Justice, Peace and the International Criminal Court, Gareth Evans

Presentation by Gareth Evans, President of the International Crisis Group, to the Second Public Hearing of the Office of the Prosecutor, The Prosecutorial Strategy for 2007-09, The Hague, 25 September 2006

I very much appreciate this opportunity to bring an international NGO’s perspective to this essentially intergovernmental meeting reviewing the progress of the International Criminal Court. The International Crisis Group has very much valued the willingness of the Office of the Prosecutor (OTP) to engage in outreach and consultation and this is an excellent example of that willingness. Crisis Group’s value-added on this occasion is, I guess, that we are a global organization with a very close on the ground knowledge of just about all the geographic areas on which the OTP has been focused, and that we bring a perspective that is primarily one of conflict prevention and management rather than human rights or justice. We are constantly wrestling with the tension between peace and justice, which has become a recurring issue for the OTP, as it has for policymakers everywhere, and doing so from a perspective which is perhaps a little different from the Court’s own, and that of many others of its supporters.

The challenge of dealing with this issue is particularly acute for this Court because, with its jurisdiction only available for events occurring after July 2002, a great deal of its work is necessarily bound up with ongoing conflict. The peace versus justice dilemma is much less of a concern when prosecuting past crimes arising out of concluded conflicts. But the ICC does not have the luxury of waiting for clear air: there will always be pressure for it to intervene in ongoing conflict situations, because the threat of prosecution is such a potentially effective tool in changing the calculations of warring parties on the ground.

But before offering some thoughts on this difficult and complex issue, first let me offer a short response to the two reports before us from the Office of the Prosecutor, looking back and looking forward respectively.

Looking back.The OTP has done a good job so far in establishing its team, laying the foundations for the future, compiling procedural manuals, selecting initial cases and getting investigation processes started. There is a disposition to under-appreciate the complexity of the process and the sheer size of the task of getting a Court like this under way. But I do think that it has learned and effectively applied many lessons from the inevitable missteps of its specialist predecessors, the ICTY and ICTR.

The OTP Report of 12 September 2006 on the activities performed during its first three years (June 2003- June 2006) highlighted three particular challenges that had to be faced. The first was the selection of cases. The ‘gravity’ criterion that has been applied seems quite appropriate, from Crisis Group’s perspective. Taking into account the complementarity principle, the cooperation available from relevant states, and the willingness of the UN Security Council to initiate proceedings, the choices made – of the DRC, Northern Uganda and Sudan – seem to be entirely defensible, even though all of them happen to be in just one continent, Africa.

As to the second challenge, conducing investigations, we have no quarrel at all with the narrow focus on the most serious crimes, and on those individuals bearing the greatest responsibility. Because of the sheer difficulty of working in on-going conflict situations, this is an inevitable and necessary choice, and should not be criticised. On the third challenge, cooperation from the international community, in particular in arrests, I found the document exceedingly polite. Frankly, there has been a lot of general rhetoric from states but not much action when it was needed, with Northern Uganda being a good example: the government itself may have been supportive, but has manifest not had much support from neighbouring or other states in terms of intelligence or military cooperation.

Looking Forward. The OTC Report on Prosecutorial Strategy of 14 September 2006, addressing the coming three years, contains an unexceptionable list of five strategic objectives, of which I will comment on just the first two. The first stated priority is to ‘complete two expeditious trials’. Certainly there is an urgent need now, after three years, to get some successful prosecutions under its belt. These reinforce the ICC’s credibility – making clear to the international community that it is getting value for its money - and are crucial for the Court’s deterrent effectiveness. The best way of getting the impunity message out is through successful trials.

The Lubanga case in the DRC is obviously the most advanced. Human rights organizations have criticized the limited scope of the charges laid – limited to conscripting children - claiming that evidence exists of systematic rapes , torture, and summary executions. But this goes back to the choices and focus of the Prosecutor. If the need is to quickly demonstrate the ICC’s effectiveness then the Prosecutor is right to proceed on narrower charges for which he has evidence on which he can move quickly. Additional charges should no doubt be brought later, if the evidence proves equally strong, and additional groups should be investigated. But it is the entirely right choice to keep the focus narrow to get it moving.

The second stated priority is ‘to conduct four to six new investigations’ in the next three years. I don’t want to comment on particular situations. But in terms of the strategy to focus on “current and new” situations, I would also note that (to the extent that the 2002 jurisdiction limit permits) ‘old’ situations should also be of concern, those where there is not ongoing conflict or an ongoing peace process, but rather clearer ground in which the the investigators can work - very important if the OTP is to be able in practice to quickly get more ‘runs on the board’. That said, of course investigations have a great preventive potential, in current conflict situations, when actors know there are ongoing investigations focusing on them. In Darfur, for example, a real belief that the ICC, with the full support of the international community, were to be not just looking just at past alleged crimes but closely monitoring possible present and future ones would be a serious deterrent. The ICC is an effective conflict prevention weapon, and it should be deployed this way against Khartoum with a lot more rigor than that for which there is presently enthusiasm in New York.

Part of the ‘Prosecutorial Strategy’ paper talks of the OTC’s aim to ‘establish a clear set of performance indicators and evaluation processes’. My short comment here is not to get too hung up on quantitative evaluation. There is always a hunger in all organisations, including my own, to measure things in terms of numbers. But the only evaluation that really matters is from your peer group – anecdotal accounts, what people who know what is going on are saying about you. So far, the feedback on the OTC is good - but the clock is ticking!

