The International Criminal Court's Role in Post-Conflict Transitions

This essay explores the International Criminal Court's (ICC) role in facilitating the transition of states from conflict to post-conflict scenarios. It examines the ICC's achievements, such as creating a global discussion on justice and deterring potential perpetrators of crimes against humanity, while also acknowledging its challenges, including dependence on international support and allegations of bias. The essay delves into the debate of 'peace versus justice' and argues for a path of peace via justice, highlighting the ICC's potential as a facilitator of peace. Using the 2007-2008 Kenyan post-election violence as a case study, the essay analyzes the ICC's involvement and the complexities of achieving justice in a transitioning state. The conclusion emphasizes the ICC's potential as an instrument of justice, advocating for a comprehensive approach that considers retributive, restorative, judicial, and non-judicial forms of justice.

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ROLE OF THE ICC, AND INTERNATIONAL CRIMINAL JUSTICE, IN ENABLING
THE TRANSITION OF STATES FROM CONFLICT TO POST-CONFLICT
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INTRODUCTION
The International Criminal Court and the International Criminal Justice are mandated
to investigate, and where they are warranted, they can try individuals that have been charged
with the gravest crimes. These crimes usually involve acts against international society or
rather crimes against humanity. Promoting peace and justice in warring societies is not an
easy task as they have to ensure that first there is peace and then go on to charge the
offenders. In most scenarios, the people who want to sit and discuss peace are the guilty ones,
and this brings in a significant roadblock in the roadmap in the transition of states from
conflict to post-conflict. It would be fair to state that the ICC has played a significant role in
resolving conflicts and helping countries to peace and justice in many places in the world.
Some authors and legal professionals, of course, disagree with the above statement and would
term it as an overstatement (Sriram, C. 2009, 305). They would instead portray the ICC and
the ICJ as neither an obstacle nor way to achieving peace and justice.
ACHIEVEMENT OF THE ICC IN POST-CONFLICT JUSTICE
It is almost evident that most people are against the ICC and its activities, but to the
fact that it exists, this is a considerable achievement. Superpower countries in the world have
not signed the Rome statute, and this is but an example of the criticism. Some of the criticism
is valid, but there is much misinterpretation of the role and mandate that the ICC has towards
the international community. Many leaders fear to appear before the ICC prosecution, and
this fear leads to entrenchment of culpable leaders. The ICC has its eyes and ears on the
ground, and this acts a deterrence to any leader or person that was to commit a grievous crime
against humanity.
The ICC has also achieved in shaping peoples demands. At the moment, the ICC is
the vanguard of global movements of people whether they are fighting for their human rights

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of even democracy. Criticism of the ICC came from powerful countries such as the United
States but is ironic how at the moment people from all over the world are demanding that
autocratic despots should be sent to The Hague. Research has it that recently protesters from
the Middle East and even Africa while demonstrating demand for people to be tried at The
Hague.
When it comes to achievements by the ICC in post-conflict justice, creating a global
discussion on matters, justice is yet the most significant achievement. There has been a
massive wake in violation of human rights globally and people knowing their rights being
able to advocate for them is a tremendous step towards achieving justice. Lack of knowledge
of rights has led to many regions suffering for long periods under repression and violence. In
the face of the ICC people who thought they were untouchable find themselves in the face of
justice. As we are going to discuss, there are certain places where investigating grievous
criminal offenses becomes difficult because of the people involved. The ICC comes in handy
as it has no interest in the powers involved (Hayner, P. 2008, 336).
Despite there being achievements of the ICC in achieving post-conflict justice; there
are challenges that need to be addressed. These challenges pose the most significant risk yet
in the efficiency of the ICC operations. The challenges include;
1. Dependence on local and International support- the ICC depends on support from
both local and international society. There is no special police force of the ICC that
helps in arresting of suspects to be charged at The Hague. The ICC depends on the
governments involved to make arrests, protect investigators and witnesses. This
becomes an issue where the suspects are people in power.
2. Under international law, the ICC can only investigate matters that are in countries
that have signed rather subscribe to the Rome Statute. The International Criminal

