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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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