Withdrawing the Case of Uganda from the Jurisdiction of the International Criminal Court

By Sebastien Malo
Cornell International Affairs Review
2009, Vol. 3 No. 1 | pg. 2/2 |

Conclusion

This article has explored the role of the ICC in promoting impunity for violations of international criminal law in Uganda. As was discussed, the case of Uganda at the ICC exemplifies a perceived peace vs. justice dilemma that threatens to stall the debate on means to fight impunity in internal conflicts. Indeed, as negotiating peace to resolve protracted internal conflicts becomes more common and, in parallel, the ICC’s complementary jurisdiction compels states parties to the Court to commit to prosecuting international criminals, these priorities often seem to clash.

However, this article has shown that it is possible to evade the tragic difficulties of choosing between peace and justice. Indeed, the appearance of exclusive options is arguably no more than the result of an ideological choice. While all societies distinguish between good and evil, addressing this through the lens of retribution is one option among others. Another option that we have defended is the restorative paradigm of justice which appears to be equally valuable, if not more so than retributive justice in cases such as that of Uganda. Indeed, recent history has demonstrated that transitional societies benefit more from restorative means of justice which appears more sustainable than retributive justice. Moreover, restorative justice mechanisms often allow reaching the necessary political compromise to settle a peace deal. Political actors engaged in solving the conflict in Uganda have raised this debate to advocate that traditional Ugandan justice mechanisms provide benefits retributive mechanisms do not offer.

Further, mindful of the peace vs. justice dilemma, we proposed to discuss whether these alternative mechanisms of justice – TRCs and traditional justice mechanisms – could lawfully replace the ICC’s program of prosecution. To do so, it was necessary to explore the general international legal obligations regulating amnesties, since they provide a legal context to the alternative justice mechanisms discussed. After concluding that the general international legal rule does not clearly preclude amnesties, we looked at its statutory basis. We found that in the case of Uganda, the Rome Statute contains three mechanisms that could allow for the withdrawal of the case at the ICC: a Security Council deferral, a withdrawal on the basis of ‘interests of justice’, and a withdrawal following a challenge of admissibility on the basis of complementarity.

For all three mechanisms, we found that the case can be made that prosecutions can be dropped and substituted by alternative justice mechanisms. The mechanisms, however, place different conditions on the substituting domestic jurisdiction. First, the Security Council deferral only minimally discriminates between substituting accountability mechanisms of different value, offering little incentive for the domestic jurisdiction to raise its standards. Second, the ‘interests of justice’ clause compels the state employing alternative justice mechanisms to raise them to a certain standard, but only on the basis of unclear, and therefore weak, guidelines. Finally, the withdrawal of a case on the basis of a challenge of the Court’s complementarity offers a more significant contribution to justice. This is because complementarity can act as a catalyst, pressuring states to raise the standards of substituting domestic procedures – even quasi-judicial ones – to meet the criteria set out in the Rome Statute.

As a result of this, when complementarity is involved in conditioning the appropriateness of a withdrawal – based on article 19, or to some extent when dropping a case on the basis of article 53 – traditional Ugandan justice mechanisms do not meet the standards required to allow the Court to drop a case. Thus, under these scenarios, the case of Uganda would be maintained at the ICC. Alternatively however, a TRC could meet the necessary threshold to withstand scrutiny by the Court, and allow for the dropping of the case of Uganda. In this case, the Court would have much to gain. On the one hand, it can raise the global standard of justice for all cases where accountability is dealt with in non-prosecutorial ways. On the other hand, it furthers peace by bringing satisfaction to the victims, while holding their aggressors accountable.


