Peace Negotiations and Conflict Resolution


There have been concerns expressed that criminal investigations and prosecutions by international tribunals may in some contexts complicate diplomatic efforts to resolve ongoing conflicts, including because of fears that leaders may be less likely to compromise or relinquish power if they anticipate that doing so could lead to criminal prosecution for their past conduct. Placing the power to investigate and prosecute in the hands of an international institution—particularly one that ostensibly makes decisions based solely on legal factors, rather than considering the larger political aspects of any negotiated settlement—can limit options for international negotiators and local communities trying to break cycles of violence or implement non-penal transitional justice programs. 

For example, in the period following the statement in the Prosecutor’s annual report on preliminary examinations that a decision on whether to pursue an investigation in Afghanistan was imminent, the Afghan government argued that, by moving forward with an investigation, the OTP could harm the then-ongoing peace process with Hezb-e Islami and its leader, Gulbuddin Hekmatyar.  Hekmatyar was implicated in heinous war crimes, yet he and other Hezb commanders and fighters had been offered a blanket amnesty as part of the negotiations for joining the peace process (with Hekmatyar’s name having been removed from the UN sanctions list and formally welcomed to the presidential palace).  Indeed, a condition of the peace talks with the Taliban that were conducted following agreement with the United States in February 2020 was the release of up to 5,000 Taliban prisoners. This strongly suggests a tolerance for some measure of impunity to bring over forty years of conflict in Afghanistan to a close that is in tension with the Rome Statute principle that atrocity crimes “must not go unpunished.”  Yet the international community has strongly supported this effort at peacemaking. Indeed, the communiqué adhered to by participants from sixty-six countries and thirty-two international organizations in connection with the Afghanistan Conference in Geneva in November 2020 welcomed developments in the peace process with no mention of the need for investigation or prosecution of those responsible for the war crimes that have been endemic in Afghanistan or of any need for Afghanistan to cooperate with the ICC. 

The Rome Statute includes two provisions that could be invoked to help manage clashes between potential ICC investigations or prosecutions and the imperative of negotiating resolutions of conflicts around the globe. First, the Rome Statute authorizes the ICC Prosecutor to consider whether she should decline to proceed with an investigation or prosecution because such an investigation or prosecution would not be in the “interests of justice.”  Second, the Security Council is empowered by Article 16 to defer any investigation or prosecution for twelve months (renewable) by a resolution adopted under Chapter VII of the UN Charter on the premise that such a deferral would contribute to international peace and security.  While they provide mechanisms to manage a conflict between the perceived interests of peace and justice, neither of these provisions fully addresses the concerns that may arise in particular cases given that those involved in peacemaking processes may well lack control over how these mechanisms will be used.

With respect to the “interests of justice,” an early Office of the Prosecutor policy paper interpreted the phrase in a way that vastly limits—some might say eliminates—the extent to which political considerations, including non-penal transitional justice mechanisms such as truth commissions or conditional amnesties as seen in South Africa and elsewhere, can be taken into account in a decision by the Prosecutor not to proceed with an investigation or prosecution.  Even if such factors could be taken into account, however, there would be no assurance that the Prosecutor would assess the risk to political negotiations in the same way as those involved in the negotiations, and no a priori reason to believe that the OTP’s assessment would be more accurate. That said, the Prosecutor has substantial discretion here and the relevant policy paper could be withdrawn or amended by the incoming Prosecutor. With respect to Article 16 deferrals, the fact that any of the permanent members of the Security Council could block a deferral means that those involved in negotiations cannot count on the Council taking the action that they consider necessary. Moreover, the fact that the Rome Statute contemplates such deferrals for periods of no more than twelve months at a time would make it even harder to assure the relevant parties that they could rely on the Council taking future action each year.

On the other hand, while some raise concerns that the ICC may be an impediment to peace deals in certain circumstances, many have argued that criminal accountability is a necessary ingredient for durable peace settlements, and the U.S. Government has recognized this in a range of cases.  There will be situations in which an external mechanism for justice such as the ICC can lead to more durable peace settlements, by ensuring that some measure of accountability does take place and removing the trials of senior individuals from fragile post-conflict environments.  The point here is not to decide which side of this debate has the better argument, only to show that this is an issue that can be of understandable concern to policymakers.