the southern region
and the capital Abidjan were true citizens, to the exclusion of immigrants
and citizens born in the north. 24 Moreover, a new constitutional provision
stipulated that a presidential candidate must be Ivorian-born of parents who
24. For more information on the concept ivoirité, -see JUDITH RUEFF, COTE o'lvoIRE: Lt FEU AU
PRE CARRE 22 (2004); THOMAS HOFNUNG, L cRIsE -EN COTE o'Ivoie: Dix lIEs POUR (OMPRENDRE 32
(2u05). See also INT' [ CRISIS GROUP, COTE n 'lvoIRF: No PEACE 14 SIGHT 3 (July 2004).
638 HUMAN RIGHTS QUARTERLY Vol. 31
were both born in Côte d'lvoire, thus excluding the influential “northerner”
Alassane Ouattara from the elections. 25
Tensions ultimately erupted into ethnic violence against Burkinabé and
other Muslim groups in the north, leading to armed conflict. 26 Coinciding
with the 2002—2003 escalation of hostilities between the government of
President LaLirent Gbagbo and rebel forces (called the “New Forces”) in
northern Côte d'lvoire, there was a dramatic increase in radio broadcasts
inciting hatred and violence against those deemed to be non-Ivorians. The
Global Policy Forum remarked: “The broadcasts reminded many observers
of Rwandan radio during the genocide of 1994, in which 800,000 people
were massacred in 100 days.” 27 As in Rwanda, these broadcasts significantly
influenced the perceptions of the conflict among the public in Côte d'lvoire,
resulting in widespread violence and looting by pro-government militias and
armed groups linked to the rebels with complete impLlnity. 28
In a January 2003 peace accord, the “government of reconciliation”
recognized the crucial role played by the media, condemned the incitement
to hatred and xenophobia, and committed itself to guaranteeing the neutrality
and independence of the public service. 29 The media, however, continued to
fuel politico-ethnic violence. Most notably, a November 2004 government
offensive against the New Forces was backed by a media campaign against
25. Moreover, Ouattara a high official of the International Monetary Fund in Washington,
D.C., did not fulfill the requirement of having lived in Côte d'lvoire for five years pre-
ceding the elections. See HOFNUNG, supra note at 33. Thi5 provision produced its desired
effect and the Supreme Court excluded Ouattara from the 2000 elections because of
his “dubious nationality.' See Id. at 34, 42. More than 200 people were killed due to
politico-ethnic violence in the run-up to the 2000 elections. See News Release, HRW,
Cole d'Ivoire: Abuses Threaten Run-Up to Elections (25 May 2006), available at htlp://
www.hrw.org/en/news/2006/05/23/c -te-d-ivoire-abuses-threaten-run -elections.
26. in 2001, Human Rights Watch had already reported that “Illeading government officials
in Côte d'ivoire have incited a violent xenophobia that is threatening to destabilize
the country.” HRW, THE NIw RACIsM (Aug. 2001), available at http://www.hrw.org/en-
reports/2001 /08/2 8/new-racism.
27. Brent Gregston, Rwanda Syndrome on the Ivory Coast, WoRLorREss.ORG, 30 Nov. 2004,
available at http://www.globaIpolicy.org/security/issues/ivory/2004/1 1 3orwandasyndrome.
hIm.
28. News Release, HRW, COte d'lvoire: Militias CommitAbuses with impunity (27 Nov. 2003),
available at http://www.hrw.org/en/news/2003/1 1/2 7/c-te-d-ivoire-mil itias-commit-abuses-
impunity. For more information on the crimes committed by pro-government militias,
the recruitment of Liberian children by the government, and the abuses committed by
the New Forces, including torture and summary execution, see News Release, HRW,
COte d'tvoire: Government Recruits Child Soldiers in Liberia (28 Oct. 2005), available at
http://www.lirw.org/en/news/2005/1 0/28/c-te-divoire-government-recruits-chi Id-soldiers-
liberia.
29. The text of the Linas-Marcoussis Accords and its annex are available in the French ver-
sion of the International Crisis Group report Côte d'lvoire: No Peace in S:ght. INT' l. CRISIS
Gsoup, COir o'Ivoipr: PAS CE PAIX EN vul 36 (July 2004).
2009 Are International Criminal Tribunals a Disincentive to Peace? 639
northerners, immigrants, and French cit izens. '° At the same time, opposition
newspapers, were shut down and the FM transmitters of international radio
stations, including those of Radio France Internationale (RFI) and the BBC,
were sabotaged by pro-government militias. 3 '
On 6 November 2004, an aerial attack by the Ivorian army on French
troops, which had intervened in Côte d'lvoire after the failed 2002 coup
against President Gbagbo and had helped secure the subsequent de facto
separation of the country, 32 killed nine French soldiers. Although France
had largely tried to remain neutral in the conflict, it responded by destroy-
ing Côte d'lvoire's air force. Immediately, hate messages were launched
by the government-controlled Radio Télévision Ivorienne (RTI) and Radio
Côtc d'lvoire (RCI), which called on the “patriots” to save the country from
the “French imperialists” and to “take over the streets of Abidjan.” 33 This
incitement mobilized a mob that attacked French civilians and pillaged and
destroyed the buildings of French institutions and businesses in Abidjan. 34
On 15 November 2004, the LIN Security Council adopted Resolution
1572, demanding that the government “stop all radio and television broad-
casting inciting hatred, intolerance and violence.” At the same time, the
UN Special Advisor on the Prevention of Genocide, Juan Méndez, issued a
statement recalling that the government has “an obligation to end impunity
and to curb public expressions of racial or religious hatred especially those
aimed at inciting violence.” He emphasized that “in the absence of effec-
tive action by courts of national jurisdiction, incitement to violence directed
against civilians or ethnic, religious or racial communities can be subject to
international action, including under the Rome Statute of the International
30. HRW, COUN FRY ON A PREcIPIcE: TIES PREUAsIOUS STArE (SF HuMAN RIGHTS ANI) CIVILIAN PRUTFCTION IN
COTS n'lvoug (May 2005), available at http://www.hrw.orglen/reports/2005/05/O3fcountry-
precipice-0.
31. Press Release, Reporters Without Borders, Abidjan State Media Mix Propaganda, Dis-
information and Incilement to Riot (10 Nov. 2004), available at http://www.rsf.org/
article.php3?id_article=1 1824. RFI, in particular, had been accused since 2002 by the
pro government media of supporting the rebels. See HOENUNG, supra note 24, at 81.
