Peaceful Settlement in Uganda Jeopardized by ICC Arrest Warrants

The story coming out of Uganda bears emphasis for its impact on the ICC doctrine of complementarity. Under Article 17 of the Rome Statute, “the Court shall determine that a case is inadmissible where … [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” The ICC website indicates that “the International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute. A country may be determined to be “unwilling” if it is clearly shielding someone from responsibility for ICC crimes.”

So what happens when a country considers the option of granting amnesty as part of a peaceful settlement of a civil war? Is an approach of amnesty – together with a Truth and Reconciliation Commission – one viable approach to resolving such conflicts? Should that qualify as an “investigation” within the meaning of the “complementarity” doctrine? One would hope.

Which makes the news coming out of Uganda all the more alarming. The lead mediator, Betty Bigombe, is according to the Washington Post, “a dynamic Ugandan woman who is shunning her comfortable office at the World Bank headquarters and risking her life to bring peace to the long-suffering people of northern Uganda.” So when Bigombe (pictured above with rebel negotiators) this week expressed concern about the ICC arrest warrants, this should merit world attention. According to reports,

One does have the impression that the ICC prosecutor has not shown the better part of caution in issuing these arrest warrants at this time. How can you apply the Article 17 mandate of deference to national court proceedings when the government is in the process of brokering peace and deciding how to respond to the rebel forces by, among other options, considering a grant of amnesty?

The good news is that such arrest warrants may indeed provide a chilling effect for those contemplating the further commission of war crimes. That cannot be underestimated. But neither can one ignore the chilling effect that such arrest warrants may have on attempts to broker peace. War crimes may cease, but war will continue.