Peace through complementarity: solving the ex post problem in International Criminal Court prosecutions.

• Author: Fish, Eric S.

In May 2010, the states parties of the International Criminal Court (ICC) will convene in Kampala, Uganda, for the first review conference of the Rome Statute. This conference comes at a vital time in the ICC's development, and there is much to reflect on. In the last two years the court has begun its first trial, issued its first warrant against a sitting head of state, and weathered scandals stemming from the alleged misbehavior of its prosecutor. (1) Yet arguably the most significant action the ICC has taken in those years involved Uganda itself. Between 2006 and 2008, the ICC played a key role in peace negotiations in Juba, Sudan, between the Lord's Resistance Army (LRA), a guerilla movement based in northern Uganda, and the Ugandan government. The biggest sticking point in those negotiations was the fact that the ICC had issued warrants against the LRA leaders, including its top leader Joseph Kony. The ICC's inability to suspend those warrants undermined the Ugandan government's negotiating position and may have contributed to the failure of the peace process and Kony's refusal to stop fighting. The states parties should take the opportunity presented by this conference to reflect on a major question raised by the Juba saga: whether the ICC should be able to suspend prosecutions for the benefit of peace negotiations. (2)

This Comment will analyze the role that the ICC played in the Uganda case and draw on that case to argue that the Rome Statute should be amended to provide a greater opportunity for peace negotiations to succeed in situations where the ICC has indicted one party to those negotiations. The argument proceeds in three parts. Part I describes the provisions of the Rome Statute that remove discretion to suspend indictments and then illustrates how that lack of discretion can harm peace negotiations through a short diplomatic history of the Juba peace talks. Part II shows how the Uganda case is one example of the unique ex ante/ex post problems that arise in ICC prosecutions of active participants in the midst of armed conflict. While eliminating the discretion to suspend an indictment increases the ex ante deterrent value of the ICC to potential war criminals, doing so may also render it more difficult to end a conflict once an indictment has been issued by the court. Since the general deterrent value of the ICC is likely to be small, and its disruptive effect on peace negotiations large, the ICC ought to maintain robust prosecutorial discretion so that it can suspend indictments if credible peace negotiations begin. Finally, Part III argues that the states parties should amend the Rome Statute to increase the Pre-Trial Chamber's discretion to suspend indictments. Specifically, it argues that they should amend Articles 17 and 19 (which govern the admissibility of cases when countries' domestic courts have jurisdiction) to allow states to supplant ICC prosecutions with proceedings that fall short of criminal trials, such as truth and reconciliation commissions, in cases where doing so is vital to an ongoing peace process.

1. THE NO-DISCRETION RULE AND THE JUBA PEACE NEGOTIATIONS

   The Rome Statute gives the ICC prosecutor very little discretion to suspend or even prevent a case at any stage. (3) The prosecutor is obligated to pursue any case referred to him by the United Nations (UN) or any state party (4) unless he finds it unreasonable for one of the reasons laid out in Article 53 (for example, that there is insufficient evidence, that effective complementary proceedings have been initiated, or that it is against the interests of justice). (5) If the prosecutor objects for an Article 53 reason, that objection can be reviewed by the Pre-Trial Chamber, (6) either proprio motu (by its own motion) or by request of the referring party, and can also be withdrawn at any point by the prosecutor. (7) Once the prosecution goes forward and the Pre-Trial Chamber approves an indictment, the prosecutor loses all discretion to halt a case. At that point, a prosecution can only be stopped if (1) the UN Security Council passes a Chapter VII resolution to postpone it for a period of twelve months, (8) or (2) the Pre-Trial Chamber determines that the case is inadmissible under Article 17 because a state is genuinely prosecuting the crimes.

   This inability of the ICC prosecutor or the Pre-Trial Chamber to suspend a case after the indictment stage undermined the peace negotiations in Juba between the LRA and the Ugandan Patriotic Defense Force (UPDF). When the talks began in 2006, the two sides had been fighting for two decades and had collectively killed an estimated 100,000 people, (9) abducted over 30,000 people, (10) and committed widespread rape, sexual enslavement, execution, mutilation, and other crimes against civilians. (11) President Yoweri Museveni referred the LRA to the ICC in 2003 and the ICC indicted five LRA leaders--including Kony--and, in 2005, issued public warrants for their arrest. (12) Shortly after the talks began, Museveni offered full amnesty to the top LRA officials and requested that the ICC withdraw its indictments. (13) An ICC spokesman rejected this request, stating that "[t]he position of the court is that these warrants of arrest remain in force," and demanding that the arrest warrants against Kony and his lieutenants be executed as soon as possible. (14)

   In June 2007, the government and the LRA agreed that the LRA leaders would face trials in Ugandan courts as part of the final settlement. These trials would involve an alternative penalty regime with relatively light sentences that would "reflect the gravity of the crimes or violations; promote reconciliation between individuals and within communities; promote the rehabilitation of offenders; take into account an individual's admissions or other cooperation with proceedings; and, require perpetrators to make reparations to victims." (15) This arrangement was calculated to rule out ICC prosecution by making the case inadmissible under the complementary prosecution provision of Article 17, which provides that the ICC cannot bring a case if a state is willing and able to prosecute. As a government spokesman put it, "We know the ICC's main problem is the issue of impunity; we hope that once all agenda items are signed we will be able to go to them and present an argument that our agreement ensures that the commission of crimes in the conflict does not go unpunished." (16)

   The conflict between the ICC and the negotiating parties subsequently came to a head. On February 29, 2008, the Pre-Trial Chamber sent Museveni a letter asking how the agreement between the LRA and UPDF would affect the ICC warrants against Kony and his lieutenants. Then on March 5, Prosecutor Luis Moreno-Ocampo was reported to have reiterated that the ICC...