Justice in conflict: the effects of the International Criminal Court's interventions on ending wars and building peace

Justice in conflict: the effects of the International Criminal Court's interventions on ending... At the heart of Mark Kersten's book lies one notoriously difficult question: what are ‘the effects of the International Criminal Court's interventions on ending wars and building peace’? In making this the centrepiece of his analysis, Kersten attempts to shed new light on a conundrum that has become known as the ‘peace versus justice dilemma’ in international criminal justice—an ambitious undertaking given the complexity of the problem. In the first two chapters, Kersten presents the potential clash between justice and peace as one of the central challenges arising from judicial interventions by the International Criminal Court (ICC). The ICC, according to Kersten, is ‘an institution predisposed to intervening while conflicts are ongoing’ because it pursues criminal accountability in the midst of ‘ongoing and active conflicts’ (pp. 2–3). These international judicial interventions, however, do not always have positive effects on the dynamics of the underlying conflict. Rather, the experiences of judicial interventions have demonstrated that pursuing justice—especially during ongoing conflicts—can be detrimental to peace processes and prolong and exacerbate conflicts. Kersten is deeply unsatisfied with the framing of this debate as a trade-off between justice and peace, and in chapter three he proposes a new framework for analysing the effects of ICC interventions, which brings key elements of the study of peace processes into the ‘peace versus justice’ debate. His analytical framework has three closely linked aspects: first, the influence of ICC interventions on ‘conflict narratives’ (pp. 40–44); second, the impact of these narratives on the ‘attitudes and incentives of warring parties’ (pp. 44–7); third, the influence of the ICC on the dynamics of peace processes (pp. 48–63). This analytical framework, Kersten hopes, can guide further empirical studies and help scholars to ask ‘the right questions’ about the effects of the ICC on ongoing conflicts (p. 63). Kersten himself applies it to the cases of northern Uganda (chapters four and five) and Libya (chapters six and seven). In both, he finds evidence that the ICC bolstered already dominant narratives of a heroic party fighting an ‘evil’ enemy. Yet the impact of these narratives on the motivation of parties was very different in the two wars. In the case of northern Uganda, Kersten observes, it was in fact the skewed narrative of a ‘good’ government combating an ‘evil’ opposition that sparked the Lord's Resistance Army's ‘desire to set the record straight’ and ultimately brought its leaders to the negotiating table (pp. 79–84). In the case of Libya, on the other hand, the court's intervention helped to entrench the view that Gaddafi was an ‘evil’ that had to be eradicated and thus ‘lent the Libyan opposition and their international backers support in their ultimate aim to overthrow the Gaddafi regime’ (p. 121). In chapter eight, Kersten makes another important contribution to the scholarship on international criminal justice: here he presents the ICC as a ‘political institution with its own set of interests which influence its decision making’ (p. 168). In other words, he rejects the legalist illusion of courts acting beyond the dynamics of politics and insists on the role of the ICC as a political actor. Kersten's central claim is that the ICC's actions are guided by a negotiation between its own institutional interests—which determine the court's selection of cases as well as its targeting of particular individuals—and the interests of the political actors on whom the court depends. Kersten provides a compelling and perceptive examination of one of international criminal justice's most difficult conundrums. While it might disappoint hardnosed legalists, who expect sustained discussions of legal technicalities, Justice in conflict's cardinal virtue is that it situates the ICC within the broader ethical, political and legal environment in which world politics take place. So does the book resolve the ‘peace versus justice dilemma’? It does not, of course. It is remarkable, I think, that after having produced one of the most sophisticated recent studies on the debate, Kersten arrives at the following conclusion: there may never be a consensus regarding the effects of the ICC on peace, justice and conflict processes (p. 201). This, to be sure, is a rather agnostic stance, but it is also a realistic one. For as long as the ICC is determined to intervene in ongoing conflicts, the ‘peace versus justice dilemma’ will continue to haunt international criminal justice. The only way to address this problem, it seems to me, is to abandon the illusory hope for a permanent, abstract solution and replace it with a focus on practical, situational judgement in each and every individual conflict. © The Author(s) 2018. Published by Oxford University Press on behalf of The Royal Institute of International Affairs. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Affairs Oxford University Press

Justice in conflict: the effects of the International Criminal Court's interventions on ending wars and building peace

