HARMEN VAN DER WILT
The relationship between peace and justice is a convoluted one. History reveals that justice has mostly been subordinate to the cravings for peace. In the wake of international armed conflicts or civil wars, war criminals have usually benefitted from amnesties or have simply been left untouched. While the opinion ‘to let bygones be bygones’ may certainly not be shared by everyone, war fatigue, lack of political power and the urge to turn over a new leaf are factors that contribute to the policy of burying the past.
Only after World War II the idea came to prevail that real peace cannot be achieved without those having committed heinous crimes being held accountable. Feelings of rage and revenge would have no outlet and become festering wounds that would prevent true reconciliation. Criminal trials might contribute to the healing of societal ruptures. These views on the relationship between both concepts are neatly captured in the gradual shift of popular slogans: ‘peace versus justice’ has become ‘no peace without justice’. 
The complex relation between peace and justice is reflected in international institutional structures as well. Ad hoc tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) have been established by a resolution of the Security Council. In Resolution 827, creating the ICTY, the Security Council emphasized the instrumental value of criminal trials in the pursuit of peace. The Council determined that the ‘widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia constituted a threat to international peace and security’. It added that ‘bringing to justice the persons who are responsible for these serious violations would contribute to the restoration and maintenance of peace.’ The Preamble to the Rome Statute of the International Criminal Court is less explicit about a supposed harmony between peace and justice. While the States Parties to the Statute acknowledge that ‘unimaginable atrocities threaten the peace, security and well-being of the world’, they do not suggest that criminal proceedings before the ICC are necessarily a proper – let alone the only – cure to repair this dismal situation. Rather, the Preamble stresses the quest to end impunity as a goal in itself.
One may perhaps deplore the loss of Arcadia in which peace and justice walked hand in hand. Or one may hail the realistic quality of this approach, candidly avowing that these lofty ideals do not always coincide. In this short essay I will explore the relationship between the ICC and the Security Council as it has taken shape in the institutional architecture of the Rome Statute. My main purpose is to figure out whether this construction is really intended to balance the sometimes opposite aims of peace and justice, or whether it largely serves as a cover up for the protection of vested political interests.
The Security Council in the Rome Statute
The Security Council features in the Rome Statute at different places, representing distinct functions vis à vis the Court’s exercise of jurisdiction. First of all, the Council can overrule the system of state consent as a prerequisite for the Court’s jurisdiction. This is done by referring to the Prosecutor a situation in which one or more of the core crimes appear(s) to have been committed (Article 13, sub b Rome Statute). The addition that the Security Council ‘acts under Chapter VII of the Charter of the United Nations’ implies that the referral serves as a measure to maintain or restore international peace and security. Secondly, Article 16 provides for the exact opposite of the former provision, by stipulating that the Security Council, acting under Chapter VII of the UN Charter, has the power to defer an investigation or prosecution by the Court for a period of 12 months, which can be renewed by the Council under the same conditions. And finally the Security Council has an important role in triggering the jurisdiction of the Court in respect of the crime of aggression. After all, Article 15bis of the Rome Statute provides that the Prosecutor, after having concluded that there is a reasonable basis to proceed with an investigation in respect of aggression, must first ascertain whether the Security Council has made a determination that an act of aggression has occurred. The Prosecutor is not completely dependent on the findings of the Security Council. Even in the absence of such a determination by the Council, the Prosecutor is allowed to proceed with an investigation after having waited 6 months, provided that she has obtained the approval of the Pre Trial Chamber (Article 15bis, section 8 Rome Statute).
These three dimensions call for some observations and comments. The articles on aggression are the fruits of a delicate compromise between the urge to keep the Court aloof from political interference, and the prerogatives of the Security Council in the realm of peace and security. As the crime of aggression will only come within the jurisdiction of the Court after 2017, I will no longer dwell on this aspect.  What interests me in particular is that Articles 13 and 16 of the Rome Statute represent in mirror image the potential relations between peace and justice as briefly expounded in the introduction. Apparently,the commencement of a criminal trial can sometimes advance the cause of peace, while in other situations it can work to its detriment. Whether it is one or the other depends on the particular circumstances and can obviously only be assessed by scrutinizing the practical implication of these provisions.
The practice of referrals and deferrals
Until now two ‘situations’ have been referred by the Security Council to the Prosecutor of the ICC, those in Darfur/ Sudan and in Libya. Neither of these resolutions sheds much light on the question why a legal intervention by the Court would in these specific situations contribute to the peace. In resolution 1593, the Security Council determines, without elaboration, that the situation in Sudan continues to constitute a threat to international peace and security, and proceeds by ascertaining that it is acting under Chapter VII. In the case of Libya, the Council merely calls to mind its primary responsibility for the maintenance of international peace and security under the UN Charter, without explicitly making a connection to its referral decision. While it is not immediately obvious how a local conflict might affect international peace and security, these resolutions are at least sustained by the findings of the Appeals Chamber of the ICTY in the Tadić case:‘there is a common understanding, manifested by the “subsequent practice” of the membership of the United Nations at large, that the “threat to the peace” of Article 39 of the UN Charter may include, as one of its species, internal armed conflicts’. Although civil wars may certainly have spill-over effects and have wider repercussions for international peace and security, the resolutions do not clarify how an intervention of the Court would stem the threat to the peace.
