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22 LJIL 99 (2009)
Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court

handle is hein.journals/lejint22 and id is 110 raw text is: Leiden Journal ofinternationalLaw, 22 (2009), pp. 99-126 Q Foundation of the Leiden Journal of International Law Printed in the United Kingdom doi:io. n7/SO92 2156508005657 Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court KENNETH A. RODMAN* Abstract The argument against factoring peace processes into the discretion of the ICC Prosecutor is based on the premise that international law canbe decontextualized from international politics and that in doing so will have superior consequences in terms of deterring atrocity and in consolidatingpeace. Thisviewis at odds with the history ofinternational criminal tribunals and the cases currently under reviewby the ICC. Those episodes demonstrate that the effectiveness of international criminal justice and its impact on peace are shaped and constrained by the political strategies of conflict resolution used by states and intergovernmental organizations to end criminal violence. Hence the Prosecutor should construe his discretion broadly to take account of the political context in which international criminal law has to operate. Keywords conflict resolution; human rights; International Criminal Court; international criminal law; prosecutorial discretion On 4 June 2007 Stephen Rapp, the Prosecutor of the Special Court for Sierra Leone, described the civil war in that country as among 'the ugliest scenes of viciousness in recent memory': Human beings, young and old, mutilated. Rebels chopping off arms and legs, gouging out eyes, chopping at ears. Girls and women enslaved and sexually violated. Children committing some of the most awful crimes. The exploitation of the resources of Sierra Leone used not for the benefit of its citizens but to maim and kill its citizens. The very worst that human beings are capable of doing to one another. This was the opening statement in the trial of Charles Taylor, the former president of Liberia. Although Taylor had never set foot in Sierra Leone, he was accused of having supported the Revolutionary United Front (RUF), a rebel group that had committed these atrocities to control the country's diamond resources. The trial - which is the first of an African head of state before an international tribunal - has been hailed as an important step in ending the culture of impunity in which tyrants and rebel leaders believe they will never be held accountable for their crimes. As Rapp noted in an interview with the Christian Science Monitor, 'The world has turned a page in * William R. Cotter Distinguished Teaching Professor of Government, Colby College, Waterville, Maine. I TheProsecutorofthe Special Court v. Charles Gankay Taylor, Prosecution Opening Statement, 4 June 2007, at 28, available at www.sc-s1.org/Transcripts/Taylor/4june2007.pdf.

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