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Justice in Conflict: the ICC in Libya and Northern Uganda

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The London School of Economics and Political Science Justice in Conflict: The ICC in Libya and Northern Uganda Mark Kersten A thesis submitted to the Department of International Relations of the London School of Economics for the degree of Doctor of Philosophy, London. 8 September 2014. 1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 97,693 words. 2 Abstract The thesis examines the effects of interventions by the International Criminal Court (ICC) on peace, justice and conflict processes in northern Uganda and Libya. The 'peace versus justice' debate, wherein it is argued that the ICC has either positive or negative effects on 'peace’, has spawned in response to the Court's interventions into active and ongoing conflicts. The thesis is a response to and engagement with this debate. Despite often seeming persuasive, claims within the 'peace versus justice' debate have failed to set out a coherent research agenda on how to study the effects of the ICC's interventions on 'peace'. Drawing on theoretical and analytical insights from the fields of conflict and peace studies, conflict resolution and negotiation theory, the thesis develops a novel and nuanced analytical framework to study the Court's effects on peace, justice and conflict processes. This framework is applied to two specific cases: the ICC's interventions in Libya and in northern Uganda. The core of the thesis examines the empirical effects of the ICC on each case. Approximately 80 interviews were conducted with key figures in Libya, Uganda and at the ICC. In its comparative analysis, the thesis examines why the ICC has the effects that it does, delineating the relationship between the interests of states that refer situations to the ICC and the ICC's self-interests and arguing the negotiation of these interests determines who / which side of a conflict the ICC targets and thus its effects on peace, justice and conflict processes. While the effects of the ICC's interventions are ultimately mixed, the thesis aims to contribute to a more refined way to study the effects of the ICC and to further our understanding of why the ICC has the effects that it does. 3 Acknowledgements Thank you to all who shared a coffee or a beer over the past four years. To quote another PhD, without you I would have finished the thesis a year earlier. I owe a special thanks to friends who have been particularly close over the last four years: Anders, Dan, Daniel, David, Dion, Elke, Kelly, Lewis, Marga, Nyssa, Reble, Ribale, and Youyou. Because of you, I was able to take my work seriously but not always myself. Thank you to all my friends and colleagues in the LSE IR Department for the good times, the bad times and the hard times. It has been a wild ride and I would not have wanted to do it anywhere else or surrounded by anyone else. To the LSE, I hope that my soon-to-be-paid library fine of about 7 quid is the last time you reach into my pockets. I have enjoyed hobbling in iambic pentameter up your poorly conceived yet stunning library staircase. Thank you to everyone at the George IV which played the classic part of Cheers during the last few years. You were a welcome, if not always healthy, respite from the library and classroom. I would be remiss if I did not thank the contributors, commenters and readers of Justice in Conflict and its Twitter and Facebook accounts. Because of you, I have learned far more than I could have otherwise. #Thanx! I am also indebted to all friends and colleagues who read parts of the thesis and provided their invaluable feedback and encouragement: Paul Bradfield, Adam Branch, Mohamed Eljarh, Vicki Esquivel, Kate Cronin-Furman, Sophie Haspeslagh, Joe Hoover, Kevin Jon Heller, Paul Kirby Margarette Knorr, Ron Levi, Polina Levina, David Mendeloff, Elke Schwarz, Alana Tiemessen and Patrick Wegner. This thesis would not have been possible without the help of researchers, friends and colleagues at the Refugee Law Project and Lawyers for Justice in Libya. I owe a special gratitude to everyone at RLP who encouraged and propelled my fieldwork, in the process opening doors into pockets of life and knowledge I did not know previously existed. Doing a PhD at the LSE is no easy feat and it is made more difficult by the need to continuously find funding. The thesis was