The International Criminal Court and Peace Processes in Africa

Judicialising Peace

Line Gissel

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367593353
• eBook ISBN: 9781351591898
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Criminal Law
• Index: Politics & International Relations

The book investigates how involvement by the International Criminal Court (ICC) affects efforts to negotiate peace. It offers an interpretive account of how peace negotiators and mediators in two peace processes in Uganda and Kenya sought to navigate and understand the new terrain of international justice, while also tracing how and why international decision-making processes interfered with the negotiations, narrated the conflicts and insisted on a narrow scope of justice. Building on this interpretive analysis, a comparative analysis of peace processes in Uganda, Kenya and Colombia explores a set of general features pertaining to the judicialisation of peace.

Line Engbo Gissel argues that the level and timing of ICC involvement is key to the ICC's impact on peace processes and explains why this is the case: a high level of ICC involvement during the negotiation phase of a peace process delegates politico-legal and discursive authority away from peace process actors, while a low level of ICC involvement during the negotiation phase retains such forms of authority at the level of the peace process. As politico-legal authority enables the resolution of sticking points and discursive authority constructs the conflict and its resolution, the location of authority is important for the peace process. Furthermore, judicialisation also affects the negotiation and implementation of a justice policy, with a narrowing scope for justice accompanying increasing levels of ICC involvement.

1Introduction

International justice and the problem of peace

When it comes to peace and justice, we are living in a new world.

Ban Ki-moon, UN Secretary-General, Security Council open debate, ‘Peace and Justice with a Special Focus on the Role of the International Criminal Court’, New York, 19 October 2012

It is a new world of mediation when amnesties are not an option. We don’t have a lot of experience of peace processes without amnesty options.

James LeMoyne, Mediator, Rome Statute Review Conference plenary debate, ‘Stocktaking on Peace and Justice’, Kampala, 2 June 2010

For UN Secretary-General Ban Ki-moon and mediator James LeMoyne, peacemaking practices and justice norms co-habit ‘a new world’. In this world, perpetrators of atrocity are held to account, unable to ‘trade their power for amnesty and then slip away, unpunished, to some safe haven’ (Secretary-General in UN Security Council 2012). Its novelty springs from the fact that an emerging international criminal law regime claims relevance for conflict resolution. Until recently, peace processes were fairly independent of the formal rules that frame ordinary politics. Mediators had discretionary power to choose which legal obligations to bring into the negotiations. As Väyrynen et al. (1995, 68) observed in 1995:

Third parties may introduce issues to the process of conflict resolution the parties prefer to leave out. The fact that third parties can draw on international legal standards to do so (or ignore these in handling a dispute) can both enhance and limit the possibilities for a mediated solution.

As a result of this approach, engagement with armed groups was characterised by the ‘relative neglect’ of accountability issues (Whitfield 2010, 7). In contrast, in contemporary conflict resolution, negotiators and mediators are now likely to be under ‘considerable pressure’ to comply with international principles and international law if the conflict parties have committed gross human rights abuses (Hayner 2009, 9).

This ‘new world’ is a tense terrain where the pursuit of justice may collide with that of peace, a staggering situation made possible by three characteristics of contemporary conflict and international normativity. First, atrocity usually takes place within a context of political conflict. War crimes, crimes against humanity and genocide are committed against persons perceived as enemies, understood as such within a context of violent political contestation. Of Harff’s (2003, 62) 37 cases of genocide and mass political murder between 1955 and 1997, all but one occurred during or immediately after political upheavals. International criminal law’s timeless prosecution of atrocity catapults the International Criminal Court (ICC) and other international criminal tribunals into the field of conflict.

Second, armed conflicts can be ended militarily or politically. Military victory will stop the violence, but may not solve its underlying incompatibility. When there is insufficient capacity on either side to secure a military victory, war may last for decades. The only way to end this type of protracted conflict is by means of a negotiated settlement, where the conflict parties agree to accept each other’s continued existence as parties (Wallensteen 2012). Political solutions presuppose rehabilitation, while military solutions rest on capitulation. Settlements that end internal conflicts therefore often include arrangements for the integration of former insurgents into the national army and the rehabilitation of their group. This solution has led to different degrees of societal improvement in countries such as El Salvador, Mozambique, South Africa and Spain and it is, therefore, on its own, insufficient for creating a ‘positive peace’, meaning the absence of structural violence. While in many cases a peace settlement may not prevent a later return to war (Högbladh 2012), it remains the only alternative to military victory.

