Arrest Warrants and Peace Processes: Reflections Following the Strasbourg Discussion

[Paola Gaeta is a Professor of International Law at the Geneva Graduate Institute]

For many years, I have worked on international criminal law, but I have only touched upon the interaction between arrest warrants and peace processes in earlier work. I also recall the debates following the arrest warrant against President Al Bashir and the African Union’s requests for a deferral under Article 16 of the Rome Statute (see for instance the Communique of the 142nd Meeting of the Peace and Security Council, 2008), which remained unanswered and generated tensions between the ICC and the AU (for a debate: ICC Forum, Africa and the International Criminal Court).

Against this background, moderating a recent panel in Strasbourg—organised by Switzerland as a CAHDI side event—brought these questions back into focus and prompted the reflections that follow. They do not seek to provide a faithful account of the discussion, but to identify some of the key legal points that emerged, to which I have added a number of personal considerations.

A first point concerns the relationship between peace processes and the pursuit of criminal justice. This issue has long been debated, but it acquires renewed significance in the context of the International Criminal Court (ICC), which has issued arrest warrants in situations of ongoing armed conflict, including against individuals whose participation in peace negotiations may prove necessary. (Euronews, 2025). One cannot deny that the pursuit of peace remains one of the central objectives of the international legal order and that and that ending violence is a core aim of any meaningful peace process. At the same time, as aptly noted in the literature, justice should not be understood solely in terms of criminal accountability, as this risks marginalising (S. Nouwen and G. Werner, ‘Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity’, 2014). In addition, peace and justice are often presented as competing imperatives, but the discussion confirmed the need to move beyond this framing. Both are central objectives of the international legal order, and the challenge lies in reconciling them in practice, particularly in contexts of ongoing conflict that call for both criminal accountability and negotiated solutions.

The challenge arises primarily at the operational level. States Parties to the Rome Statute that host, or facilitate, peace negotiations may face requests by the ICC to execute arrest warrants against individuals whose participation is considered essential to the process. Compliance with such requests—binding on States Parties—may prevent those individuals from travelling to, or remaining in, the State concerned, and thus from taking part in the negotiations. This creates a practical dilemma: whether to comply with obligations of cooperation under the Rome Statute or to enable the conditions necessary for meaningful peace talks. The issue, therefore, is not the existence of these obligations, but how they are to be applied in situations where their strict implementation may interfere with the conduct of peace negotiations.

This is an area that the Rome Statute does not expressly regulate and, arguably, one that it was not designed to regulate in detail. The Statute does not specify whether, and under what conditions, obligations of cooperation—such as the execution of arrest warrants pursuant to a request from the Court—may be adjusted in order to facilitate peace processes. To date, the Court has not squarely addressed this question in its jurisprudence. The issue has arisen in practice—notably in the context of the Kony/LRA peace negotiations—where the Prosecutor took the position that the arrest warrants should remain in force (OTP statement in relation to events in Uganda, 2008. In my view, there is a need to find solutions to what looks, in practice, as a gap: the Rome Statute establishes obligations of cooperation for States Parties, but provides only limited guidance on how to apply them in practice in a way that allows them to also pursue the objective of peace.

One might argue that a straightforward solution would be to hold peace processes in States that are not parties to the Rome Statute. However, as William Schabas has noted, the issue would arise if States of transit of the person under arrest warrant are involved, thereby potentially triggering obligations of arrest (The Insider, 17 October 2025). In addition, locating peace processes in States not parties to the Rome Statute does not, in itself, resolve the issue in conceptual terms. It may instead reinforce the perception that the ICC constitutes an obstacle to peace processes (Ian Paisley, ‘Peace Must not Be the Victim of International Justice’, The New York Times, 16 March 2012), while the underlying issue lies in how obligations of cooperation with the ICC are interpreted and implemented in context.

Some options exist within the Rome Statute. The first is adjusting the requests to execute arrest warrants, including on a temporary basis, in order to accommodate the requirements of peace processes. The Pre-Trial Chamber may, in appropriate circumstances, influence the timing and modalities of requests of cooperation to States Parties, including by effectively adjusting or delaying requests for the execution of an arrest warrant. In addition, as noted in the panel discussion, one shall refer to prosecutorial discretion. Article 53 of the Rome Statute allows the Prosecutor to decide not to investigate or prosecute where this would not be in the “interests of justice”, and to reconsider such decisions in light of evolving circumstances. While the Office of the Prosecutor has taken the position that the notion of  “interests of justice” does not encompass the interests of peace (Policy Paper on the Interests of Justice, 2007), the term may be interpreted as including the idea that in conflict situations, the Prosecutor arbitrates between the imperative of justice and the imperative of peace  (T. de Souza Diaz and D. Akande, Peace Negotiations as “Interests of Justice”, 2020) A more holistic understanding of justice could therefore support an approach in which considerations relating to peace are also taken into account.

