Danielle E. Goldstone, Embracing Impasse: Admissibility, Prosecutorial Discretion, and the Lessons of Uganda for the International Criminal Court

• Citation: Vol. 22 No. 2
• Publication year: 2008

EMBRACING IMPASSE: ADMISSIBILITY, PROSECUTORIAL DISCRETION, AND THE LESSONS OF UGANDA FOR THE INTERNATIONAL CRIMINAL COURT

INTRODUCTION

Like any new institution, the International Criminal Court (ICC or Court) inevitably must suffer some youthful insecurity.¹With the eyes of the world on this international legal innovation, and the glaring lack of support from the superpower United States, there is much to both gain and lose by its first cases.

Many proponents are thus legitimately preoccupied with the Court's credibility.²The sacrosanct core of the Court's reputation is its independence and impartiality, as evidenced by the significant debate about prosecutorial authority that took place at the Rome Conference where the ICC's governing document, the Rome Statute, was adopted.³The drafters of the Rome Statute took considerable care to isolate the Prosecutor from political influence.⁴But they also carefully considered national sovereignty,⁵a deliberation that resulted in the compromise of complementarity, which gives national legal systems primacy over the ICC in cases where both have jurisdiction.⁶The interplay of prosecutorial authority and complementarity is complicated by the ICC's operation as an ex ante tribunal.⁷The Court acts in situations of ongoing conflict where it must negotiate with States pursuing efforts to resolve volatile political situations.⁸As such, the independent and impartial ICC Prosecutor, a position currently held by Argentinean Luis Moreno-Ocampo, must exercise his discretion in a precarious political context, the evolution of which may be influenced by the decisions he makes.⁹

Precisely such a situation has emerged in Uganda, the ICC's first referral by a state party and consequently a particularly significant test of the Court's viability.¹⁰For 20 years, civil war between Ugandan military forces and a rebel group known as the Lord's Resistance Army (LRA) has ravaged northern Uganda.¹¹The LRA is known for its abductions, particularly of children to serve as soldiers and sexual slaves, and for its brutal terrorization of the region's civilian population through murder and mutilation.¹²Ugandan soldiers have also committed atrocities, though of lesser frequency and gravity, according to Prosecutor Moreno-Ocampo.¹³After many failed attempts to squelch the rebellion militarily and to negotiate peace, the Ugandan government referred the case to the ICC in December 2003.¹⁴The drafters of the Rome Statute, however, seemingly did not contemplate that a state would voluntarily refer a situation within its own territory,¹⁵except perhaps where the state could not obtain a necessary extradition or piece of evidence from another state.¹⁶Nevertheless, the Prosecutor investigated the situation, and a year and a half later the Court issued indictments of and arrest warrants for five LRA leaders.¹⁷

After the indictments, the rebel leaders agreed to enter into peace talks with the Ugandan government, but they have demanded that the government persuade the ICC to withdraw the arrest warrants.¹⁸Past and current negotiations between the LRA and the government have contemplated amnesty and the use of traditional tribal justice and reconciliation rituals.¹⁹These substitutes for formal prosecution have been insufficient in the eyes of the Prosecutor, who has insisted that the ICC will not withdraw.²⁰But the ICC depends on Uganda, or other states parties, to execute the arrest warrants.²¹

Because ICC trials cannot be held in absentia,²²the Court is hamstrung until Uganda or another state arrests the accused and surrenders them to the ICC. For its part, Uganda has been unable to obtain the accused for the better part of

20 years.²³The ICC's involvement may have aided the arrest effort by contributing to neighboring Sudan's willingness to allow the Ugandan army to attack LRA camps within its borders, but the rebel leaders continue to elude capture.²⁴As a result, the situation has been at an impasse since the arrest warrants were issued in July 2005.²⁵

The situation has sparked much debate and commentary regarding how the ICC should handle this active tension between peace and justice, or restorative and retributive justice.²⁶One side of the debate, which includes Prosecutor Moreno-Ocampo, argues that international law and the ICC Statute obligate the

Prosecutor to push forward with the case and that there can be no peace without justice.²⁷The other side contends that peace is more important, and there will be no peace if the ICC does not step aside.²⁸The credibility of the Court seemingly hangs in the balance as all sides consider under what circumstances the ICC could give way and whether doing so would undermine its legitimacy.