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court was established under the Rome Statute and thus unless a country has
subscribed, the ICC will have no jurisdiction.
3. Allegations of bias and selective justice- questions have been asked if the ICC
conducts an impartial process when trying suspects in its court. A significant example
is the focus of crimes committed in Africa while they are entirely powerless to act
against the United States. Questions have been raised as to why the superpower
countries are not subscribers of the Rome Statute.
4. Sanctions towards the prosecutor to drop charges against suspects so that peace deals
can be made. As we are going to see in our case example and also in different
scenarios, the public, governments, and suspects usually sanction the ICC prosecutor
to drop charges and so that there can be peace talks and reconciliation. This has
proven to be an issue of a different magnitude in the eyes of the court.
On the good side, the ICC also has potential as an instrument of justice globally
despite the challenges it faces. On the eyes of justice, victims are essential in the
determination of whether justice has been achieved or not. Scholars now argue that if one
were to look through the victims' perspective, then it wouldn’t be far-fetched to argue that
Hague proceedings are a momentous advance when compared to ad hoc tribunals that were
held for crimes in countries like Rwanda and Yugoslavia. The court now allows participation
of victims in the trial process, and there is a trust fund for the victims, and this is a big step
towards post-conflict justice
Thus far, this research has proved that the ICC can be an instrument of justice, having
evaluated the challenges and the potential. However, can the ICC be an instrument of peace?
At the heart of scholarly debates, one cannot miss finding this topic. The primary question is
usually if peace and justice cannot go hand in hand and which comes first.

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PEACE via JUSTICE or PEACE versus JUSTICE
Can peace and justice exist in the same realm without the friction of which is better
than the other or which comes first? Going back to history, ‘peace vs. justice’ has always
prevailed. For instance in the 1980s, Chile and Argentina decided to amnesty military officers
rather than prosecute them. Their argument, of course, was that the amnesty given to them
would go a long way in promoting peace for an extended period. Other countries like South
Africa also took that path of amnestying people that confessed their crimes under the
Apartheid regime, and they believed that through this, they would heal and move forward.
Instead, they established Truth and Reconciliation Commission to promote peace in the
country (Minow, M. 1998, 50).
Well, time moves pretty fast, and recently there has been a shift away from that notion
of having to choose between peace and justice and looking at it from a perspective of a right-
minded person of the society we need both. It would not be fair to let go of crimes against
humanity in the name of wanting to remain peaceful. It would only be fair to take the road
that leads to peace via a justice position, and thus the role of the ICC towards peace is defined
(Clark, J. 2010, 103).
IS THE ICC AN OBSTACLE TO PEACE?
This will majorly depend on which side one is; a guilty person will sanction peace for
justice while an innocent is likely to have both. A good example is in Northern Uganda,
where the prosecutor issued a warrant of arrest against five LRA commanders who had been
granted amnesty. Of course, this drew criticism both from within the country and outside on
whether the ICC wanted a series of conflicts to arise (Scharf, M. 1999, 508). The real

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question, though, would be what will happen to that victim who has not received justice but is
living in peace? If one has committed criminal offenses and in this case with the ICC, we are
talking about grievous criminal offenses against humanity; should they go unpunished
because their punishment is a threat to peace? Gone are days where we have to choose
between peace and justice. The reality is that we need both peace and justice, and there is a
way of achieving both. Taking the road of peace via justice is substantially a prudent way to
live instead of sanctioning justice for peace. So the ICC does not undermine peace; it just
focuses on the fairest way of achieving peace. The bond of contention is in that when ICC
sanctioned the arrest of generals, this action is a threat to peace. This notion not only
conceptualizes peace to be a very narrow subject but also promotes fake peace in that the
peace being witnessed will only last for a short time (Macdonald, A., 2017,48).
THE ICC AS POTENTIAL FACILITATOR OF PEACE
Scholars argue that justice should be observed from different dimensions so that the
essential elements such as retributive, restorative, judicial, and non-judicial forms are
maintained. That is also to make sure that the criminal proceedings that take place in court
(ICC) are not short-sighted. The different forms of justice should not be alternatives rather
complement each other, and thus they should be or can be concurrently pursued. As Justice
A. Sachs would say, it would be loading too much on the International Criminal Cases if all
the cases were to be decided there rather for it to be seen as the sole mechanism to achieve
justice. As Bassiouni underlines,
‘Every post-conflict situation is sui generis and the prospects for the Court’s
investigations and prosecutions will vary in each case depending upon a number of
factors including the context and circumstances in which the crimes occurred,