32. The intervention of some 4,000 French soldiers, called “Operation L,corne,” was given
a mandate ex-post by the Security Council in Resolution 1464 (20031, which authorized
the deployment of an additional 6,000 UN peacekeepers. For more information on the
role of the Licorne troops, see INT'L CRISIS GROUP, COis o'lvous : No PEACE IN SIGHT, SUpra
note 24, at 20; RUEFF, supra note 24, at 101.
33. See Press Release, Reporters Without Borders, supra note 31.
34. Human Rights Watch reported that “spurred on by broadcasts over state radio, pro-
government militias in Ivory Coast gathered their machetes and set off to attack French
civilians in the commercial capital, Abidjan.” News Release, HRW, Now, Protect Ivoirian
Civilians (16 Nov. 2004), available at http://www.hrw.orglen/news/2004/1 1/16/now-
protect-ivoirian-civilians.
640 HUMAN RIGHTS QUARTERLY Vol. 31
Criminal Court.” 35 Although Côte d'lvoire had not ratified the Rome Statute,
the government had made an ad hoc declaration under Article 12(3) in April
2003 recognizing the Court's jurisdiction. 36
Following this threat of potential ICC prosecution against President
Gbagbo, the situation changed. The Committee to Protect journalists ob-
serves that, initially, these xenophobic broadcasts incited tens of thousands
to take to the streets in a campaign of violence and looting. In other words,
the use of hate propaganda successfully incited mob violence, thus serving
as a highly effective instrument of political power. Pointing to how threats
of prosecution effectively altered the cost-benefit calculus, the Committee
observes that “ [ tjhe ‘hate' broadcasts stopped only after Juan Méndez, the
UN adviser on preventing genocide, warned that the situation could be
referred to the International Criminal Court.” 37 Although it is difficult to
ascertain the exact impact of the credible threat of ICC intervention, it is
wholly reasonable to conclude that it set into motion a chain of events that
significantly contributed to preventing the escalation of ethnic violence in
Côte d'lvoire. Earlier threats made in January 2003 by the French President
to hold Gbagbo accountable before the ICC for the crimes committed dur-
ing the 2002 crisis 38 must be considered less persuasive at that time due
to the nascent stage of the ICC. In November 2004, however, already two
situations, namely Uganda and the DRC, had been referred to the Court.
The fact that there was no investigation or arrest warrant in Côte d'Ivoire, let
alone a trial, was not a decisive factor. The genuine prospect of being held
accountable before an international tribunal was an incentive to stabilize a
volatile situation, thus serving as a tool in the pursuit of peace.
In assessing President Gbagbo's reaction, it is important to situate the
specific example of Côte d'lvoire in the broader context of general deter-
rence. In light of the precedents of Bosnia and Liberia, where international
forces arrested war criminals and transferred them to the ICTY and the
Special Court for Sierra Leone respectively, the presence of French troops
35. Juan E. Méndez, United Nations, Statement by the Special Adviser on the Prevention of
Genocide (15 Nov. 2004), available at http://www.un.org/News/dh/infocus/westafrica!
mendez-15nov2004.htm. Human rights advocates openly called for a Security council
referral of the situation in cote d'lvoire to the iCC Prosecutor. See FIDH, FIDH Calls
the Security Council to Refer the Situation in Côte d'lvoire to the International Criminal
Court, 9 Nov. 2004, available at http://www.uidh.org/FIDH-cal Is-the-Security-Council-
to.
36. Republic of Côte d'lvoire, Declaration Accepting the Jurisdiction of the interna-
tional Criminal Court, signed 18 Apr. 2003, available at http://www.icc-cpi.intINR/
rdonlyres/74EEE201 -OFED-4481 -95 D4-C807 10871 02C12 79844/ICDEENG .pdf. See also
Schabas, supra note 17, at 39. The declaration apparently aimed at bringing the rebels
to justice.
37. Committee to Protect Journalists, Attacks on the Press 2004: Ivory Coast, 14 Mar. 2005,
available at http:I/www.cpj.org/attackso4/africao4/ivory.html.
38. See HOINUNG, supra note 24, at 73.
.1
2009 Are International Criminal Tribunals a Disincentive to Peace? 641
and other international pressures clearly played an important role in how
the government perceived the threat of ICC intervention. The progressive
internalization of accountability in the culture of international relations also
shapes such political perceptions. By 2004, the precedents of the ICTY and
ICTR and the establishment of the ICC had eroded a prevalent culture of
impunity and gradually had shifted the boundaries of power and legitimacy.
The theory of general deterrence assumes that the threat of punishment is
intended to discourage “deviance” by internalizing and reinforcing the exist-
ing mores of society. In this light, the most significant effect of tribunals may
be their ability to instill inhibitions against mass atrocities and to thereby
alter the very conception of sustainable power. Accordingly, the threat of
ICC prosecutions simply may have reminded the Ivorian political leaders of
the ever more important link between lawful conduct and political survival
in the post-ICC era.
B. Defeat Through Isolation: The Case of the lord's Resistance
Army in Uganda
A significant preventive impact of tribunals is how international criminal jus-
tice shapes incentives to cut support for military forces responsible for atroci-
ties. The judicial romantics may overlook the fact that military confrontation
may be the most immediate way to prevent atrocities. It is an uncomfortable
realization for proponents of justice that after-the-fact lengthy court proceed-
ings are hardly reassuring to unarmed civilians facing the impending threat
of atrocities by notorious militia. In turn, the political realists may overlook
the fact that leaders facing military defeat or loss of power are particularly
inclined to request amnesties. In other words, conditioning a peace agree-
ment on an amnesty may itself be the result of a weak bargaining position.
Unlike the Nuremberg Tribunal, the ICC does not have a standing army to
defeat enemies and occupy countries. The LRA case demonstrates, however,
that in certain cases the tribunals' stigmatization of those responsible for mass
atrocities can result in international isolation, thereby eroding their political
influence and the capabilities of military forces responsible for atrocities.
The debate on whether LRA leaders should be offered an amnesty in
exchange for peace disregards the history of this rebel movement and why
it has come to the negotiating table with such enthusiasm, only to revert
to its habitual violence and cruelty. Since the LRA's inception in 1986, and
despite the horrific scale of its atrocities in Acholiland in northern Uganda, 39
39. For the earlier history of northern Uganda, including the construction of the Acholi as a
distinct population group in the 19th and early 20th century, see AtLJN, supra note 16,
at 25—37.