Shortly after the Rome Statute came into force, the Security Council adopted Resolution 1422 that served to shield military and other personnel of states that had not ratified the Statute and contributed to UN operations, from investigation and prosecution by the Court. The Resolution was explicitly put into the key of the deferral-procedure of Article 16 of the Statute. The Security Council – emphasizing that UN operations are deployed to maintain or restore international peace and security and that these operations would benefit from the contributions of States not parties to the Statute – suggested that peacekeeping operations would be jeopardized if those military officials would be subject to the jurisdiction of the Court. It is a matter of speculation why the prosecution of UN peacekeeping soldiers suspected of international crimes could be detrimental to peace and security. The only reasonable inference would be that third states – to wit, the United States – would refuse to send troops or even threaten to withdraw their support for any UN-operation if they could not obtain the guarantee that their men were left untouched. That would certainly constitute a threat to world peace, but it would simultaneously amount to vulgar blackmail. The generic phrasing of Resolution 1422 that fails to indicate in what situations and why prosecution of UN personnel would threaten the peace makes it rather tenuous from a legal point of view.
Concern over the possible prosecution of nationals of third parties that contributed to UN operations was also one of the priorities of the Resolutions on Darfur and Libya, shortly mentioned before. The language of Resolution 1593 is unequivocal in this respect:
‘6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State.’
Reading Resolutions 1593 and 1422 in conjunction, it seems to imply that, if the intervention of the Court would be conducive to peace and security – a point on which the Security Council is quite evasive – that positive trait would be nullified if military of third states, contributing to UN operations, would be prosecuted by the ICC. It still begs the question why such prosecutions would have such detrimental effects.
A possible deferral on the basis of Article 16 of the Statute resurfaced after the ICC Prosecutor’s request for an arrest warrant against Sudan’s President Al Bashir. The African Union (AU) Peace and Security Council issued a statement expressing its concern on the biased indictments against African leaders and subsequently adopted a communique in which it argued that ‘in view of the delicate nature of the processes underway in the Sudan, approval by the Pre-Trial Chamber of the application by the ICC Prosecutor could seriously undermine the ongoing efforts aimed at facilitating the early resolution of the conflict in Darfur and the promotion of log-lasting peace and reconciliation in the Sudan as a whole and, as a result, may lead to further suffering for the people of the Sudan and greater destabilization with far-reaching consequences for the country and region.’
The AU Council continued by requesting the UN Security Council ‘in accordance with the provisions of Article 16 of the Rome Statute of the ICC, to defer the process initiated by the ICC, taking into account the need to ensure that the ongoing peace efforts are not jeopardized. As well as the fact that, in the current circumstances, a prosecution may not be in the interest of the victims and justice.’
The Security Council did not pay much heed to the ardent plea of the African Union. It reiterated the need to bring Al Bashir to justice and took ‘note of the AU communiqué of 21 July, having in mind concerns raised by members of the (AU) Council regarding potential developments subsequent to the application by the Prosecutor of the International Criminal Court of 14 July 2008, and taking note of their intention to consider these matters further.’
One may of course have different opinions whether a deferral under Article 16 would have been warranted from a political and legal perspective.  But that is not the main point. I am rather surprised that a well-constructed argument that warns against the risk of escalating animosities as a consequence of a contested decision to arrest an incumbent head of state is rejected without much ado. It contrasts with the ease with which other resolutions have been presumed to serve the course of peace and fosters the suspicion that sound reasoning and commitment to peace are sacrificed to political expediency.
On Peace, Politics and Justice: some final reflections
In this essay I have attempted to give an impression of the interaction between the International Criminal Court and the Security Council. It transpired that the Security Council may alternately seize the Court, even breaking through the system of state consent, or suspend its jurisdiction whenever this furthers international peace and security. In view of the primordial interest of peace and security, and the power monopoly of the Security Council in respect of these parameters, this arrangement seems fair enough. It raises, however, difficult issues on the relationship between peace and justice. That this connection is indeed complex and unpredictable has emerged in the first ‘situation’ addressed by the Court, concerning the armed conflict in Uganda. Initially, the Prosecutor’s Office assumed that announced prosecutions would serve as a bargaining chip to lure the rebels of the Lord’s Resistance Army to the negotiation table. However, LRA’s flamboyant leader, Joseph Kony, demanded that any indictments be withdrawn, before he would even consider engaging in peace talks.
My main argument in this essay has been that the Security Council has not been very helpful in elucidating when and why criminal investigations and prosecutions by the International Criminal Court would be either promoting or impairing peace and security. The Resolutions that referred the situations in Darfur and Libya hardly explained why such a referral would benefit peace and justice, while the much better substantiated request by the African Union that intended to demonstrate that intervention of the Court was counterproductive was summarily rejected. The International Criminal Court has until now not been particularly successful in Sudan. There are no Sudanese suspects in the dock at the Hague. Some of the accused are at large or the case has been ended due to the presumed death of the suspect. Moreover, political tensions between the ICC on the one hand and the African Union and African states on the other have mounted. Of course, this does not prove that ‘deferral’ would have been the better option, but it at least casts doubts on the soundness of the current policy.
One aspect prominently featuring in the motives to either refer to, or take away a situation from, the ICC, has been the concern that nationals of third states, contributing to UN peacekeeping operations, would be exposed to the ICC’s jurisdiction. That would indeed, in a rather crude way, be detrimental to peace and security, because the contributing states could, as a sanction or threat, decide to withdraw their assistance to such operations. The rather uncomfortable relationship between the ICC and the United States has been widely documented and need not be rehashed here. The prosecution of nationals may conceal a deeper uneasiness of the Court’s arrogating appellate powers or thwarting the prerogatives of the Security Council. Moreover, it would be unfair to only blame the United States for political manipulation of the Court. My point is that global power politics tend to highjack and overshadow important issues on the relationship between peace and justice that are of major concern to those who are directly involved. And that is a regrettable development.
Prof. dr. Harmen van der Wilt
Universiteit van Amsterdam