03 Mar The ICC v. Peace in Uganda
As the Ugandan government and its rebel foes the Lords’ Resistance Army have inched toward a negotiated end to their 20 year civil war, I’ve been blogging rather obsessively over the possibility that the ICC arrest warrants would prove decisive in preventing an end to the conflict. But there were always other reasons why a peace deal in Uganda was out of reach, and it seemed unfair to blame the ICC alone. But the ICC really is now the obstacle to peace:
The Ugandan government and rebels from the Lord’s Resistance Army (LRA) have signed the last in a series of documents before a final peace agreement.
A government spokesman called it a major step towards peace in the north.
But only hours later, the LRA delegation, led by David Matsanga, stormed out of a meeting held after the signing ceremony late friday. The walkout spells the fragility of the peace efforts.
LRA leader Joseph Kony, who has been indicted, by the international criminal court (ICC), has said he will never sign the final agreement unless the indictment is lifted.
Look, peace may not be worth giving in to a murderous madman like Kony. And I think Kony may make a deal anyway, but if he doesn’t, the ICC has a tough decision ahead of it. The Ugandan government has pretty much done everything it can to accommodate Kony. But it cannot, repeat, cannot lift the ICC arrest warrants. Only the ICC can do that. Should they?
What prevents the ICC from lifting the indictment now, then re-indicting Kony at a later point?
Julian,
I’m just curious: if the ICC issues arrests warrants after a state self-refers a situation to it, do you think the Court should simply dismiss those warrants whenever the state in question decides they are actually an obstacle to peace? Or do you think it is fair for the ICC to wait until the state commits to prosecuting the suspects in a legal proceeding that would otherwise satisfy the complementarity principle? (Which the Ugandan courts do not, at least yet.)
Problems like these are why the ICC should not allow self-referrals.
Is the ICC blocking peace in northern Uganda? Much of the blame lies with the Ugandan Government, which referred the situation to the ICC (not least to “internationalise” the conflict and put pressure on the LRA) and for some time now has been saying one thing to the Court and external observers, and another to the LRA and its internal constituency.
On the other hand, the OTP has been eager, has indeed encouraged, self-referrals. Plainly, governments make self-referrals for political reasons and the OTP cannot realistically complain about this. However, it has allowed itself to be manovered into a position where it cannot but lose. If the OTP discontinues proceedings (and any such decision has to be approved by the Pre-Trial Chamber), then it will appear as a tool of the Ugandan Government. If it seeks to proceed, lacking any enforcement arm, the Court risks being seen as irrelevant.
To engage in shameless self-promotion, I predicted such a situation arising in an article published last year, available (for those who want to read it) here: http://www.austlii.edu.au/au/journals/MelbJIL/2007/7.html
The court will be seen as more relevant, not less, if it goes through with legal proceedings. The biggest challenge for the ICC is to avoid appearing to be a tool of governments. It needs to follow the letter of the Rome treaty and the procedures it is developing internally in order to be seen as legitimate.
Michael Gilligan wrote an interesting article in International Organization in 2006 arguing that the ICC does not need an enforcement arm in order to gradually come to deter human rights abuses. According to his formal theory model, what it provides is a legitimate alternative to asylum in third states for despots facing a coup. Knowing this, they will ramp down crimes against humanity. To achieve this, the ICC has to be seen as legitimate not by genocidaires but by others. It can do this only by adhering to its mandate.