Peace versus Justice.Neither report before us gives more than passing attention to this issue, but it can and does give rise to very real dilemmas which the international community needs to spend more time addressing than it has so far.

My starting point is that dealing with impunity and pursuing peace are not necessarily incompatible objectives at all: they can unquestionably work in tandem, even in an ongoing conflict situation. In Northern Uganda, notwithstanding the fury in some quarters about the ICC supposedly obstructing the peace and reconciliation process, there are two reasonable countervailing arguments available:

The number of crimes being committed by the LRA in Northern Uganda have , as the OTP review states, diminished drastically since the arrest warrants were issued, and it is a reasonable assumption (difficult though it is to know what precise motivations have been at work) that the issuing of the warrants contributed to this because the LRA leadership, now seeing their eventual apprehension as more likely than before, did not want to make things any worse for themselves by multiplying atrocities. The issuing of the warrants seems likely to have had a positive impact on un-stalling the peace process itself, to the extent that the LRA leaders (again, to the limited extent that we can confidently assess their motivation) appear to have believed that by coming to the table, they can trade off an end to the hostilities for amnesties, or at least mitigation of penalties.

All that said, we also must acknowledge that situations can arise in which the need to advance a peace process can work against the impunity principle: as much as it may shock the conscience to contemplate not pursuing prosecutions when major perpetrators of atrocity crimes are involved, this can be helpful in certain circumstances in ending conflict, and in saving as a result a great many more lives. The classic case is Nigeria’s initial grant of asylum to Liberia’s murderous Charles Taylor in 2003, not at all unreasonable given the prospect then looming of thousands more deaths in the final battle for Monrovia.

But there are two important principles that must govern any decisions of this kind. The first is that only in the most exceptional cases, where the evidence really is clear that very major peace benefits are involved, should serious consideration be given to discontinuing investigations under way or granting formal amnesties. The obvious downside risk of these situations is that the more the ICC’s work is perceived as “negotiable”, the more its role as a deterrent of atrocity crimes is undermined: the cases really do have to be very exceptional.

In this context, the case for giving immunity from ICC prosecution in Northern Uganda to Joseph Kony and other senior LRA leaders (as distinct from lower level commanders and rank and file), to encourage the final emergence from the bush of that top leadership echelon, is not particularly strong in terms of the direct impact this would have on ending further major violence, when measured against the barbarity of the crimes committed. Again, in the case of Darfur, some may be tempted to argue that senior governing party and government officials should be promised amnesties in return for cooperation. But this is not a situation where it is easy to see a direct and major benefit to peace in return for the trading away of justice. Khartoum’s record of broken promises is cause for great scepticism about any cooperation promised in the future, and it is strongly arguable that the current ICC investigation, difficult though it has been to pursue, and the possibility of prosecutions ultimately flowing from it, help build pressure on Sudan’s leadership to recalculate the costs of defying the international community. What is more, accountability for atrocities in Darfur will continue to be a necessary cornerstone for any sustainable peace agreement in the region.

The second principle here is that if decisions to give primacy to peace over justice do have to be made in certain hard cases, those decisions are best made not by the ICC or its prosecutor but by those with appropriate political responsibility: in the case of this court, the Security Council has that power, if it chooses to use Article 16 of the Rome Statute enabling it to suspend prosecutions for renewable periods of twelve months.

The Prosecutor’s job is to prosecute and he should get on with it, with bulldog intensity. His task is to end impunity for the worst atrocity crimes: Article 53 gives him a certain discretion not to pursue matters if the ‘interests of justice’ so require, but the interests of justice do not necessarily coincide with the interests of peace. Having the Prosecutor make the determination as to when and how to weigh the demands of conflict resolution puts him in an impossible situation. So he has to get on with justice. If the judgement has to be made, on occasion, that the interests of peace should override those of justice, then that should be for the Security Council to decide, not the ICC, and the pressure and weight of expectations should be taken off the Prosecutors’s shoulders in this respect.

There may be a reluctance – particularly by those who come at these issues from a human rights rather than conflict resolution perspective – to give so central a role to Article 16, and maybe this general balancing role is more than was originally contemplated for it. But the international community has to recognise that there are competing principles of more or less equally compelling moral force involved here, and there has to be some mechanism for accommodating them. Article 16 is capable of doing that job, and this is the way in which we should be thinking about how to apply it. It’s the ICC’s role to press on with the investigation and prosecution of those whose behaviour justifies it; it’s the Security Council’s role to make the decision on occasions that the interests of peace should be given priority. Any such decision should not be seen as leaving the ICC ‘high and dry’, but rather simply as an appropriate division of decision-making responsibility.

The ICC and the OTP have had a good start, and they do have the confidence of the overwhelming majority of members of the international community. Sustaining that confidence will be the trick, for which you will certainly need a strong performance from the Court itself and all its personnel, and some early visible runs on the board. But you will also need very real cooperation – particularly when it comes to executing arrest warrants and assisting in investigations – from states. Rhetorical commitment is all very well, but practical delivery is what ultimately counts, and that message needs to be heard loudly and clearly in capitals.