642 HUMAN RIGHTS QUARTERLY Vol. 31
the international community has failed to take any decisive steps to help
Uganda defeat this ruthless insurgency. The LRA forcibly recruited tens of
thousands of children, terrorized them to commit atrocities against their
own parents and communities, and instilled a reign of terror by attacking
towns and villages and amputating limbs as a signature punishment for
those suspected of siding with the government. 40 Although the LRA claims
to represent the grievances of the northern Acholi against the government of
President Museverti, almost all of its victims are Acholi. Instead of confront-
ing the LRA, the UN and donor states pursued a policy of pressuring the
government to negotiate with LRA leader Joseph Kony—a self-proclaimed
prophet whose only cognizable political demand is to establish a state ruled
by the Ten Commandments.
During the Sudanese north-south civil war in the 1980s and 1990s,
Khartoum supported the LRA's efforts to destabilize Uganda in exchange for
its support of the Sudan People's Liberation Army (SPLA) insurgents. 41 With
the progressive consolidation of the north-south peace process in 2003, the
LRA became less valuable to Sudan. However, the LRA was still sufficiently
useful for Sudan's influence in the region that it could justify continued use
of bases in Sudanese territory from which to launch attacks against civil-
ians in Uganda. The LRA's ability to retreat into Sudan beyond the reach
of Ugandan military forces was a crucial element of its military success.
Despite several agreements with the Ugandan government, in which the
Sudanese government feigned willingness to stop sponsoring and to disarm
and disband the LRA, 42 the situation did not substantially change until the
2003 ICC referral by the Ugandan government. 43 At this critical juncture,
the ICC's intervention increased the cost incurred by Sudan for harboring
the LRA, thus setting into motion a chain of events that resulted in the LRA
40. For more information on the atrocities committed by the LRA, see Report of the United
Nations High Commissioner for Human Rights on the Mission Undertaken by her of-
fice to Assess the Situation on the Ground with Regard to the Abduction of Children
from Northern Uganda. U.N. ESCOR, Comm'n on Hum. Rts., 58th Sess., 15—19,
U.N. Doc. E/CN.4/2002/86 (2001); HRW, STOLEN CHILDREN: ABDUCTION AND RECRUITMENT IN
NORTHERN UGANDA (Mar. 2003), available at http:/Iwww.hrw.org/reports/2003/ugandao3o3/
ugandao4o3.pdf; Int'l Crisis Group, Conflict History: Uganda, available at http://www.
crisisgroup.orglhome/index.cfm?id=2346&I=1; Press Release, Security Council, Security
Council Presidential Statement Demands Release of Women, Children by Lord's Resistance
Army, Expeditious Conclusion of Peace Process, U.N. Doc. SC/8869 (16 Nov. 2006).
41. For an analysis of the inter-relations.between the conflicts in southern Sudan, northern
Uganda, and Dafur, see John Prendergast, Resoh ing the Three Headed War from Hell
in Southern Sudan, Northern Uganda, and Darfur (Feb. 2005), available at http://www.
wilsoncenter.org/events/docsfOP OO3.pdf. I
42. See Report of the United Nations High Commissioner for Human Rights, supra note 40,
at I J 32(d), 33(a).
43. Press Release, Int'l Criminal Court, President of Uganda Refers Situation Concerning
the Lord's Resistance Army (LRA) to the ICC (29 Jan. 2004).
2009 Are International Criminal Tribunals a Disincentive to Peace? 643
losing its ability to launch offensive operations, which led to a sharp drop
in violence in Northern Uganda and the consequent willingness of Joseph
Kony to negotiate a peace settlement.
Despite a complex range of factors, there is a noticeable link between the
ICC's exercise of jurisdiction over the case and the LRA's demise. In November
2003, immediately prior to the referral of the situation to the ICC, the UN
Office for the Coordination of Humanitarian Affairs (OCHA) reported that “the
humanitarian situation in Uganda continued to deteriorate,” “(t]he outlook
for 2004 does not look promising due to the expansion of [ LRAJ attacks,” the
LRA “continues to use its bases in southern Sudan to launch its operations,”
and “the number of internally displaced persons . . . has reached a figure of
over one million.” 44 Given the high profile of this situation as the first one
before the ICC, Uganda's referral made it more difficult for Sudan to continue
supporting the LRA. With the ICC stigmatizing the LRA leadership, Sudan
was pressured to adopt a March 2004 Protocol—only four months after the
ICC referral—allowing Ugandan forces to eliminate LRA bases in southern
Sudan. 45 This move made the International Crisis Group conclude that “ [ ti
he ICC has already had a positive impact on the peace process by sobering
the LRA and influencing Khartoum to reduce support.” 4 1 ' By November 2004,
contrary to its bleak prognosis a year earlier, OCHA reported:
The weakening of the LRA in southern Sudan and northern Uganda by the
Uganclan army, the apparent lack of control by the leader of the LRA over his
troops in northern Uganda and the numerous defections of LRA commanders
and foot soldiers since Apri,I 2004 have brought . . . a ray of hope that the end
of this long ordeal is getting closer. 47
The report went on to conclude:
Since July [ 2004L there has been a marked improvement in the general se-
curity situation following high rates of LRA desertions . . . . LRA attacks on
camps became less frequent, creating a feeling, especially among government
officials, that the LRA had been significantly weakened and that the war was
about to end. 45
44. UN OFFICE FOR THE COORDINATION OF HLIMANIIARIAN AFFAIRS, CONSOLIDATED APPLALS PROTEST: UGANDA
2004, all (Nov. 2003).
45. The operation was called “Operation Iron Fist II.” For a brief discussion of this operation,
see HRW, UPROOTED AND FORGOTTEN: IMI'UNITY AND HUMAN RIGHTS ARUSES IN NORTHERN UGANDA
(Sept. 2005).
46. INT'L CRISIS Group, Shock Therapy for Northern Uganda's Peace Process, Africa Brief-
ing No. 23, 11 Apr. 2005, available a http://www.crisisgroup.org/home/index.
cfm?id=3366&l=1.
47. UN OFFICE FOR THE COORDINATION OP HUMANITARIAN AFFAIRS, CONSOLIDATED APTEALS PROCESS: UGANDA
2005, at 1 (Nov. 2004).
