Rethinking the Tension Between Peace and Justice: The International Criminal Prosecutor as Diplomat

Abstract

“Using the war in Afghanistan as a backdrop, this paper asks: in deciding whether to investigate or prosecute possible war crimes, should the Prosecutor of the International Criminal Court take into account the possibility that her actions might jeopardize ongoing peacemaking efforts? The Office of the International Prosecutor has claimed it should not. A 2007 Policy Paper narrowly construes the “interests of justice” provision of Article 53 and then suggests that the Prosecutor should be exclusively concerned with enforcement of the law and should ignore the possible impact her prosecutorial decisions may have on broader concerns relating to peace or reconciliation. This essay counters that narrow view of the Prosecutor's institutional role under the Rome Statute. I argue that the Prosecutor should not ignore the tension between the pursuit of peace and the pursuit of justice, but instead must diplomatically manage this tension. It is both prudent and proper for the Prosecutor to take into account the interests of peace, if not under Article 53 then in two other ways: (1) in exercising the Prosecutor's broad discretion to control timing - i.e., by choosing when investigations and prosecutions should begin; and (2) by embracing a policy of proactive complementarity until Article 17 and encouraging member states to pursue crimes on their own. The essay concludes by providing a set of practical guidelines the *146 Prosecutor should follow in managing the tension between peace and justice. While the Prosecutor should not explicitly bargain with offenders or acknowledge the validity of blanket amnesty programs, the Prosecutor has other more subtle means to minimize the risks that her actions will unduly jeopardize peacemaking efforts.”