Last, the pursuit of criminal justice requires the capitulation, cooperation or arrest of alleged perpetrators prior to their trial. This brings the conflict status to the fore. While international criminal law does not distinguish between terminated or ongoing conflicts, this context clearly matters to a justice intervention and its impact on the context. Where conflict has ended, there is no a priori contradiction between the pursuit of justice and that of ‘negative peace’, meaning the absence of direct physical violence. In contrast, in situations of ongoing conflict, where alleged perpetrators command armies, international judicial interventions inevitably interact with efforts to negotiate an end to war.

To conflict mediators, the ‘new world’ of peace and justice is difficult to navigate – there are many prescriptions for ensuring that a criminal accountability process is part of the peace, but very few peace processes have succeeded in achieving this. To stay in the geographical metaphor, the maps are there, but few have followed them. To many countries and international organisations, including the United Nations (UN) and the European Union (EU), this lack of experience is less of a concern. What matters is, instead, the promulgation and consolidation of the new, progressive norms and rules. By insisting on maps not drawn from experience, it is possible to chart a new path, to force a change in practice.

This book speaks to these two different concerns by asking how and why ICC involvement in situations of ongoing conflict affects the conditions of possibility for a political settlement. To answer this question, it investigates the relationship between peace and justice empirically, comparatively and interpretively. The analysis is empirical because claims by proponents and critics of judicialised peacemaking are based ‘mainly on normative grounds and … deductive reasoning’ (Skaar and Malca 2015, 14). It is comparative because comparisons enable a level of generalisation that allows us to understand the judicialisation of peace as a general phenomenon, abstracted from the particularities of specific processes of conflict resolution. Finally, the analysis is interpretive because the interaction between justice actors and peacemakers needs to be approached as concept-dependent and meaningful in order to be understood. The practices, rules, roles and relations of judicialised peacemaking depend on what they mean to its actors (Maxwell 2004).

To understand how and why international justice interventions affect peacemaking processes, this book analyses two peace processes that have taken place in the context of ICC involvement: the Juba Peace Talks between the Ugandan government and the Lord’s Resistance Army (LRA) rebel group, which sought to end the protracted insurgency in Northern Uganda, and the Kenya National Dialogue and Reconciliation process between two political parties, the Party of National Unity (PNU) and Orange Democratic Movement (ODM), who used violence to claim the presidency following the 2007 general elections. These two peace processes are purposefully selected from a universe of cases defined by the scope condition of active ICC involvement. Peace processes without active ICC involvement are considered too causally heterogeneous to enable the research.

The cases are selected on the basis of their peace process outcomes and the nature of the conflicts. A successful and an unsuccessful peace process represent the two possible outcomes. Selecting one of each outcome type prevents the conclusion that ICC involvement per se dooms the resolution of judicialised conflicts. It also ensures that the findings are not exclusive to peace processes that could be argued to have been always failure-prone. This is an important point, as international justice proponents tend to brush off mediators’ ICC critiques as a strategy to avoid blame for having failed to secure a settlement.¹ The failure of the Juba process to end a protracted conflict was never seen as inevitable. The Northern Ugandan conflict was not more immune to resolution than the civil wars in Mozambique, South Africa and Sudan, which were all settled politically. The variation in conflict types ensures that the findings are robust across different contexts of conflict resolution. It is more likely that the ICC is the cause of important patterns of judicialisation if these patterns are shared across peace processes that tackle different types of conflict. The selection for maximum variation enables findings ‘that cut across cases and derive their significance from having emerged out of heterogeneity’ (Patton 2002, 235).

The selected cases are a successful and an unsuccessful peace process: the Juba Peace Talks failed to achieve a political solution to conflict, while the Kenya Dialogue managed to end the post-election violence by means of a power-sharing agreement. These two peace processes also dealt with different types of conflict: the Juba Peace Talks sought to end a long-standing insurgency, while the Kenya Dialogue aimed to end violent civil unrest that derived from long-standing land-based conflicts. The comparison of peace processes with such different conflict contexts does not focus on the specific content of the proposed solutions, but studies how participants arrived at these solutions and how and why ICC involvement affected the latter and the negotiations.

