The Prosecution Paradox: How the International Criminal Court Affects Civil War Peace Negotiations

Since the International Criminal Court (ICC)’s inception, observers have disagreed about how it would affect prospects for peace when it is involved in situations of ongoing conflict. Therefore, I ask, why do some of the civil war peace negotiations involving the ICC end with full peace agreements, while others end with resumed violence? I argue that how the Court affects the occurrence and outcome of peace negotiations is largely a function of the role that it plays in the situation. Due to its institutional design, the Court has the capacity to play either an oversight or a prosecutorial role in a conflict situation. Which role the Court actually assumes, however, is about more than its institutional design. I argue that what role the Court plays is conditioned by the combination of the formal nature of the Court’s involvement in the situation, the Court’s public relations approach, and the public statements of human rights and peace advocates about the Court’s involvement and normative commitments. To provide systematic evidence that the Court might play a dual role in peace negotiations, I conduct logistic regression analysis of 367 instances of peace negotiations to end civil wars. The results confirm that international prosecution either makes peace negotiations more likely to completely fail or more likely to end in a comprehensive peace agreement. To advance a theory that explains this finding, I present three qualitative case studies of peace negotiations in Uganda, Colombia, and Sri Lanka. These case studies suggest a fundamental paradox of ICC prosecution: the ICC has the potential to act as a guarantor of peace negotiations that is distinct among other international human rights promoters precisely because of its capacity to prosecute culpable leaders, but that when the ICC actually assumes the role of prosecutor, it becomes a spoiler of the peace. This suggests that if the ICC aspires to promote the interests of peace and justice in conflict situations where belligerents are attempting to negotiate peace, it should strive to play an oversight, rather than prosecutorial, role, and promote post-conflict justice broadly, instead of international prosecution specifically