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accessibility to evidence, logistical considerations and, above all, the political
willingness of the interested states in providing support to the Court’.
One would then ask, what should the ICC do to achieve post-conflict justice in a
conflicting state?
CASE STUDY OF ICC CASE; 2007-2008 KENYAN POST ELECTION
VIOLENCE
In evaluation of contribution of ICC in achieving justice in states transitioning from
conflict to post-conflict, I will use 2007-2008 Post Election Violence in Kenya. Kenya held
general rather presidential elections on 27TH December 2007, and after the elections the
Electoral Commission of Kenya declared the incumbent president Mwai Kibaki to have been
re-elected. Supporters of the opposition candidate that had lost elections accused government
of electoral fraud hence rejecting results. This conflict brewed protests and demonstrations
that later culminated to real wars; people fighting along tribal lines. The results of these wars
were deaths, injuries, and many people were displaced from their homes. The property was
also destroyed in considerable amounts (Rasmussen, J., 2018, 176-196).
Kenya failed to conduct criminal investigations against the main perpetrators that
caused the violence that was evidently against humanity. This failure led to this matter being
referred to the International Criminal Court, and the prosecutor began investigations. To
begin the prosecution, the then ICC prosecutor Luis Moreno Ocampo declared the
summoning of six individuals who were all accused of crimes against humanity. There was
opposition from the Kenyan government and the National Assembly, and they tried to appeal
to the United Nations Security Council to stop the prosecution. The suspects that were named

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by the prosecutor amidst this opposition cooperated with the ICC and attended the
proceedings as per the court. The main charges against the suspects were; murder,
deportation and forcible transfer of people, rape, sexual violence, and other inhuman acts
(Marsavelski, A. & Braithwaite, J.B., 2019).
To ensure that there was peace in the country so that all the other activities could
continue, there had to be a different approach. A concerted international push led by Koffi
Annan led the warring sides to come together and avoid more violence. A coalition
government was created with the two sides sharing the cabinet seats 50-50. Power-sharing
arrangements are not the only as other four commissions were established to look both into
the post-election violence and also into the future. Having achieved peace in this country, the
prosecution of the suspects continued as peace cannot exist without justice.
Scholars argue that attainment of peace and justice are concurrent activities, and they
go hand in hand. This is true, but in the Kenyan scenario, things were different. After there
being tribal clashes in the country, there were many repercussions, and the warring leaders
had to come together and make peace. In the Kenyan history, that had been their worst tribal
clashes yet having experienced some in the year 1992. Peace was the first order of the day;
Koffi Annan came in as the mediator and helped the two sides discuss power-sharing terms
as power seemed to be the issue at that time. Some changes were introduced in the
constitution where the seat of a Prime Minister was created (Kent, L., 2018).
The two sides also shared cabinet positions equally. Through the intervention of the
ICC, there was the achievement of peace. The country that was in conflict transitioned to
peace, and this led to the prosecution of the suspects. The role that the ICC played in
achieving post-conflict justice is visible in the case of Kenya. They pursued both peace and
justice as it is supposed to be. The reconciliation commission that was created did not

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undermine the activities of the ICC and vice versa. It would be correct to mention that justice
takes a longer period to be achieved than peace, but just because there is peace does not mean
justice should not be pursued. That can be illustrated below where the ICC prosecuted the
Kenyan suspects for crimes against humanity (Corradetti, C., 2015, 257-272).
The case of Kenya provides a good case study of the ICC in its aim to achieve post-
conflict justice. There were challenges towards this, but in the end, it was all in the aim of
promoting peace and justice. First of all, there was a conflict in the country; this was not only
between the political leaders that were competing against each other but also the warring
communities and tribes. For the case of Kenya, different tribes were fighting each other,
committing evicting others, and committing all sorts of crimes against each other
(Cheeseman, N., Maweu, J. and Ouma, S., 2019).
The International Criminal Court does not just pop up from nowhere to start
investigating crimes as each country has a criminal procedure code to be followed. Time was
given to the country to conduct its investigations to prosecute the suspects. As time went by,
this proved to be impossible as most of the people who were involved in the facilitation of the
crimes were people in significant positions in government. The International Criminal Court
then had to intervene and prosecute the suspects who were almost untouchable in the country.
The role of ICC comes clear in this case such that this court does not have other interests in
matters of prosecutions, and thus no one is untouchable to them. If this court had not
intervened, there may have been just some ad hoc courts that would be held, similar to those
that were held in Rwanda after the genocide (Dutton, Y., Dancy, G., Aloyo, E. and Alleblas,
T., 2017).
The news alone was a big deal to the country and to those who were going to be
prosecuted. There was opposition from all sides, but in the long run, the suspects had to clear