By comparing these two processes of conflict resolution, the book identifies a set of general characteristics pertaining to judicialised peace processes. These characteristics relate to the delegation of politico-legal and discursive authority, the shaping of sticking points and the decontestation of the meaning of justice. Given the importance of both authority and meaning-making for the achievement of a political solution to conflict, these characteristics do not lend themselves to a simple reconciliation between peace and justice in situations of ongoing conflict. However, they do encourage a reconsideration of the temporality of each process and enable a deep understanding of judicialised peace processes that can help practitioners and policy-makers navigate in the ‘new world’. The book presents a theory about how ICC involvement during ongoing conflict impacts upon peace processes that seek to end the conflict. Contrary to received wisdom in many UN agencies, governments and non-governmental organisations (NGOs), peace and justice do not always ‘go hand in hand’. Whether they do this depends on the level of ICC involvement during the Negotiation phase. A high level of ICC involvement shapes the nature of the sticking points of the peace process, transfers politico-legal authority to the international level and seeks to decontest justice. In contrast, a low level of ICC involvement allows for conflict-specific sticking points, retains politico-legal authority at the level of the peace process and allows for broad notions of justice. A low level of involvement also delegates discursive authority from domestic actors to the ICC, but whether ICC discourses are accommodating of peacemaking depends on the indictment mode: warranted suspects compel the ICC to promote a discourse of marginalisation and capture, while summoned suspects allow for a Court discourse of assistance and conflict prevention.

The remainder of the chapter situates the investigation in its ideational, institutional and discursive context. It first discusses how the ‘new world’ of justice and peace came about through multiple global processes of practice, normative change and institution-building in the domains of conflict resolution, transitional justice and international criminal law. The chapter then zooms in on the peace-versus-justice debate (hereafter the peace/justice debate), conceptualising it as a meeting between two global discourses which shaped Ugandan and Kenyan peacemaking. This section maps three sets of discursive narratives about the effects of ICC involvement on peacemaking, which later chapters show as being influential in the exercise of agency over the two peace processes.

Origins: The ‘new world’ of judicialised peacemaking

The story of international justice has been told in several ways, with most accounts beginning with the Nuremberg trials. This section combines different developments in a narrative through which judicialised peacemaking emerges as the central problematique. These developments are the post-Cold-War practice of political conflict resolution, the norm of a duty to prosecute serious international crimes, the establishment of the ICC and the global and general legalisation of politics.

The political resolution of conflict

The post-Cold-War field of conflict has been characterised mainly by internal wars, involving insurgent and separatist armies, sometimes with foreign support from patronage states or diaspora groups. After 1946, conflict prevalence peaked in the early 1990s (Themnér and Wallensteen 2014).² There were 53 armed conflicts in 1992, after which they declined in number to reach an annual average of 34 in the 2000s (Wallensteen and Themnér 2012). Since 2010, war has increased, with 2015 seeing as many as 50 armed conflicts.

The post-Cold-War rise in internal conflict was initially accompanied by an increased use of political negotiations to end conflicts. Although negotiations did not always lead to a sustained peace, the 1990s represented ‘a larger shift from confrontation toward accommodation’ (Gurr 2000, 52), signified by ‘a proliferation’ of peace processes (Darby and Rae 1999, 46). Between 1990 and 2008, there was an average of almost ten peace agreements per year, with peaks of 19 and 18 agreements in 1990 and 1993 (Högbladh 2012, 49). Since 2008, there has been a marked decline in the number of peace agreements, even matching the Cold War levels of zero to two agreements per year. It is not clear why the past decade has seen this decline in peacemaking, but Högbladh (2012, 50) suggests it is explained by a change the international community’s attitudes.

The end of the Cold War led to greater international...

Table of contents

• Cover
• Half Title
• Contributor
• Title Page
• Copyright
• Table of Contents
• List of illustrations
• Acknowledgements
• Timelines of the Uganda and Kenya cases
• Abbreviations and acronyms
• 1 Introduction: International justice and the problem of peace
• 2 Studying ICC involvement: An analytical framework
• 3 ICC involvement in the Juba Peace Talks
• 4 Narratives, justice and the return to war
• 5 ICC involvement in the Kenya National Dialogue and Reconciliation
• 6 Political authority, justice and power-sharing
• 7 Impact of ICC involvement in Uganda and Kenya: A comparison
• 8 Conclusion: Understanding the judicialisation of peace
• Index