Ocampo’s 2007 paper addressing the relationship of ICL to peace was entitled ‘Building a future on Peace and Justice’ (ibid). In selecting his title he was of course alluding to compromises used in the past to deliver peace, while granting amnesty to perpetrators (McDonald 2014). Given the foregoing discussion it is clear that aspects of justice may reside on either side of this question; some elements of justice may be delivered through strategies that emphasise peace deals while others will be emphasised through approaches that prioritise ICL. Where societies are attempting the difficult transition from war to peace, measures that focus on one aspect of justice alone may affect other justice-promoting interventions. As neither approach encompasses justice as a whole it would be more accurate then to characterise each by the focus of its emphasis, ‘peace vs. criminal justice’, or more accurately, ‘peace vs. criminal justice for the perpetrators of international crimes for whom ICC
warrants have been issued’.
As advocates for the Court will rightly point out, in a regional war the
beneficiaries of peace may be disproportionately identifiable in time and place (here and now); the beneficiaries of incremental advancement of international criminal justice through enforcement may be disproportionately remote and in the future. These difficult choices have been discussed by Rodman, who observes the position of Richard Goldstone (former Chief Prosecutor of the ICTR): ‘If you have a system of international justice, you’ve got to follow through on it. If, in some cases, that’s going to make peace negotiations difficult, that may be the price that has to be paid.’ (McGreal 2007; McGreal 2008; Rodman 2012: 62-64). Some will be troubled by the stark nature of this observation, but it reflects an intellectual honesty concerning the implications of the Statute. The ICC, on the basis of the Rome Statute and its interpretation, clearly prioritises the enforcement of retributive justice to address impunity of certain suspects over considerations of peace and security for communities.
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It is fair to observe that peace for amnesty deals may deliver a peace
agreement but no peace, or a negative peace in which injustice is sustained as the price of obtaining a cessation in violent conflict (Galtung 1996). Such distinctions are not trivial: insistence upon ending impunity for one perpetrator may prolong a war and risk further atrocities by any party; impunity for
international crimes may perpetuate a climate in which atrocities may be committed without regard to consequences and in which the most notorious perpetrators go free, apparently rewarded for their behaviour (Robertson 2006). In a consequentialist frame, each strategy may deliver just or unjust outcomes, and it is incorrect to associate broad justice goals exclusively with either
approach.
The calls for justice to be attained through military intervention that have been noted earlier are a clear example of the transfer of the concept of justice into the security domain (Buzan et al. 1998, Duffield 2001). This process is associated with the tolerance of practices that would not normally be acceptable, and such assertions may be tested using case study material.
Finally, ambiguity may be observed at the highest levels with regard to
statements concerning peace and justice. As the UN Secretary General stated, ‘Justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities. Approaches focusing only on one or another institution, or ignoring civil society or victims, will not be effective’ (Annan 2004). This statement may be intended to endorse ICC engagement, through noting the mutually
reinforcing agendas and thus echoing prosecutorial claims for the advancement of peace through international criminal law enforcement. However, by
emphasising the need for integrated approaches, sequencing, and the role of civil society, this account rests uneasily alongside the deontological imperatives set out in the Statute.
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In his paper, the former Prosecutor contends that peace and international
criminal law reside on the same side of the justice equation, essentially because peace with impunity is no longer permissible by law (Ocampo 2007a). For an international criminal lawyer who perceives justice as achieved through due legal process, ‘justice’ is not present if impunity is sustained. According to this view, peace attained by granting immunity to perpetrators of mass crimes is not a sustainable just peace or a legitimate means to a worthwhile goal. Thus, by asserting that these elements lie together he is in fact asserting the overarching paradigm of ICL—that where necessary peace should not prevail until
international criminal justice is done. In doing so, ICL prosecutors of this disposition are far from alone (AI 2002b; AI 2008; HRW 2009b; HRW 2010a; Benner and Prendergast 2011; Invisible Children 2013).
Others hold the view that justice and peace may broadly lie together, but for the opposite reason. Proponents of justice in its wider sense may view retributive justice for a handful of individuals as only one element of justice; they may see the cessation of military action by both sides as presenting a better opportunity for the advancement of peace. They may view non-military means as more effective or appropriate for the advancement of a just society, whether these be formal or structural societal mechanisms as proposed by liberal interventionists, or national (including legal) or local justice for other societal processes. For those individuals also, justice may reside on the same side as peace (Rodman 2006; Snyder and Vinjamuri 2007; Branch 2010b; Branch 2010c; Vinjamuri 2010; Rodman 2012).
Each side of this debate then makes the same claim—that justice and peace are—or at least can and should be—significantly aligned. However, they differ on what justice is (whether primarily the application of international criminal law, or a much broader concept), to whom it primarily applies (perpetrators and individuals as victims of international crimes, or communities and societies in an affected region), and how it may be achieved (whether through enforcement, or
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other means). There are thus considerable problems with the conceptualisation of a peace vs. justice dichotomy.