Achieving Peace With Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms

Blackmail and extortion. That is how the Prosecutor of the International Criminal Court (ICC) characterizes the demands of the Ugandan rebel group, the Lord's Resistance Army (LRA). In peace talks with Uganda, the LRA refuses to end its violent insurgency unless it receives immunity from prosecution, including the withdrawal of ICC arrest warrants against its leaders. The LRA is notorious for atrocities including mutilating and killing civilians, often at the hands of children it has forcibly abducted into its forces. The ICC was created by statute to end impunity for the international crimes of genocide, war crimes, and crimes against humanity. But can it insist that states reject trading peace for justice when the cost of refusal is measured in human lives? The Ugandan-LRA peace talks raise profound issues regarding international criminal justice. The ability of the LRA to terrorize civilians has gained it a seat at the negotiating table, where it demands nonprosecutorial alternatives as a condition of peace. This apparent clash between peace and justice will arise again as the ICC investigates ongoing intra-state conflicts where peace deals are more likely to resolve conflicts than military victories. It is possible, however, to achieve both piece and justice. The ICC can ensure some measure of accountability for international criminals without blocking peace initiatives vital to ending atrocities. This article lays out how the ICC can maintain its legitimacy in the early stages of its existence while still promoting justice. It has two objectives. First, it offers a solution to a pressing problem at the ICC: how the ICC should respond to calls to drop the arrest warrants in favor of Ugandan alternative justice mechanisms. Second, it proposes a theoretical framework to apply to the inevitable reoccurrence of the peace versus justice dilemma at the ICC. Part I of this article describes the genesis of two conflicts - the conflict between the LRA and Uganda, and the resulting conflict between international prosecution and local justice. It explains the agreement to substitute Ugandan alternatives for ICC prosecution. Part II explores in detail the alternatives, a truth commission and a traditional reconciliation ceremony known as mato oput. Part III examines the interpretations of the ICC statute that would allow the ICC to defer to alternative methods of justice. Specifically, it evaluates four possibilities: (1) the acceptance of a U.N. Security Council request to suspend a prosecution as a threat to international peace; (2) the application of the ICC double jeopardy provision to block proceedings; (3) the exercise of prosecutorial discretion; and (4) the application of the principle of complementarity to render the ICC case inadmissible. Part IV proposes the theoretical framework for ICC deferrals to local justice. It sets forth criteria, based on international criminal justice theory and the literature on transitional justice, to guide the ICC in its determination. It elucidates the proposed standards by applying these criteria to the Ugandan situation. It first evaluates whether Uganda's adoption of alternative methods meets the threshold requirement that nonprosecutorial alternatives are necessary to end the conflict and legitimately supported by the people. It then assesses to what extent the Ugandan alternatives further the international criminal justice goals of retribution, deterrence, expressivism, and restorative justice. The presumption of the ICC is for prosecution, but if deferral to nonprosecutorial alternatives in Uganda can further both peace and the purposes of the ICC, the ICC should make an exception. Part IV concludes that the ICC should defer to Ugandan justice if the truth commission is properly crafted and the traditional clan-based mato oput process is properly adapted to deal with the current conflict. By furthering the overarching objects and purposes of the international criminal justice system, the ICC would preserve its legitimacy while allowing peace efforts to come to fruition. By requiring the alternative justice mechanisms to further accountability, the ICC will achieve peace with justice. An essay related to this article appears as Linda M. Keller, "The False Dichotomy of Peace versus Justice and the International Criminal Court (La fausse dichotomie entre paix et justice at la Cour penale internationale)," 3 Hague Justice J. 12 (2008); 3 Journal Judiciaire de la Haye 13 (2008) (available at http://ssrn.com/abstract=1340720).