48. Id. at 5.
4.
644 HUMAN RIGHTS QUARTERLY Vol. 31
In the months that followed, LRA leader Joseph Kony retreated into the
DRC and, attempted to restore discipline within his depleted ranks. On 2
October 2007, Kony killed his second in command, Vincent Otti, because
of suspicion that Otti might betray him in a deal with Uganda. 49 Under
these circumstances, Kony, with the conditional support of Uganda and
several key donor states, insisted on an amnesty from ICC arrest warrants
as a precondition to a peace settlement. By then, the LRA had been so
weakened and divided that it no longer posed a serious threat to Uganda,
though itcontinued to commit atrocities in the DRC. 5 ° Furthermore, it soon
became apparent that Kony had simply used the negotiations as a ploy
to buy time so he could rehabilitate the LRA. On 23 July 2008, Ugandan
General Aronda Nyakairima explained that the LRA was amassing wealth
to purchase more weapons. 5
Absent the political pressure arising from the ICC referral, Sudan may
have been less willing to allow for the expeditious elimination by Ugandan
forces of LRA bases in the south. The view that ICC arrest warrants were
an impediment to peace emerged only after the LRA had been significantly
weakened and atrocities in Uganda had ended. 52 Kony's vulnerability forced
him to demand an amnesty, but even then he could not be trusted to negoti-
ate peace in good faith.
One of the issues impacting national reconciliation in Uganda is
whether the ICC undermines traditional justice rituals proposed by some
Acholi leaders. Some argue that The Hague is too remote to impact Acho-
liland, the ICC is an elitist institution out of touch with local realities, and
Western-style trials are not the only way to achieve justice in a world with
pluralistic legal traditions. 53 The fact that some northern leaders distrust
President Museveni's government for historical reasons also has cast doubt
on the role of the ICC as conspiracy theories abound that the referral was
49. See Otti “Executed by Uganda Rebels,” BBC NEWS, 21 Dec. 2007, available at http://
news.bbc.co.uk/2/hi/aIrica/71 56284.stm.
- 50. These acts were particularly retaliation for “Operation Lighting Thunder,” a joint operation
launched in December 2008 by Uganda, the DRc, and South Sudan to defeat the LRA
and arrest its leaders. The LRA retaliated by killing over 500 civilians. News Release,
HRW, DR Congo: LRA Slaughters 620 in “Christmas Massacres” (17 Jan. 2009), avail-
able at http://www.hrw.org/en/news/2009/01/1 7/dr-congo-Ira-slaughters-620 -christmas-
massacres,
51. joshua Kato, Slop LRA Noss Saysflronda, N [ wVrsIoN (Kampala), 22 July 2008.
52. Local peace initiatives, such as the Acholi Religious Leaders Peace Initiative have sup-
ported the demands for amnesty and have condemned the “interference” of the ICC.
See Adam Branch, International Justice, Local Injustice, DISSENT, Summer 2004, at 22.
For further criticism of the icc intervention in the situation of northern Uganda, see
also Adam Branch, Uganda's Civil War and the Politics of ICC Intervention, 21 ETHICS &
INT'L Air. 179 (2007),
53. Orfi traditional forms of justice in Northern Uganda, such as mato oput, see Ai.i EN, supra
note 16, at 165—68.
H
2009 Are International Criminal Tribunals a Disincentive to Peace? 645
actually intended to prolong the war in Acholiland. While elitist institutions
must be sensitive to local demands and avoid a neo-colonial approach to
justice, the demonization of the ICC as a foreign imposition is unwarranted.
It cannot be overlooked that traditional justice mechanisms would not have
succeeded in pressuring Sudan in the same way as the imprimatur of the
ICC. Furthermore, when the ICTY was established, the common refrain was
that it favored European over African victims. The ICC's entanglement with
Africa, reflecting the worst atrocities within the Court's jurisdiction, should be
viewed as a welcome departure from decades of neglect. In the LRA cases
in particular, the focus of the ICC played a role in ending the war exactly
because it drew attention to a situation that the international community
had disregarded for almost two decades.
Criticism of the ICC also ignores the fact that it issued arrest warrants
only against the top five LRA leaders, of whom only three are still alive.
This means that all other LRA members, many of whom are victimized child
soldiers, can benefit from amnesties or traditional justice mechanisms. From
the viewpoint of post-conflict peacebuilding, nothing stands in the way of
a local reckoning with the past. From the viewpoint of peace negotiations,
Kony's duplicity and bad faith has amply demonstrated the false premise
that an ICC amnesty is all that stands in the way of a peace agreement.
Rather, it was the involvement of the ICC that generated the strenuous but
indispensable negotiations between the Ugandan government and the LRA
on how to deliver justice to the victims of the conflict. Without the ICC
threat, it is unlikely that the issue of individual accountability would have
been addressed seriously or that the LRA leaders would have accepted any-
thing like the Agreement on Accountability and Reconciliation. Its annex,
signed in early 2008, provides that “ [ a] special division of the High Court
of Uganda shall be established to try individuals who are alleged to have
committed serious crimes during the conflict.” 54 While this agreement seems
to be directed at challenging ICC jurisdiction and also questions Kampala's
support for the ICC, 55 the recent willingness to sincerely negotiate how to
deliver justice to the Acholi people, whether domestically or in The Hague,
cannot be overemphasized. Possible ICC proceedings had a similar, positive
54. Annexure to the Agreement on Accountability and Reconciliation (19 Feb. 2008), ¶ 7,
available at http://www.iccnow.org/documents/Annexure_to_agreement_on_Account-
ability_signed_today.pdl. However, after the conclusion of this agreement, the Ugandan
President reportedly promised the LRA leaders that instead of trials, a “traditional blood
settlement mechanism” would be used. AMNESTY INT'L, UGANDA ACREEMENT AND ANNEX ON
ACCOUNTABIUTY AND RECONcILIATION FAILS SHORT 01 A COMPREHENSIVE PLAN TO END IMI'uuIry 8 (Mar.
2008), available at http://www.amnesty.org/en/library/info/AFR59/001/2008.
55. The Ugandan government also committed itself to requesting the Security Council to
defer the ICC investigations and prosecutions in Northern Uganda. Security Council
Report, Uganda/LRA: Update Report No. 1, 11 Apr. 2008, available at http://www.
securitycounci I report.org/site/c.gIKWLeMTIsG/b.401 8489/.
