The balance of peace and justice is also not new to the global governance: the reality of this dilemma was considered in the past in the cases of Cambodia, Sierra Leone, South Africa and Uruguay, with the UN in some of the countries pushing and supporting peace agreements with amnesties in order to ensure peace and security.25
For the AU PSC it would be absurd to focus on peace and security without necessarily supporting institutions that contribute to accountability and rule of law. The task of accountability is more urgent in Africa than anywhere else in the world. This is informed by the sad history of Rwanda, Congo, Uganda, Sudan and more recently Kenya and Guinea. It is within this reality that the AU Constitutive Act indicates the commitment to the fi ght against impunity. Articles 3(h), 4(h), 4(m) and 4(o) of the AU’s Constitutive Act, read in tandem with the objectives of the AU’s Protocol Relating to the Establishment of the Peace and Security Council (The Protocol), commit member states to ensuring respect for the rule of law and human rights, and condemning and rejecting impunity. Pointing to this respon-sibility, the AU in recent communiqués on the ICC and Sudan indicated that: ‘The African Union has always emphasized its commitment to justice and its total re-jection of impunity, in line with the relevant provisions of its Constitutive Act.’26
Whereas the Darfur situation has benefi ted from the highest attention, it is the fi rst referral to the ICC relating to northern Uganda that posed the ‘justice without peace’ dilemma, which remains unresolved to date. The Court accepted the case on 28 June 2004, following a referral from the Ugandan president, Yoweri
Museveni, on 16 December 2003. Since then, religious leaders, tribal leaders and international NGOs have spoken against the decision by the ICC to issue indict-ments for the top leadership of the Lord’s Resistance Army (LRA). The paramount argument supporting this outcry was that arrest warrants would keep Joseph Kony and the LRA in the bush and away from the negotiating table.27 This con-tinues to be a sticking point in the ongoing peace talks between the Ugandan government and the LRA.
The context of the DRC presents its own unique strain on the peace and se-curity framework in Africa. Whereas at face value it might not pose a threat, a key issue of concern is the extent to which President Joseph Kabila could have utilised the functions of the Court in advancing his own ‘battle’. As such, the ICC could have been used as a system of ‘law fare’,28 where the Court is used to remove political competitors; as Erick Leonard and Steven Roach argue, the Court is used to ‘pay the political and economic costs of trying the perpetrators’.29 This has a clear risk of escalating confl ict between the warring parties.
To a high extent, the existing differences between the AU and the ICC are a function of the responsibilities of the two institutions at different levels. On one hand, the AU has a ‘positive responsibility’ as an international organisation to promote justice and accountability by supporting the efforts of the ICC.30 In the same spirit, the Court has a positive responsibility to bring to book perpetrators of genocide, crimes against humanity and war crimes. The AU also has a nega-tive responsibility to refrain from supporting action that presents a risk to peace security, whereas the ICC bears a negative responsibility to refrain from action that is not in the interest of justice.31
The logical outcome of these responsibilities is that the AU cannot be solely concerned with political dynamics, whereas the ICC cannot work on the as-sumption that it operates in a situation of political vacuum. The operation and functioning of the Court is based on the reliable enforcement of member states, a decision that is made through considerations of ‘state interests’. As one scholar argued, ‘effective authority in international politics requires power as well as le-gitimacy … the new court must rely on the good will of many states’.32
More importantly, the importance of considerations of peace has been in-corporated in the Rome Statute. Paragraphs (1)(c) and (2)(c) of Article 53 of the Rome Statute provide for the prosecutor to suspend or abandon an investigation or prosecution where there are substantial reasons to believe that the investiga-tion or prosecuinvestiga-tion ‘would not serve the interests of justice’. In interpretainvestiga-tion, the
possibility of including the need for peace in the ‘interest of justice’ framework has been contested. Some scholars argue that the prosecutorial discretion given by Article 53 provides an opportunity to ‘arbitrate between the imperatives of justice and the imperatives of peace’.33 However, most human rights organisa-tions have rejected this interpretation, a view that has eventually been adopted as policy by the prosecutor.34 In this regard the prosecutor maintains no compre-hensive or consistent approach at either the policy or operational level in relation to the accommodation of peace and security.
Specifi cally within the context of peace and security, Article 16 of the Rome Statute gives the UN Security Council the discretion to stay prosecutions in the in-terests of peace and security. In a resolution adopted under Chapter VII of the UN Charter, the Security Council can request the Court to suspend an investigation or prosecution for a renewable period of 12 months, based on considerations of international peace and security.35 However, article 16 is rooted within the wider bureaucratic international legal and political hegemony where the peace and se-curity interest of the AU might not be necessarily that of the Sese-curity Council.36
In this regard, immediately after the decision of the pre-trial chamber to issue a warrant of arrest for Sudan’s President Omar al-Bashir, the AU PSC noted that the decision came ‘at a critical juncture in the process to promote lasting peace, reconciliation and democratic governance in the Sudan, and underlines that the search for justice should be pursued in a way that does not impede or jeopardize the promotion of peace’.37 The PSC requested the UN Security Council to exer-cise its powers under Article 16 of the Rome Statute, which the Security Council failed/refused to exercise. It is in this respect that the AU Assembly in its decision on 3 July 2009 noted, ‘the unfortunate consequences that the indictment has had on the delicate peace processes underway in the Sudan and the fact that it con-tinues to undermine the ongoing efforts aimed at facilitating the early resolution of the confl ict in Darfur’.38 On this basis the AU took the decision not to cooperate with the ICC in enforcing the arrest warrant for al-Bashir.39
The decision taken by the AU not to support the indictment of al-Bashir is a clear response to the marginality of peace and security in the ICC decision-making framework. For the AU this was recognition of the existence of the justice without peace dilemma, with the AU arguing that ‘the search for justice should be pursued in a manner not detrimental to the search for peace’.40
Appreciating the dilemma between peace and justice in Africa, the key question that presents itself is whether the pursuit of justice through
international prosecution is necessarily helpful and desirable, considering the tension it presents in peace processes. This tension raises the point that there are limitations to international prosecutions in Africa. Conceived differently, the main issue is whether the goal of international justice can be separated from the realities of power politics on the continent.41