Because the Uganda situation surely will not be the last to present such complexities,²⁹it is as important to consider how the ICC and Uganda arrived at this impasse as it is to contemplate the possible resolutions. Careful interpretation of the Rome Statute's provisions governing the admissibility of cases is crucial to both matters. This Comment reconsiders the admissibility of the LRA cases, reflecting on the political circumstances of the Uganda referral and the legal analysis that followed. The majority of observers have not questioned admissibility. Two commentators have concluded that the cases represent an ill-advised evolution of the admissibility requirements, which is likely to damage the Court's credibility.³⁰This Comment argues that the

Prosecutor mishandled the Uganda referral vis-à-vis the admissibility provisions, but that taking up a situation like Uganda's is not per se damaging to the Court's credibility. The independence and impartiality of the Prosecutor do not dictate that political considerations cannot factor into his decisions regarding investigations and prosecutions. In fact, the Court has its own political interests, which the Prosecutor should habitually consider and which are disserved by a narrow focus on prosecution.

This Comment begins, in Parts I and II, by examining the history of the conflict in northern Uganda, as well as that of the ICC's involvement and the questions it has raised. Part III considers whether the Uganda cases are admissible, arguing that the Prosecutor's interpretation of the admissibility provisions was not the only possible interpretation. His construal of the provisions potentially misguided him in this case, where a state referred a situation in its own territory, arguably to resolve a difficult political situation. This Comment suggests, however, that contrary to popular assumption, this use of the ICC as a political tool is not inherently problematic-in part because of the Court's own political interests, and in part because it has a strong legal foundation to govern its judicial activities. In light of this perspective on the referral and initial decisions of the Prosecutor, Part IV weighs the legality of the ICC withdrawing from or deferring the Uganda cases, contending that the legal vehicles are available if political considerations encourage deferral. It argues that taking into consideration the political interests of the Court, the impasse in Uganda is actually advantageous to both sides for the time being. When it ceases to be mutually beneficial, the Prosecutor will face tough decisions, which will force him to consider political factors; and the Court itself may face the legal ambiguity of the admissibility provisions. At that juncture, the Court will have to consider, in the light of the new reality of voluntary referrals, the legal significance of the differences between the Rome Statute's referral guidelines, which limit referrals to general situations, and its admissibility provisions, which allow challenges to specific cases. In doing so, this Comment argues, it should defer to complementarity. This was the principle that made the Court possible; it will also preserve the Court's credibility. The Comment concludes with an assessment of how the Uganda impasse should inform the Court's handling of such situations in the future.

I. THE WAR IGNORED BY THE WORLD

Under the presidency of Yoweri Museveni, Uganda has become widely recognized as a success story on the African continent, having established relative political stability, grown its economy, and stemmed the tide of HIV/AIDS.³¹But the war in the north remained largely unknown until the ICC referral introduced it to the world.³²The humanitarian situation in northern Uganda is now commonly acknowledged as "one of the world's most neglected crises,"³³a title earned from having festered in oblivion for the better part of two decades. In its resistance to the Ugandan government, the Lord's Resistance Army has terrorized and brutalized the civilian population. The LRA story has many remarkable elements, and the alleged atrocities are as extraordinary as they come-including forcing children to kill their own parents, crushing babies' skulls, throwing toddlers into fires, mutilating civilians, and abducting girls and young women into sexual slavery³⁴-but the plot line is a relatively familiar chronicle of regional civil war.

A. Political Upheaval, Transition, and Rebel Emergence

After gaining its independence from Britain in 1960, a highly divided Uganda experienced many years of turmoil. The country's first president, Milton Obote, was divisive and dictatorial, leading to his overthrow in 1971 by Idi Amin, who earned international infamy for his murderous regime.³⁵

Members of two Ugandan tribes, the Acholi and Langi, which had particularly suffered at the hand of Amin, left Uganda in the thousands and began organizing against the Amin regime, forming the Uganda National Liberation Army (UNLA).³⁶After Amin invaded Tanzania, the UNLA and other anti-

Amin forces, including a group led by current president Yoweri Museveni, joined forces with the Tanzanian army to overthrow Amin in 1979.³⁷Obote then regained power in an election widely accepted as rigged, and discontent...