I
646 HUMAN RIGHTS QUARTERlY Vol. 31
impact on the delivery of justice in Kenya with respect to investigating the
January 2008 post-election violence. A commission of inquiry recommended
the establishment of a special, internationalized tribunal to investigate and
prosecute those most responsible for the violence and announced that it
would hand a list of the chief suspects to the ICC Prosecutor if a tribunal
was not set up quickly. 56
However promising the delivery of local justice may be to the interests
of victimized communities, such a grassroots, victim-centered approach must
be balanced against broader implications for Africa and the international
community. The Acholi people of Northern Uganda are clearly not the only
constituencies of this situation before the ICC. 57 While every effort should
be made to ensure local empowerment and a cessation of war, the effect
of impunity in a situation already before the ICC would have far-reaching
consequences elsewhere, especially in Africa. Even a superficial observer
would recognize that an amnesty precedent for Joseph Kony would have
catastrophic consequences for the ICC's credibility in the Darfur situation
where leaders such as President Bashir of Sudan are eager to find a pretext
to escape liability. Although it may be desirable to take into account the
concerns of local communities, the constituency of internai:ional criminal
justice extends far beyond this local level.
C. Stigmatization Is Better than Nothing: The Case of Darfur
The unwillingness of the international community to effectively confront
Sudan's genocide by attrition in Darfur is a conspicuous failure. Absent
economic sanctions, no-fly zones, and an effective UN-African Union (AU)
peacekeeping force with a robust mandate, Sudan's reign of terror has con-
tinued unabated. Moral condemnation intended for public consumption has
masked a policy of appeasement motivated by Security Council members'
geopolitical concerns such as the “war on terror,” energy security, and the
arms trade. China has invested heavily in the Sudanese oil industry and is,
56. For more information, see News Release, HRW, Establishing a Special Tribunal for
Kenya and, the Role of the International criminal Court (25 Mar. 2009), available at
http://www.hrw.org/en/news/2009/03/2 5/establishing-special-tribunal-kenya-and-role-
international-criminal-court. See also EU in Kenya Poll Tribunal Threat, BBC Niws, 18
Nov. 2008, available at http://news.bbc.co.uk/gofpr/fr/-/2/hi/aIrica/773601 1 .strn; Luis
Moreno-Ocampo, Chief Prosecutor, ICC, Address to the Assembly of States Parties 2 (14
Nov. 2008), available at http://www2 .icc-cpi.intINR/rdonlyres/5OF900FA-33A0-48B3-
942 E-4CFF88CA3A2 7/0/ICCASPASP7StatementProsecutor.pdf.
57. For a discUssion on the different constituencies in international criminal law, see Fré-
déric Mégret, International Prosecutors: Acc2untabil ity and Ethics 29—37 (Leuven Ctr.
or Global Governance Studies, Working Paper No. 18, 2008), . s'aiIabIe athttp://papers.
ssrn.com/sol3/papers.cfm?abstract_id=1 313691
2009 Are International Criminal Tribunals a Disincentive to Peace? 647
together with Russia, the most important supplier country of military equip-
ment to Sudan , 58 Antiterrorism collaboration with Khartoum intelligence also
has become increasingly valuable for the United States in gathering infor-
mation about al-Qaeda and Iraqi insurgent groups, 59 with the Department
of State labeling the Sudanese government “a strong partner in the War on
Terror .”° This alliance explains the rather ambiguous role the United States
has played in condemning—but not seriously challenging—Khartoum for its
Darfur campaign. Moreover, no Western government wanted to endanger
the sensitive negotiations leading to the 2005 Comprehensive Peace Agree-
ment, which ended the decades-long war between northern and southern
Sudan. In the words of an analyst, “Khartoum effectively held the carrot of
peace in front of the noses of the international community while it wielded
the stick in Darfur.” 5 '
This political context has sent the message to Sudan's leaders that mass
murder of groups deemed to be threats to the absolute power of Khartoum's
ruling clans is an effective policy. Against this backdrop, the Security Coun-
cil's referral of the Darfur situation to the ICC in 200562 is a pretence of
decisive action rather than a genuine effort to end the ongoing violence,
especially given the Security Council's subsequent lack of pressure on Su-
dan to cooperate with the ICC and surrender accused persons. Despite the
Prosecutor's periodic reports to the Security Council on Khartoum's non-
cooperation, no concerted action has been taken. 52 The arrest warrant against
Sudan's President Hassan al-Bashir has been criticized as judicial folly and
58. On the alleged use of these weapons in the Darfur conflict, see AMNIISTS INT'L, SUDAN:
ARMS CONTINUING 10 Fun. SERIOUS HUMAN RIGHTS VIOLATIONS IN DARIus (May 2007), available
at http://www.amnesty.orglfr/libraryfinfo/AFR54/01 9/2007/en.
59. Greg Miller & Josh Meyer, U.S. Relies on Sudan Despite condemning It, L.A. TIMLA, 11
Jun. 2007, at Al See also Ken Silverstein, Official Pariah Sudan Valuable to America c
War on Terrorism, L.A. TINIER, 29 Apr. 2005, at Al; Scott Shane, G.I.A. Role in Visit of
Sudan Intelligence C 'liief Causes Dispute Within Administration, N.Y. TIMI:S, 18 Jun. 2005,
at A7; Ewen MacAski II, CIA Recruits Sudanese to Infiltrate ,4rab Jiljadi Groups, GUARDIAN,
12 Jun. 2007, available at http://www.guardian.co.uk/world/2007/jun/1 2/usa.israel; Rn
PURLIcA, THE: DARFUR RESISTANCE: WI-,O THEY A n, VVHAT THEY WANT, AND ‘INHAT Ti- s' NEED 10 HEir
CREATE A NEW SuDAN 28 (2006).
60; Ornicn OF THE COORDINATOR FOR COUNTERTFRRORISM, U.S. DEPT OF STATE, COUNTRY REPOIRTS ON TERROR-
SM 2006, ch. 3 (30 Apr. 2007), available at http://www.state.gov/s/ct/rls/cri/2006/82736.
htm.
61. Prendergast, supra note 41, at 2. See also GERARD PRUNIFR, DARFUR: THE AMIRIGUOUS GENO-
CIDE 122 (2005); JULIE FLINT & ALEX DE WAAE, DARTUR: A SHORT HISTORY OF A LONG WAR 128
(2005).