Article 16 of the Rome Statute constitutes a further mechanism available within the ICC legal framework, allowing the UN Security Council to defer ICC investigations or prosecutions for renewable periods of twelve months. This mechanism reflects the recognition, embedded in the Statute itself, that considerations relating to international peace and security may justify a temporary suspension of proceedings. Yet, as practice has shown—including in the context of the arrest warrant against President Al Bashir—its activation remains contingent on the political dynamics within the Security Council, and therefore uncertain in situations where it may be most needed. Scholars have therefore highlighted both the structural limitations of the deferral mechanism and the need for a more effective and responsive use of Article 16, including through institutional reforms or a more flexible interpretation of existing provisions, including the aforementioned Article 53 (D. Akande, M. du Plessis, C. Jalloh, An African expert study on the African Union concerns about article 16 of the Rome Statute of the ICC, 2010).

Beyond the avenues provided within the Rome Statute, the issue calls for a broader methodological approach. The interaction between cooperation obligations and peace processes should be understood through systemic interpretation, as reflected in Article 31(3)(c) in of the Vienna Convention on the Law of Treaties. This method has been explored across legal regimes that perform different functions and, as highlighted by the ILC Study Group on Fragmentation, constitutes a useful tool to address the diversification of international law (Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006, Paras 410-480). In this respect, particular attention must be given to the position of the UN Charter within the international legal order, including its role in articulating fundamental objectives such as the maintenance of international peace and security, and its potential to inform the interpretation of obligations arising under other legal regimes. From this perspective, obligations of cooperation under the Rome Statute should not be considered in isolation, but must be interpreted in light of other relevant norms and objectives of the international legal order, including those relating to the maintenance of international peace and security under the UN Charter. Seen in this light, the issue is again not whether such obligations should yield to considerations of peace, but how they are to be interpreted and applied in a manner that preserves the core functions of the Court while remaining responsive to the broader legal and institutional framework in which it operates.

It is against this background that the following approaches discussed during the panel may usefully be understood.

The first concerns the possibility of granting safe passage to individuals subject to arrest warrant for the purposes of participation in peace processes. Comparable forms of protection exist in international law, for example in the context of diplomatic immunities. Although it has not crystallised as a general rule of customary law, in my view there is room to argue that safe passage may be considered as a general principle of international law that can inform the interpretation of cooperation obligations or be arranged through ad hoc agreements, subject to compatibility with Article 98(2).

Closely related to this is the potential role of immunity regimes, in particular those applicable to special missions and possible host country agreements, which may represent an opportunity to reconcile obligations of cooperation with the ICC and obligations to strive for the peaceful resolution of disputes, including by hosting peace processes. The jurisprudence of the ICC, in particular the Appeals Chamber judgment in Jordan Referral re Al-Bashir has determined that immunity ratione personae of sitting heads of States does not bar the request for the execution of arrest warrants addressed to States Parties, while leaving open more complex questions concerning the possible role of other forms of immunity, notably such as immunity of special missions to participate in peace negotiations.  It has also been suggested that, where peace negotiations are conducted under the auspices or with the endorsement of the UN, the legal framework governing the privileges and immunities of the Organization may become relevant—particularly in light of Article 105(2) of the UN Charter read in conjunction with Article 103 (see further A. Zimmermann, ‘Rome, Geneva, Budapest or … – Which venue for a possible meeting of Presidents Trump, Zelensky and Putin and the possible role of Art. 16 of the Rome Statute?’, EJIL Talk!, 2025).

Finally, the discussion highlighted the broader context in which peace and justice processes operate. A people-centred understanding of justice— one that reflects what justice means for affected communities—offers a useful lens. From this perspective, international criminal justice appears as one element within a wider set of responses necessary to support sustainable peace, alongside security, basic services, and locally grounded forms of dispute resolution. In conclusion, the relationship between obligations to execute arrest warrants issued by the ICC and the pursuit of peace through negotiated processes should not be approached in terms of rigidly opposed positions. It calls instead for context-specific solutions that remain faithful to the legal framework while allowing for its coherent application within the broader international legal order. As noted by Kofi Annan when serving as Secretary-General of the UN:

“justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how.”

(The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 2004, Para. 21)

What is required, therefore, is not a choice between peace and justice, but a sustained effort to articulate how they may be accommodated in practice.