generously supported by the Social Science's and Humanities Research Council, The Middle East Centre and by various scholarships form the LSE International Relations Department. Without this support, the thesis would not have been possible. Thank you. My eternal and deepest gratitude go to my supervisors, Mark Hoffman and Kirsten Ainley, whose unwavering friendship and encouragement was the fuel that kept this project going. Thank you for having enough faith in the thesis and in me to never let my research become complacent or comfortable. Your supervision was the single best part of doing the PhD. Above all, I owe the greatest thanks to the love and support of my family: Gregory and Greta; Mik and Marta; Alicia and Clemens; Tula, Lukas, Kaia and Matthias; Olga and Staszek; Sonia, Dave and Malina. From the bottom of my heart and with everything I have, thank you. Mark Kersten, September 2014. 4 Table of Contents List of Acronyms 11 List of Tables and Charts 12 Chapter 1: Justice in Conflict Introduction 13 I. The ICC and the Emergence of the Peace-Justice Debate 15 II. The Politics of ICC Interventions in Ongoing and Active Conflicts 18 (i) Self-Referring Governments and the ICC 19 (ii) The Security Council Referrals and the ICC 21 III. Research Questions and Aims 23 (i) How should we study the effects of the ICC interventions? 23 (ii) What are the Effects of ICC Interventions in northern Uganda and Libya? 25 (iii) Why does the ICC have the effects that it does? 26 IV. Thesis Outline 27 V. Conclusion – Overall Contributions 33 Chapter 2: Peace and / or / with / versus Justice Introduction 34 I. No Peace Without Justice 35 (i) Ending Impunity 36 (ii) Marginalization / Stigmatization 37 (iii) Deterrence and Prevention 39 II. Peace First, Justice Later 44 (i) Instigating Violence 44 (ii) Undermining Peace Negotiations 45 (iii) No Substitute for Military Commitment 50 5 III. “Peace versus Justice” - An Unfair Judgement of the ICC? 52 IV. Conclusion: Re-Imagining the Peace-Justice Debate 55 Chapter 3: An Agenda for 'Peace' in the 'Peace versus Justice' Debate Introduction 56 Peace in the “Peace versus Justice” Debate 56 I. Conflict Narratives: From Causes and Dynamics to Good and Evil 61 II. The Attitudes and Incentives of Warring Parties 65 III. The ICC and Peace Processes 70 III.I. Getting to the Table: The Pre-Negotiation Phase 70 (i) Ripe Moments: The Timing of Peace Talks 71 (ii) Location of Negotiations 73 (iii) Mediation Strategies to Get Parties to the Negotiation Table 75 III.II. At the Table: The Negotiation Phase 80 (i) Delegation Composition 80 (ii) The Agenda 83 III. III. After the War: Post-Negotiation/Post-Conflict 83 (i) Was Peace Possible? 84 (ii) Implementation of Post-Conflict Justice and Accountability 85 IV. Conclusion: Breaking the 'Peace Versus Justice' Impasse 88 Chapter 4: The ICC and the Road to Juba Introduction 89 I. 'Good' Versus 'Evil' in Northern Uganda 92 (i) Good (the Government) Versus Evil (the LRA) 100 6 (ii) The Focus on Kony 102 (iii) Focus on Humanitarian Dynamics not Political Causes 104 II. Attitudes and Incentives 107 (i) Getting the LRA to Juba 107 (ii) Getting the GoU to Juba 110 III. The Pre-Negotiation Phase 113 (i) A Ripe Moment? 113 (ii) Picking Juba 115 (iii) Mediation Strategies to Get the LRA and GoU to the Table 116 IV. Conclusion: Getting Justice to Juba 120 Chapter 5: The ICC, Juba, and the Kwoyelo Trial Introduction 121 I. The ICC at Juba 123 (i) Delegation Composition 123 (ii) Justice on the Agenda 128 II. Was Peace on the Table? 132 (i) The GoU 132 (ii) The LRA 136 III. Justice After Juba 140 IV. Conclusion: The ICC, Juba and Beyond 145 Chapter 6: Peace, Justice and the ICC's Intervention in Libya Introduction 147 I. The ICC Enters the Arab Spring 149 7 II. Libya – A War of 'Good' versus 'Evil'? 153 III. Attitudes and Incentives of Towards Negotiating Peace 161 IV. From Civil War to a Peace Process? 168 (i) Mediation Strategies and Gaddafi's Fate 168 (ii) A Ripe Moment and Mutually Hurting Stalemate? 171 V. Negotiation Impossible 173 (i) The Opposition 173 (ii) The Colonel 175 (iii) Saif al-Islam Gaddafi 176 (iv) The African Union 179 (v) The Intervening Forces 180 V. Conclusion 182 Chapter 7 - Justice after the Revolution: The ICC and Post-Gaddafi Libya Introduction 183 I. Trying Saif and Senussi - In Libya or The Hague? 185 II. The Limits of Justice: Impunity for Opposition Crimes 196 III.
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