62. Referring the Situation in Darfur Since 1 July 2002 to the Prosecutor 01 the International
Criminal Court, adopted3l Mar. 2005, S.C. 1 Res. 1593, U.N. SCOR, 60th Sess., U.N.
Doc. S/RES/1593 (2005).
63. Only one presidential statement was issued after the June 2008 briefing of the Prosecu-
tor, in which the Security Council urged the' government of Sudan to cooperate with
the Court. Statement by the President of the Skurity Council, U.N. SCOR, 59 12th mtg.,
U.N. Doc. SIPRST/2008/21 2008).
&
648 HUMAN RIGHTS QUARTERlY Vol. 31
an impediment to peace negotiations, 64 despite the mandate entrusted to
the ICC Prosecutor by the UN Security Council. But even in this seemingly
impossible situation, there is evidence to suggest that tribunals can help
prevent atrocities by creating pressures and exacerbating internal divisions
among perpetrators as they attempt to use each other as scapegoats. There
are indications that, following the ICC's investigation, accountability has
become an important factor in Khartoum's political calculus. The pressures
to assign blame to others has created appreciable fractures in Khartoum's
alliance with the notorious Janjaweed militia and increased incentives to
negotiate a peace settlement.
On 27 April 2007, the ICC issued arrest warrants against Janjaweed
militia leader Ali Kushayb and Sudan's Minister of Humanitarian Affairs,
Ahmed Harun. 65 On 1 4 july 2008, the ICC Prosecutor requested an arrest
warrant against Bashir, 66 which was issued on 4 March 2009.67 As an immedi-
ate reaction to the arrest warrant, the Sudanese government expelled more
than a dozen humanitarian aid organizations, leaving more than one million
people without access to food, water, and healthcare services. 68 Despite the
fact that the issuance of the arrest warrant and a strenuous reaction from
the government had been widely expected, 69 Western governments seemed
staggered and were criticized for not anticipating Khartoum's move. 70 This
strategy of presenting the arrest warrant as a cause of further suffering of
Darfuris—under the pretext that humanitarian organizations had provided the
ICC Prosecutor with information 7 —has proven to be successful to a certain
64. See, e.g., Darfur Mediator Says Bashir Warrant Imperils fl/ks, RWT R5, 26 Mar. 2009.
65. Prosecutor v. Harun, Decision on the Prosecution Application Under Article 58(7) of J
the Statute, ICC-02/05-01/07-1 (27 Apr. 2007).
65. Situation in Darfur, Sudan, Public Redacted Version of Prosecution's Application Under
Article 58 Filed on 14 july 2008, ICC-02/05-157 (12 Sept. 2008).
67. Prosecutor v. Al Bashir, Warrant of Arrest for Oniar Hassan Ahmad Al Bashir, ICC-02/05-
01/09-1 (4 Mar. 2009). The Pre-Trial Chamber confirmed the charges of war crimes
and crimes against humanity but did not follow the Prosecutor's view that there were
reasonable grounds to believe that Bashir had acted with genocidal intent.
68. UN Office for the Coordination of Humanitarian Affairs, Sudan: Situation Report #2 (13
Mar. 2009); Darfur: UN-African Peacekeeper Shot, as Concern Grows Over Humanitar-
ian Aid, UN Nrws Car., 10 Mar. 2009.
69. Already after the Prosecutor's application, Sudan had denounced the ICC and threatened
that it could no longer guarantee the safety of UN-AU peacekeepers in the Darfur if an
arrest warrant was issued. See, e.g., Sara Darehshori & Suliman Baldo, Sudan. Justice
and Peace, HRW, 16 july 2008, available at http://www.hrw.org/en/news/2008/07/15/
sudan-justice-and-peace.
70. Eric Reeves, Khartoum's Expulsion of Humanitarian Organizations, SUDAN TRIUUNE, 26
Mar. 2009, available at http://www.sudantribune.com/spip.php?article3O643.
71. The Prosecuter has refuted this allegation. See ICC Prosecutor Says i-fe Received “Zero”
Information from NGO's in Sudan, SUDAN TRIBUNF, 21 Mar. 2009, available at http://www.
sudantribune.com/spip.php?article3O580. Reportedly the Sudanese government only
s 'aited for a chance to expel the organizations. See l.ynsey Addarlo & Lydia Polgreen,
Aid Groups' Expulsion, Fears of More Misery, NX TIMEs, 23 Mar. 2009, at A6.
I t
2009 Are International Criminal Tribunals a Disincentive to Peace? 649
extent. Numerous members of the African Union and the Arab League harshly
criticized the arrest warrant, including Libya's leader Muammar Gaddafi, who
decried the ICC as a “new form of world terrorism.” 72 Moreover, Western
governments felt obliged to balance support for the Court against concern
for displaced populations relying on the assistance of humanitarian agencies,
thus strengthening Bashir's bargaining position. Ignoring the arrest warrant
and Sudan's obligation to cooperate with the Court under Security Council
Resolution 1593, the Security Council only urged the Sudanese government
to reverse the expulsion in a non-binding statement. 73 Sudan also enlisted
the support of the African Union and Arab League in calling for a Security
Council deferral of the case under Article 16 of the Rome Statute on the
grounds that it was an impediment to the peace process. So far, however,
Western veto powers in the Security Council have blocked such a deferral,
and support from African Union leaders for Bashir is clearly not as solid
and unanimous as portrayed by Khartoum. In the context of Bashir's visit to
a summit in Ethiopia, for instance, an African diplomat spoke of “an ironic
show of solidarity” by African leaders who fear that if Bashir is sent to The
Hague, they could be next. 74
Despite this overt posture of defiance, Sudan has taken considerable
steps to relieve pressure on its senior leader. In October 2005, the Janjaweed
leader Ali Kushayb was arrested to face prosecution before Sudan's own na-
tional courts. There is little doubt that he was being used as a scapegoat for
the Darfur atrocities in order to preempt the ICC's exercise of jurisdiction, a
fact noted by the international community and the media. 75 Several months
earlier, in March 2007, Time reported: “Cracks are beginning to appear in the
ranks of Darfur's feared Janjaweed militia” as a result of “fear that the Sudan
government may betray Janjaweed commanders to the [ ICC ]. ” 7 ” A Darfur
rebel leader remarked, “Khartoum hired the Janjaweed to kill their brother
Darfurians. Now the Janjaweed have found out they were deceived—and
they suspect the government will sell them out to the I.C.C. We are expecting
the' number of defectors to increase by the day.” 77 And while Bashir has been
72. Sudan Leader in Qatar for Summit, BBC N,ws, 29 Mar. 2009, available at http:f/riews.
bbc.co.uk/2/hi/africa/7970892 .stm.
