Since the International Criminal Court became operational in 2002, we have witnessed an unprecedented integration between peace and security and international justice.
The I.C.C. Office of the Prosecutor is investigating and prosecuting cases in eight situations — Uganda, Democratic Republic of Congo, Central African Republic, Darfur, Kenya, Libya, Ivory Coast and Mali. The Office has also made a substantial contribution to international peace and security by proactively collecting information and monitoring situations under preliminary examination, including those in Guinea, Georgia, Colombia, Honduras, Korea, Nigeria and Afghanistan.
Yet despite this, we consistently hear voices questioning whether perpetrators of crimes against humanity, war crimes and genocide should always be prosecuted. This question has long been asked: Peace or justice? Shall we strive for peace at all costs, sacrificing justice on the way, or shall we soldier on in the pursuit for justice to end impunity?
Past negotiations have done just that: sacrificed justice for peace. Yet history has taught us that the peace achieved by ignoring justice has mostly been short-lived, and the cycle of violence has continued unabated.
As the I.C.C. is an independent and judicial institution, it cannot take into consideration the interests of peace, which is the mandate of other institutions, such as the United Nations Security Council.
However, justice can have a positive impact on peace and security: this is what the U.N. secretary general, Ban Ki-moon, calls the “shadow of the Court” — its preventative role, and its capacity to diffuse potentially tense situations that could lead to violence by setting a clear line of accountability. History will judge how the shadow of the I.C.C. may have contributed to peaceful elections in Kenya.
Other voices say the I.C.C. is an obstacle to peace. This is narrow and short-sighted. On the contrary, if anything, the “shadow of the Court” has helped to isolate individuals wanted by the I.C.C., or to kick-start negotiations.
In the case of the Lord’s Resistance Army (L.R.A.) in Uganda, for example, I.C.C. arrest warrants against Joseph Kony and his top commanders are widely acknowledged to have played an important role in bringing the rebels to the negotiating table in the Juba Peace Process. This despite the threat by the L.R.A. to withdraw from the peace talks if arrest warrants remained in force.
Blackmail or “golden exiles” are no longer the ways to achieve sustainable peace. If the international community is to work toward long-lasting peace, critics must question why peace had proven elusive in a country such as Uganda long before these warrants were issued.
The role of the I.C.C. has never precluded or put an end to any peace process. While we should not presume that warlords are rational actors, and that every situation will be the same, the Court’s impact on peace until now has been noted, and has proved to be a spur to action.
If we have learned anything from history, it is that accountability and the rule of law have been recognized as fundamental preconditions to provide the framework to protect individuals and nations from massive atrocities, to promote peace and international security, and to manage conflicts. Not only was prosecuting crimes seen as satisfying conceptions of fundamental justice, but also as a means to prevent their perpetration.
The debate about peace versus justice or peace over justice is a patently false choice. Peace and justice are two sides of the same coin. The road to peace should be seen as running via justice, and thus peace and justice can be pursued simultaneously.
The pursuit of justice, whether it be through national or international prosecutions, and the pursuit of peace, whether it be through truth and peace negotiations, can, and must, work together. They should not be seen as oppositional, not alternatives, but complementary.
All actors involved in situations where mass crimes have taken or are taking place — whether they are judicial institutions, mediators, peace negotiators, political leaders, civil society — have a crucial role to play, refining their strategies, adjusting to the legal limits, and coordinating their efforts to ensure a comprehensive and long-lasting peace.
My Office will continue to work hard to ensure justice for the victims and accountability for the perpetrators, and to contribute to the prevention of future crimes.
Fatou Bensouda is the Prosecutor of the International Criminal Court. She is speaking Wednesday at the Forum for New Diplomacy hosted by the International Herald Tribune and the Académie Diplomatique Internationale.