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their names of the ICC book; otherwise, they would face consequences of the same. The
suspects that had been named by the prosecutor cooperated amidst the opposition of the
whole process. At the time the trial began, some of the mentioned suspects were holding top
positions in the country, one being the president and the other being his deputy but still,
despite these top positions they both traveled to The Hague for trial. Different legal systems
in the world provide that the president cannot be prosecuted while still in office, but this was
a different scenario. The power of the ICC was defined in this scenario that a president left
his office to go for trial in a foreign country. With the prosecution of these suspects, justice
was seen to have been done (Mutahi, P. and Ruteere, M., 2019, 253-271).
In the modern world of transitional justice literature, there exists a crucial relationship
between peace and justice that must be considered at all times. As demonstrated by the ICC
in the Kenyan case, the two go hand in hand. One cannot pursue peace without justice, and
that is the reason why despite peace had regained in the country, the suspects had to be still
prosecuted. Lack of justice is a threat to peace, and one would say, justice must not only be
done but seen to be done. The road by the ICC to achieving justice by the International
Criminal court is challenging as there are several limitations of the institution as an
instrument of justice. In this case, though, it would be fair to credit the ICC for the many
achievements in resolving conflicts of different warring societies in different countries.
Kenya is one of the countries that have benefitted from the efforts of the ICC efforts in
attaining post-conflict justice (Vinck, P., 2019).
CONCLUSION
One prominent legal scholar once argued that the most favorable response to mass
atrocities should be found in idealism and cynicism. One or people should seek to find a

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carve between the two. The road to the contribution of the ICC towards achieving post-
conflict justice is full of obstacles, but we have to give the credit of having a distant vision
and looking at their scorecard so far, we have them to thank. We should also evaluate The
Hague by looking at the circumstances we would be facing if the institution was not around.
The ICC is not a perfect institution since it has its faults and challenges, but they have come
along a long way in contributing to International law. Jurisdiction is an essential matter in law
as one would not be tried in another country, but the ICC came in handy to solve that issue.

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References
Cheeseman, N., Maweu, J. and Ouma, S., 2019. Peace, But at What Cost? Media Coverage of
Elections and Conflict in Kenya. In Media, Communication and the Struggle for
Democratic Change (pp. 83-105). Palgrave Macmillan, Cham.
Clark, J.N. ‘The ICC, Uganda and the LRA: Re-Framing the Debate’, 69 African Studies
(2010) 141^160. 103
Corradetti, C., 2015. The Priority of Conflict Deterrence and the Role of the International
Criminal Court in Kenya’s Post-Electoral Violence 2007–2008 and 2013. Human
Rights Review, 16(3), pp.257-272.
Dutton, Y., Dancy, G., Aloyo, E. and Alleblas, T., 2017. Collective Identity, Memories of
Violence, and Belief in a Biased International Criminal Court: Evidence from
Kenya. Memories of Violence, and Belief in a Biased International Criminal Court:
Evidence from Kenya (August 7, 2017).
Hayner, P. ‘Negotiating Justice: The Challenge of Addressing Past Human Rights
Violations’, in J. Darby and R. Mac Ginty (eds), Contemporary Peacemaking:
Conflict, Peace Processes and Post-War Reconstruction (2nd edn., Hampshire:
Palgrave MacMilllan, 2008) 328^338, at 336.
International Criminal Court (ICC), Outreach Report 2009 (2009), available at
http://www.icccpi.int/NR/rdonlyres/8A3D8107-5421-4238-AA64-