73. Patrick Worsnip, Darfur Mediator Says Bashir Warrant Imperils Talks, REUTERS, 26 Mar.
2009.
74. Peter Heinlein, Sudan Gives Sudan's Bashira Warm Welcome, VGA News, 21 Apr. 2009,
available at http://www.voanews.com/english/2009-04.2 1 .voa2 5 .cfm.
75. The New York Times observed that this “move is widely being interpreted as a way for
Sudan to improve its image abroad and try to head off the possible genocide prosecution
of the country's president, Omar Hassan al-Bashir, in the International Criminal Court.”
Jeffrey Gettlemari, Sudan Arrests Militia Chief Facing Trial, N.Y. Tiers, 13 Oct. 2008, at
A9.
76. Alex Perry, Defections in Darfur?, TIME, 21 Mar. 2007, at 42—43.
77. Id. at 43.
650 HUMAN RIGHTS QUARTERLY Vol. 31
trying to portray himself as a national hero defying neo-colonialist attempts
in the form of judicial intervention, support for him is far from unanimous )
in Sudan. n particular, Darfuris have been most outspoken in supporting
Bashir's surrender, arguing that “the arrest of al-Bashir will bring freedom
to people of Sudan. . . . Sudan will enter a new period.” 78
Beyond fractures between the government and the Janjaweed, the loom-
ing threat of ICC arrest warrants has also created an incentive at least to feign
a willingness to end the war in an apparent attempt to extract an amnesty
for good behavior. In November 2008, Bashir announced a ceasefire with
the Darfur rebels. Although its significance should not be overemphasized
given that a series of previous peace agreements has failed, this ceasefire
was directly linked to the imminent arrest warrant by the government itself.
Based on local sources, the BBC reported: “the government hopes this plan
will be enough to convince the international community to defer the case
against Mr. Bashir.” Indeed, Sudan's Foreign Minister asserted: “If we come
up with the clear roadmap for Darfur, then I think we can have the moral
authority to begin to ask . . . whether they could defer the decision by the
ICC. ” 79 Although Bashir has traveled to several non-state parties to the ICC
in clear defiance of the arrest warrant, he is obviously concerned about
appearing in a good light and has even promised justice to the victims in :1
Darfur. One month after the issuance of the arrest warrant, he stated that
once reconciliation was achieved, the crimes committed in Darfur would
be investigated and prosecuted by the Sudanese authorities. 80 Clearly, the
issue of justice and accountability is on the table and is being discussed
more seriously in Sudan. This trend is illustrated by the proposal of the
leader of the opposition Umma party, Sadiq al-Mahdi, to establish a hybrid
court consisting of Arab, African, and Sudanese judges, 81 while the most
prominent opposition leader, Hassan Al-Turabi from the Popular Congress
Party, was detained for two months after openly calling on Bashir to sur-
render to the Court. 82
The political posturing by Sudan to deflect attention from President
Bashir's ICC indictment should not be overestimated. Standing alone, the ICC
can embarrass and isolate the Sudanese leadership and exact a minimal cost,
78. See HRW, Voices from Sudan, 4 Mar. 2009, available at http://www.hrw.orWen/
news/2 009/03/04/voices-sudan ?print.
79. Sudan Declares Darfur Ceasefire, BBC Niws, 12 Nov. 2008, available at http://news.
bbc.co.uk/2/hi/africa/7724220 .stm.
80. Sudan President Says Reconciliation to Precede Justice, SUDAN TRIBUNE, 8 Apr. 2009,
available at http://sudantribune.com/s i .php?article3Q804
81. Sudan Ex-PM Proposes Hybrid Court to Try Darfur Suspects, SUDAN TRIBUNE, 28 Mar. 2009,
available at http:I/www.sudantribune.4drn/spip.php?articIe3OC67.
82. Sudan's Turahi Says Position Unchan8ed on Bashir and/CC, SUOAN TRIBUNE, 10 Mar. 2009,
available at http://www.sudantribune.com/spip.php?arlic(e3045 1.
2009 Are International Criminal Tribunals a Disincentive to Peace? 651
but it cannot radically alter the political equation in Darfur. While much of
the ethnic cleansing is a fait accompli, atrocities against civilians continue
in the face of international indifference to the victims and diffidence to those
in power. 3 In view of the facts however, it is difficult to conclude, as some
have suggested, that the ICC's intervention is exacerbating the atrocities in
Darfur by cornering President Bashir and thus providing a disincentive to
peace. While there is ostensible solidarity with him in defiance to the ICC,
there is no telling how his international stigmatization and falling political
fortunes may be used by competitors to usurp his authority in the long
run. Bashir's dedicated efforts to distract the international community from
focusing on the arrest warrant reveals his true concerns about the elections
scheduled for early 201 0. If anything, his defiant statements underscore the
tremendous importance that lie attaches to the ICC arrest warrant against
him. A notable instance is his statement to the April 2009 African Union
summit in Ethiopia where he emphasized:
We went to this summit to show those who said we couldn't travel outside Su-
dan that we can travel outside Sudan. . . Unlike what people might think, the
issued arrest warrant has rather strengthened our bond with countries of Ethel
African Union (AU), Arab league and also with international organizations.
It also has strengthened the unity of the Sudanese people. 5 '
At the very least, President Bashir has understood that the arrest warrant
has significantly undermined his standing as an international statesman,
which could be detrimental to his political fortunes within Sudan itself,
where many opponents may seize on his isolation to advance their own
ambitions and interests.
Even if it is not possible to demonstrate with any certainty that the ICC
has had an effect on prevenl:ing atrocities in the Darfur, it cannot be said
that the situation has somehow been exacerbated as a result, It beguiles
the imagination to accept the argument that after years of massive atrocities
against civilians, all that stands in the way of peace is the demand for what
has thus far amounted to symbolic justice. Against a backdrop of shocking
indifference to the “ethnic cleansing” campaign in the Darfur, it is difficult
to see how this assertion is a realistic assessment of a dire situation in which
the ICC arrest warrants appear to be the only glimmer of hope. The proposi-
tion that Khartoum would improve its behavior absent ICC indictments is at
83 See e g Report at the Secretiry Genera! on th!et Dep!oyment of the Afr,cin Un,on Un,ted
Nations Hybrid Operation in Darfur, U.N. SCOR, 15, U.N. DoC. S/2008/443 (7 july
2008); Report of the Secretary-Genera! on the L eployrnent of the African-Union-United
Nations Hybrid Operation in Darfur, U.N. SCOR, 33, U.N. Doc. S/2008/781 (12 Dec.
