Peace, Justice or Both? Prosecutorial Dilemmas Facing the International Criminal Court

This paper discusses the extent to which there is any conflict or harm in the ICC Prosecutor’s involvement in cases undergoing mediation by the international community, the majority of which occurred in Africa. The ICC Prosecutor’s discretion, as per the Court’s Statute, to hold a prosecution in abeyance in anticipation of the outcomes of mediating efforts which aim at ending a conflict is, at best, ambivalent. Recent practice suggests that stakeholders engaged in ending long-running African conflicts prefer the Prosecutor to decline to exercise jurisdiction in order to encourage the parties to reach some agreement. For obvious reasons, discussions on such matters are often held confidentially and not in the context of official debates. The African experience with the peace–justice nexus shows that the peace-versus-justice debate has not been resolved in favor of any camp. Even so, and in light of the ongoing Hamas–Israel mediation efforts, this paper suggests that no resolution process has been impeded by the indictment and prosecution of alleged offenders, and in equal measure, the withholding of prosecution has never culminated in effective conflict resolution.