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Publisher
The Royal Institute of International Affairs
Copyright
© The Author(s) 2018. Published by Oxford University Press on behalf of The Royal Institute of International Affairs. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0020-5850
eISSN
1468-2346
D.O.I.
10.1093/ia/iix226
Publisher site
See Article on Publisher Site

Abstract

At the heart of Mark Kersten's book lies one notoriously difficult question: what are ‘the effects of the International Criminal Court's interventions on ending wars and building peace’? In making this the centrepiece of his analysis, Kersten attempts to shed new light on a conundrum that has become known as the ‘peace versus justice dilemma’ in international criminal justice—an ambitious undertaking given the complexity of the problem. In the first two chapters, Kersten presents the potential clash between justice and peace as one of the central challenges arising from judicial interventions by the International Criminal Court (ICC). The ICC, according to Kersten, is ‘an institution predisposed to intervening while conflicts are ongoing’ because it pursues criminal accountability in the midst of ‘ongoing and active conflicts’ (pp. 2–3). These international judicial interventions, however, do not always have positive effects on the dynamics of the underlying conflict. Rather, the experiences of judicial interventions have demonstrated that pursuing justice—especially during ongoing conflicts—can be detrimental to peace processes and prolong and exacerbate conflicts. Kersten is deeply unsatisfied with the framing of this debate as a trade-off between justice and peace, and in chapter three he proposes a new framework for analysing the effects of ICC interventions, which brings key elements of the study of peace processes into the ‘peace versus justice’ debate. His analytical framework has three closely linked aspects: first, the influence of ICC interventions on ‘conflict narratives’ (pp. 40–44); second, the impact of these narratives on the ‘attitudes and incentives of warring parties’ (pp. 44–7); third, the influence of the ICC on the dynamics of peace processes (pp. 48–63). This analytical framework, Kersten hopes, can guide further empirical studies and help scholars to ask ‘the right questions’ about the effects of the ICC on ongoing conflicts (p. 63). Kersten himself applies it to the cases of northern Uganda (chapters four and five) and Libya (chapters six and seven). In both, he finds evidence that the ICC bolstered already dominant narratives of a heroic party fighting an ‘evil’ enemy. Yet the impact of these narratives on the motivation of parties was very different in the two wars. In the case of northern Uganda, Kersten observes, it was in fact the skewed narrative of a ‘good’ government combating an ‘evil’ opposition that sparked the Lord's Resistance Army's ‘desire to set the record straight’ and ultimately brought its leaders to the negotiating table (pp. 79–84). In the case of Libya, on the other hand, the court's intervention helped to entrench the view that Gaddafi was an ‘evil’ that had to be eradicated and thus ‘lent the Libyan opposition and their international backers support in their ultimate aim to overthrow the Gaddafi regime’ (p. 121). In chapter eight, Kersten makes another important contribution to the scholarship on international criminal justice: here he presents the ICC as a ‘political institution with its own set of interests which influence its decision making’ (p. 168). In other words, he rejects the legalist illusion of courts acting beyond the dynamics of politics and insists on the role of the ICC as a political actor. Kersten's central claim is that the ICC's actions are guided by a negotiation between its own institutional interests—which determine the court's selection of cases as well as its targeting of particular individuals—and the interests of the political actors on whom the court depends. Kersten provides a compelling and perceptive examination of one of international criminal justice's most difficult conundrums. While it might disappoint hardnosed legalists, who expect sustained discussions of legal technicalities, Justice in conflict's cardinal virtue is that it situates the ICC within the broader ethical, political and legal environment in which world politics take place. So does the book resolve the ‘peace versus justice dilemma’? It does not, of course. It is remarkable, I think, that after having produced one of the most sophisticated recent studies on the debate, Kersten arrives at the following conclusion: there may never be a consensus regarding the effects of the ICC on peace, justice and conflict processes (p. 201). This, to be sure, is a rather agnostic stance, but it is also a realistic one. For as long as the ICC is determined to intervene in ongoing conflicts, the ‘peace versus justice dilemma’ will continue to haunt international criminal justice. The only way to address this problem, it seems to me, is to abandon the illusory hope for a permanent, abstract solution and replace it with a focus on practical, situational judgement in each and every individual conflict. © The Author(s) 2018. Published by Oxford University Press on behalf of The Royal Institute of International Affairs. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

Journal

International AffairsOxford University Press

Published: Jan 1, 2018

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