Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism

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 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.

Bridging the Gap between Human Rights and Peace: An Analysis of NGOs and the United Nations Human Rights Council:

“…On the other side of the debate are those that argue that efforts to prosecute human rights violators will make it more difficult to reach a peace agreement; that conflict parties will not come to the negotiation table if there is the threat of international criminal prosecutions, and thus a focus on justice will impede peace settlements and ultimately lead to greater conflict and human rights violations (Akhavan 2009;Williams 2014: 135). Armstrong (2014: 590) notes that the ICC's decision to investigate the Government of Uganda and the Lord's Resistance Army "was considered a direct threat to local peace efforts."…”

“…In the secular arena of large donors and UN peacebuilding efforts, efforts to promote human rights and peace "have historically proceeded on separate tracks" (Sharp 2013: 195). Secular human rights scholarship tends to focus more on the role of human rights NGOs in promoting or ameliorating (armed) conflict or protests, rather than a discussion of "peace" per se (Murdie and Bhasin 2011), or focuses on negative peace between actors; for example, weighing the costs and benefits of human rights prosecution after a civil war (Anonymous 1996;Hayden 2004;Akhavan 2009). In contrast, religious organizations tend to espouse a more holistic view of "peace" that includes addressing systemic injustice and restorative processes of conflict resolution (AFSC 2012; MCC).…”

The Politics of Leverage in International Relations

“…Indictments, or the threat thereof, may lead rational perpetrators to moderate their behavior or would-be perpetrators to forego extremes of brutality. In their view, any negative consequences of court activity are not the result of the court itself, but owing to the cruelty of the accused and the international community's weak political will to enforce courts' edicts (Akhavan 2009; see also Grono and O'Brien 2008;Sikkink 2011). Still others challenge the alleged deterrent effect of indictments on logical grounds.…”

Current and Potential Capacity for the Prevention of Genocide and Mass Atrocities within the United Nations System

“…70 However the power of deterrence for prevention remains controversial and contested. 71 A number of other organs of the UN system can be identified as having a strong potential capacity to contribute to mass atrocity prevention, even if that capacity is largely to yet be realised. The Human Rights Council has the potential to contribute substantially, although at less than five years old, it has yet to have a meaningful impact.…”