ICC Watch: More Details on ICC-Uganda Understanding

This report gives a bit more detail to the non-agreement agreement between the ICC Prosecutor and the Ugandan leaders who visited the Hague last week. The statements by the ICC Prosecutor shows the limits of his discretion under the ICC Statute and, perhaps, why the ICC will always be a potential obstacle to settlement of an ongoing conflict. The ICC Prosecutor

As soon as there is a solution to end the violence and if the prosecution is not serving the interest of justice, then my duty is to stop investigation and prosecution…I will stop but I will not close…Timing is possible but immunity is not possible.

As a legal matter, I’m not so sure that the ICC Statute prohibits grants of immunity. Article 53(2)(c) appears to give the ICC Prosecutor a fair amount of discretion. It states that the ICC prosecutor may conclude there is not sufficient basis for a prosecution because:

A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime;

I’m no expert on the ICC Statute but interpreting this provision somewhat narrowly to exclude immunity seems about right. But such an interpretation is not obviously helpful toward settling the ongoing Ugandan civil war with the Lord’s Resistance Army because no matter what the Ugandan government does, the LRA leaders are going to be exposed to prosecution.