2008). ft
84. Sudan's PresidentArrives in EthiopiaAmid Western Boycott, SUDAN TRIE3UNL, 22 Apr. 2009,
available at http://sudanribune.coni/spip.php?articIe3O957.
& . a
652 HUMAN RIGHTS QUARTERLY Vol. 31 4)
best utterly naïve and at worst a cynical appeasement of power motivated
by questionable political ends. The stigmatization of President Bashir is
surely the very least that the international community can do in the face of
such abominations.
V. CONCLUDING REMARKS: TOWARDS A NEW JUDICIAL REALISM
The experience of the ICC demonstrates that even outside the confines of
the courtroom, tribunals can make important contributions to achieving
peace and preventing atrocities. Even without victor's justice and even where
tribunals do not operate in ideal circumstances with substantial support
from the international community (which conditions judicial cooperation
by recalcitrant states on important national interests), the introduction of
legitimacy can shape incentives to end or prevent human rights abuses. The
mere threat of prosecution during a critical time of escalating violence, the
political isolation and military decline that result from being stigmatized as
an international fugitive, a weakened bargaining position after the issuance
of an arrest warrant and the consequent search for scapegoats—these sce-
narios illustrate the manifold ways, some subtle and others blunt, in which
accountability can impact the cost-benefit calculus of using atrocities as an
instrument of power.
I began by reducing the peace versus justice debate to the caricature of
the naïve “judicial romantic” blindly pursuing justice in contrast with the
cynical “political realist” indulging the dictates of power. The debate has
become far more complex since it first arose in the context of the ICTY.
Both sides have now tempered their expectations, whether in regard to how
much tribunals can realistically achieve in preventing atrocities or the real
political costs of leaving genocide, war crimes, and crimes against humanity
unpunished. The judicial romantics are now somewhat sober, and the political
realists somewhat softer, but the underlying tension between the pursuit of
ideals and the constraints of political reality remains. When considering these
different ends of the spectrum, one must not forget that while prosecuting
heads of state and other leaders before tribunals is no longer unimaginable,
the balance is still firmly on the side of political expedience and submission
to power rather than to justice. The still emerging culture of international
accountability continues to navigate through the tenacious remnants of the
culture of impunity that prevailed throughout much of the UN era. While the
idea of the ICC is appealing to the many states that have ratified its statute,
and the Security Council has for the first time referred a situation to the 1CC,
support is still lacking at crucial moments when international pressure is
required to ensure execution of arrest w rrants and other forms of judicial
cooperation. The failure to do justice will likely remain a far bigger problem
.e d
2009 Are International Criminal Tribunals a Disincentive to Peace? 653
when compared to the fear that tribunals will stand in the way of peace
negotiations. Indeed, as the reality and implications of prosecutions before
tribunals becomes increasingly apparent in a variety of contexts, elites who
are both the primary actors in the international lawmaking and institution-
building processes and the potential defendants at the ICC will constantly
reassess their view of the utility of international criminal justice.
Tribunals may experience alternating periods of expansion and retreat;
there may be a concern with consolidating global tribunals or a preference
for local justice at the grassroots level. The process of learning by trial and
error will continue, especially as the “complementarity” scheme envisaged
under the Rome Statute begins to unfold in a broad range of contexts. But
there is no going back to the pre-ICTY world in which genocide could be
committed with Impunity. Against all odds, the rules have changed, or at
least are moving in the direction of fundamental justice.
A mutually reinforcing equilibrium between peace and justice will be
achieved only through a concerted, though gradual, process of internal-
izing accountability as a fact of political life, as an inescapable ingredient
of sustainable power. The cost of an amnesty in a particular situation must
always be weighed against the imperative of transforming the habits of
those in power. Every exception sends the message that criminal liability
for the most serious international crimes can be negotiated. The challenge
in this historical evolution of behavioral norms is to balance the exigencies
of local contexts with the long-term requirements of ushering in a new
global ethos that bridges the gap between ideals set forth in the 1948 UN
Declaration of Human Rights with the realities of governance. The preamble
of the Declaration recognized that “the inherent dignity and . . . the equal
and inalienable rights of all members of the human family is the founda-
tion of freedom, justice and peace in the world.” 85 We witness, more than
sixty years later, the catastrophic toll that disregard of this admonition has
brought upon humankind.
Beyond considerations of global governance, we should also consider
what our pursuit or lack of commitment to justice says about our funda-
mental self-conception. One human rights lawyer who was interviewing
distraught Darfur refugees at a camp in Chad was repeatedly asked, “When
will Bashir be tried? . . . We are here because of Ehiml.” 86 In contrast to the
weighty pronouncements of theorists and bureaucrats, the pithy speculations
of pundits and policymakers, it is the voices of the survivors, reflecting the
85. Universal Declaration of Human Rights, adopted 10 Dec. 1948, GA. Res. 217A (Ill),
U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, pmbl., U.N. Doc. A/BiG (1948), re-
printed in 43 AM.). INT'L L. 127 (Supp. 1949).
86. Sara Darehshori, Op-Ed, Doing the Right Thing for Darfur—An iCC Indictment of Sudan's
President Serves Peace and Justice, L.A. Tiv€s, 15 July 2008.
654 HUMAN RIGHTS QUARTERLY Vol. 31
intimate horrors of genocide, that most forcefully remind us that justice is
not a mere utilitarian abstraction. It is those who are left with nothing but
the desire to redeem their lost humanity who remind us of who we are as
humankind, and of the empathy and moral solidarity with the oppressed
that is the basis for true civilization. The fact that we are forced to invoke
utilitarian rationales to justify justice is itself a reflection of the sorry spiritual
condition into which we have sunk. Perhaps in the coming years and decades,
the unfolding moral impact of tribunals on global consciousness will lead us
to a new understanding in which impunity for génocidaires as an incentive
for peace will be ridiculed as a far-fetched illusion of a dark past.
It
Ii
