The title of the chapter presupposes that there is a ‘justice without peace’
dilemma in the struggle for accountability. Justice defi ned is itself problematic, as argued above. In the context of international criminal accountability, it pre-supposes holding perpetrators of human rights violations accountable for their actions. States are required to ensure that criminal proceedings are instituted against those suspected of specifi ed violations of human rights, such as genocide, crimes against humanity and war crimes. Viewed from this perspective, justice is clothed in legal absolutism that requires a ‘duty to prosecute’.14
The retributive nature of international prosecutions is such that it is disin-terested in the contextual nature and immediate effect on peace processes. As such peace is considered to be in the ‘political realm’, far beyond the concerns of the international prosecutor in his prosecutorial work.15 The outcome of this
view is that the reality presented by international prosecutions is one that un-dermines quests for peace. International justice therefore ignores the picture of communities trying to pick up the pieces, of societies struggling to put their guns aside and of nations in the processes of healing. International justice is willfully blind. Within the ICC framework former ICC Deputy Prosecutor Serge Brammertz argues, ‘the priority of the Rome Statute is to prosecute … it’s not here for politi-cal stability’.16
The involvement of the ICC in confl ict areas has revived longstanding debates over whether transitional societies are most in need of peace or of justice. This is because of the fact that the peace-justice dilemma is acute in situations of ongoing confl icts where the possible outcome of decisions to prosecute could have the effect of either scuttling the peace processes or discouraging the re-linquishing of power by a dictatorial regime. In contexts where peace processes have hardly started, a threat of prosecution would discourage parties to a confl ict from seeking a peaceful alternative. Manfred Max-Neef competently argues the outcome of this tension between peace and justice as ‘the right on the one hand of the individual victim and society to demand prosecution and the need and right on the other hand of ordinary people to live in peace’.17
The existence of the dilemma is unfortunate, but this is made far worse by the fact that it has not benefi tted from a consensus on what approach to take.
On one hand the argument is: if prosecutions threaten to imperil a transition to democracy and peace, their potential value is outweighed by their attendant risks. Those who support this argument have warned against the ‘destabilizing consequences of a rigid legalism’18 and are referred to as ‘pragmatists’.
The ‘pragmatic approach’ taken is informed by the utilitarianism view that an action is just if its consequences are more favourable than unfavourable to all concerned. Outcome is more important than the rule. As such, arguing anything to the contrary would be suffering from ‘rule fetishism’ – the adher-ence to rules for their own sake. Kenneth Einar Himma summarises this in the argument:
To claim that there is a moral obligation to obey law qua law is to claim that a legal standard is morally obligatory ... because that standard is a law; in other words, it is to claim that a proposition of law is morally obligatory in virtue of being legally valid. Thus, someone who violates the law commits a moral wrong in virtue of performing an act that is inconsistent with the law.19
Proponents of this view contend that justice itself should be a subject of as-sessment on whether it is just or unjust. If the effect of the international justice mechanism is to increase aggregate wellbeing, then it is just; if its immediate and direct effect is to decrease aggregate wellbeing, then it is unjust.
Thus, rules promoting international justice are the proper objects of evalu-ation. The pursuit of international justice should be up to a limit where it will not undermine peace processes and/or reconciliation in the country in ques-tion. A corollary of this is when the prosecution of an individual is likely to lead to escalation of hostilities and undermine ceasefi re efforts, then prosecution efforts should be reconsidered.20 In this regard, the obligations to prosecute in international law should be circumscribed by wider societal values such as peace and reconciliation. As such, contrary to the popular view among human rights’
proponents, the issue of peace is not an isolated ‘political question’, but one that requires any organisation that makes decisions to prosecute ‘to grapple with appropriate roles and responsibilities and the proper weight it should attach to claims of peace, pluralism and punishment when they confl ict’.21
Whereas the ‘pragmatic view’ is increasingly coming into the limelight, the dominant paradigm is one of impunity: if the principal reason for prosecuting those responsible for crimes against the basic code of humanity is the perpetra-tors’ impunity, the task for international law and international organisations is to mount effective strategies against impunity. As summarised by Kenneth Rodman, ‘long-term stability, they claim, is more likely to come from an uncom-promising approach to criminal justice, in terms of both deterring gross human rights abuses and consolidating transitions to peace and democracy’.22
Within the impunity paradigm, the premise of requirement of prosecution of perpetrators of mass atrocities is located in the preamble of the Rome Statute, which is to ensure prosecution of ‘the most serious crimes of concern to the international community’ in order to ‘put an end to impunity for the perpetra-tors of these crimes and thus to contribute to the prevention of such crimes’.23 Supporters of the impunity paradigm further consolidate their argument by insisting that the only mention of peace in the preamble is ‘such grave crimes threaten the peace, security and well-being of the world’, concluding that peace is more likely to be achieved through prosecution than in staying the hand of the prosecutor.24
During the negotiations of the Rome Statute a number of states argued for the possibility of the inclusion of amnesties in the provisions of the treaty. In this
respect, the US circulated a ‘non-paper’ on amnesties, arguing that the prosecu-tion of internaprosecu-tional offenders must be balanced against the need to ‘close a door on the confl ict of the past era’. Proponents of the impunity paradigm argue that concern with peace and amnesties would mean that states would not be able to meet their international obligations to prosecute. This can entrench a sense of impunity.
The dilemma here is thus how to achieve peace and at the same time make justice available to the victims, without compromising on any of the two objec-tives. The dilemma is real and agonising, where doing nothing results in impu-nity and prosecution threatens the stability of countries.