By: Richard J. Goldstone, Former Justice of the Constitutional Court of South Africa and First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia.

Before the death of Mummar Gaddafi of Libya in late October of this year, the International Criminal Court had issued warrants for his arrest and another sitting head of state – Omar al-Bashir of Sudan. The warrants provoked debate, not for the first time, on the relationship between peace and justice. There are some, particularly politicians, who strongly oppose the prosecution of alleged war criminals and especially during the heat of an ongoing war.

The real issue is not the prosecution of heads of state but the consequences of granting impunity to war criminals. Until the 1945 Nuremberg Trial of the Nazi leaders there had never been any substantial attempt to hold to account leaders who ordered or acquiesced in the commission of egregious war crimes. The post-World War II trials appeared for too long to be an aberration. It took almost half a century before the global community decided to advance the cause of international criminal justice. The Security Council, to the surprise of almost all observers, decided in May of 1993 to establish the first ever truly international criminal court – the International Criminal Tribunal for the former Yugoslavia (ICTY). In the following year the Council established a similar tribunal for Rwanda – the International Criminal Tribunal for Rwanda (ICTR).

The successes of the these two UN tribunals led to the establishment of what have been called the mixed or hybrid tribunals for Sierra Leone, East Timor, Cambodia and Lebanon. Most important, it led to the establishment of the International Criminal Court (ICC) that now has the support of 120 nations who make up the Assembly of States Parties that fund and ultimately supervise the ICC. The Assembly also elects the judges and Prosecutor.

In considering the relationship between peace and justice and the criticisms of the ICC from some African leaders, it is important to bear in mind how the seven situations presently before the ICC were referred to it. Three have been referred by their own governments, namely Uganda, Democratic Republic of the Congo and the Central African Republic. Two have been referred by the Security Council, namely Sudan and Libya. The sixth and seventh situations, Kenya and Ivory Coast, came to the ICC in consequence of the Prosecutor exercising the powers conferred on him by the Rome Treaty that established the Court.

The Security Council referred Sudan and Libya to the ICC using its peremptory and binding powers under Chapter VII of the Charter of the United Nations. In the case of Sudan, the States that are members of the Assembly of States Parties and Sudan itself are obliged by the terms of a Security Council resolution to comply with orders of the ICC including the arrest warrants issued against President al-Bashir and other Sudanese leaders. In the case of Libya, the Security Council resolution obliges every member of the United Nations to comply with orders made by the ICC including the warrants of arrest issued by it.

Since it established the ICTY, the approach of the Security Council has been the recognition that justice is a peacekeeping tool. Indeed, without making that link between peace and justice the Council would have lacked jurisdiction to have passed the relevant resolutions. They have all been issued under Chapter VII of the Charter and that confers powers on the Council to take action, including the use of military force, in order and only in order to remove a threat to international peace and security. It follows that if the Security Council was unable to establish war crimes tribunals as peacekeeping mechanisms it had no authority to establish them at all. Too frequently this crucial link between peace and justice is not acknowledged, recognized or appreciated, especially by political actors.

It is necessary to take into account three important reasons why the grant of impunity to war criminals jeopardizes both peace and justice. First, there is the necessity of providing justice for the victims. In the absence of the public acknowledgement of their victimhood many of them are not be able to begin their difficult healing process. Indeed, the ICC was established in order to bring justice for the victims and not to serve the political ends of powerful nations. Second, there is the deterrent effect that such prosecutions are likely to have upon other potential war criminals. In the cases of al-Bashir and Gaddafi the establishment of the ICC came too late – they had both been committing grievous war crimes for many years prior to 2002 when the temporal jurisdiction of the ICC began to operate. It is hard to believe that present and future leaders are and will not be concerned about following in the footsteps of Milosevic, Mladic, Bagasora, Charles Taylor, al-Bashir and Gaddafi. Finally, there is the reality that justice can assist peacemaking and facilitate an orderly and more peaceful transition from oppression to freedom and democracy.

The political dimension of international criminal justice cannot be over-emphasized. Without the requisite political will these international courts would not exist at all and without that will they cannot succeed. International courts are completely dependent upon political support for their success – they do not and will not in the foreseeable future have their own enforcement mechanisms. They will not have their own police force or army to enforce their orders and will perforce have to rely upon the cooperation of sovereign governments.

It is against that background that the role of the Security Council must be evaluated. It is the only organ of the UN that has the power to enforce its orders made under Chapter VII of the Charter. When it issues such orders its credibility and effectiveness is necessarily tested by its political will to ensure compliance by Member States. In the case of al-Bashir that resolve has been wanting. Sudan has consistently questioned the authority of the Security Council to refer it to the ICC and has refused to implement the arrest warrants issued by the ICC pursuant to the Security Council referral. The Council is empowered by the Charter to take enforcement action against Sudan. Even if the use of military force would be inappropriate or politically unwise, it could certainly impose sanctions or even introduce a blockade until the Government of Sudan changed its behavior. It has not done so – it has capitulated mainly in the face of a veto threat by China. Some African States failed to arrest al-Bashir when he visited their shores and the Security Council to its shame said nothing at all.

In the case of Libya, the Security Council acted with the positive support of all of its Permanent Members. They all voted in favor of the reference of the Libyan situation to the ICC. That Court issued an arrest warrant for Gaddafi, one of his sons and a third senior member of its government. Some in the African Union suggested that Gaddafi, rather than face prosecution, should have been given asylum in some willing African State. It is highly unfortunate that the African Union called upon its member states to ignore the ICC arrest warrant for Gaddafi. I would suggest that to have done so would have been disrespectful of the right to justice of the many tens of thousands of Gaddafi’s victims, unhelpful in bringing enduring peace to Libya and undermining of the authority of the Security Council.