Justice as a Dialogue Between Law and Politics: Embedding the International Criminal Court within Conflict Management and Peacebuilding

Abstract

Despite legalist claims that it should be independent of politics, the International Criminal Court needs to operate within rather than above international strategies of conflict resolution. That is because of the challenges it confronts in the two kinds of relationships it has with states on whose territory it is investigating crimes c adversarial, where it examines official wrongdoing by an entrenched regime, and cooperative, when states refer situations on their territory. In the former, state cooperation is improbable and the prospects for prosecution depend on the willingness of external actors to deploy coercive political instruments to change the balance of forces against the government whose practices are being scrutinized. In the latter, criminal justice depends upon the cooperation of the referring state, which creates the risk that governments will use the Court to criminalize their enemies without improving their own human rights practices. In both situations, the Court is likely to confront a ‘peace versus justice’ dilemma in which insistence on prosecution could criminalize those whose cooperation is necessary for a political solution. Prosecutorial discretion should therefore be embedded in dialogue with both local and international stakeholders involved in conflict management and peacebuilding in order to maximize the prospects for accountability while minimizing the risks to human security.

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