Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions

12 Pages Posted: 4 Nov 2009 Last revised: 27 Mar 2017

See all articles by Eric S. Fish

Eric S. Fish

Yale University, Law School, Students

Date Written: November 2, 2009

Abstract

This Comment analyzes the unfortunate role that the ICC played in the Juba peace talks between the Lord's Resistance Army and the Government of Uganda between 2006 and 2008. Drawing on that saga, the Comment argues that the Rome Statute should be amended in the upcoming 2010 review conference in Kampala, Uganda to provide a greater opportunity for peace negotiations to succeed in situations where the ICC has issued an indictment against one party to those negotiations. The argument proceeds in three parts.

Part I provides a short diplomatic history of the Juba peace talks. It focuses primarily on the dynamics at work between the LRA negotiators, Ugandan President Yoseweri Museveni, and the ICC, showing how the ICC’s unwillingness to suspend its indictments against the LRA's leaders rendered negotiations intractable.

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 armed conflict. While eliminating the discretion to suspend an indictment increases the ex ante deterrent value of the ICC to potential war criminals, since they are unlikely to be deterred by a trial they can simply negotiate out of, 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 has empirically been large, the ICC ought to maintain robust prosecutorial discretion so that it can suspend indictments if credible peace negotiations begin. As presently written, however, the Rome Statute sharply restricts that discretion once an indictment has been issued.

Part III argues that the state parties should amend the Rome Statute to increase the pre-trial chamber’s discretion to suspend indictments. Specifically they should amend Articles 17 and 19 (which govern the admissibility of cases when countries’ domestic courts claim 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.

Keywords: Uganda, Lord's Resistance Army, International Criminal Court, Yoseweri Museveni, Joseph Kony, complementarity, international law, Luis Moreno-Ocampo, prosecution, international criminal law

Suggested Citation

Fish, Eric S., Peace Through Complementarity: Solving the Ex Post Problem in International Criminal Court Prosecutions (November 2, 2009). Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1498524

Eric S. Fish (Contact Author)

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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