Endnotes

  1. Sebastien Malo holds a Masters of International Affairs from the Graduate Institute of International and Development Studies in Geneva. He worked from the Department of Foreign Affairs and International Trade of Canada in 2008-2009, and is currently the Middle East and North Africa Editor for The Daily Star, a newspaper in Beirut, Lebanon.
  2. ––, ‘Ugandan peace deal in danger of collapse’ The National (Abu Dhabi 17 August 2009) accessed 6 September 2009; United Nations Department of Public Information, ‘Senior UN official warns of deadly dangers facing southern Sudan’ (11 September 2009) Press Release accessed 11 September 2009.
  3. Warrant of Arrest for Joseph Kony ICC-02/04-01/05-53 (8 July 2005, amended 27 September 2005); Warrant of Arrest for Okot Odhiambo ICC- 02/04-01/05-56 (8 July 2005); Warrant of Arrest for Dominic Ongwen, ICC-02/04-01/05-57 (8 July 2005). Since the warrants were issued, two of the individuals summoned by the court have been killed, leaving the court with three effective warrants of arrest. See ––, ‘Uganda: LRA Rebel Chief kills his Deputy’ The Monitor (Kampala 14 April 2008); Decision to Terminate the Proceedings against Raska Lukwiya ICC-02/04-01/05-248 (11 July 2007).
  4. Chandra Lekha Sriram, Confronting Past Human Rights Violations: Justice vs. peace in times of transition (Frank Cass, London 2004) 1-6.
  5. Human Rights Watch, ‘ICC Takes Decisive Step for Justice in Uganda’ (14 October 2005) accessed 15 February 2008; Amnesty International, ‘Government must back first ever arrest warrants by International Criminal Court’ (Press Release) (14 October 2005) accessed 14 February 2008.
  6. For instance, in early 2004, the head of the Uganda government’s Amnesty Commission joined members of Parliament and religious leaders from Northern Uganda in opposing the ICC investigation. ––, ‘Kony: Amnesty, not Arrest’ All Africa News (The East African) (27 January 2004) accessed 15 January 2008.
  7. LRA peace negotiating spokesman Ayo is quoted as saying: “If ICC drops the case, then we will sign the peace agreement and peace will return to northern Uganda.” See, ––, ‘Ugandan rebels refuse to sign peace deal while facing arrest warrants’ The Associated Press cited by International Herald Tribune (London 11 October 2006) accessed 12 April 2008.
  8. In a 2008 report, the Security Council suggested that the ICC drop the case against rebel leaders in Uganda, saying “[i]n the near future, the Council may […] be confronted with a request by the Ugandan government for the Council to grant a year-long suspension of investigation and prosecution by the International Criminal Court (ICC) in northern Uganda.” According to the report, Security Council members could vote, under the leadership of the United Kingdom, in favor of a one year deferral of the ICC prosecutions in the Uganda case. UNSC ‘Uganda/LRA’ (Update Report No 1) (11 April 2008).
  9. UNSC Presidential Statement 48 (2008) UN Doc S/PRST/2008/48
  10. See e.g. Mark Kelman, A Guide to Critical Legal Studies (Harvard University Press, Cambridge Mass. 1987).
  11. Mark A. Drumbl, Atrocity, Punishment and International Law (CUP, Cambridge 2007) 182-85.
  12. Drumbl 185.
  13. Manisuli Ssenyonjo, ‘The International Criminal Court and the Lord’s Resistance Army Leaders: Prosecution or amnesty?’ (2007) 7 Int’l Crim. L. R. 361, 371. (Ssenyonjo-a).
  14. Tim Allen, Trial Justice: the International Criminal Court and the Lord’s Resistance Army (African Arguments, Zed Books, London 2006) 133 (Allen-a).
  15. ––, ‘Peace First, Justice Later’ (2005) Refugee Law Project Kampala Working Paper No 17, 1, 24 accessed 12 April 2008.
  16. ––, Roco Wat I Acoli: Restoring Relationships in Acholi-land: Traditional Approaches to Justice and Reintegration (Liu Institute for Global Issues, UBC, Vancouver 2005) 74 accessed 12 April 2008.
  17. Tim Allen, ‘Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda’ in Nicholas Waddell & Phil Clark (eds), Courting Conflict? Justice, Peace and the ICC in Africa (Royal African Society, London 2008) (Allen-b).
  18. Phuong Pham et al., International Center for Transitional Justice and U.C. Berkeley’s Human Rights Center, ‘Forgotten Voices: a Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda’ (Report) (July 2005)
  19. See generally the seminal work of Priscilla B. Hayner, Unspeakable Truths (Routledge, New York 2001).
  20. Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, Boston 1999) 88-9.
  21. Charles Villa-Vicencio, ‘Why perpetrators should not always be prosecuted: Where the International Criminal Court and Truth Commissions meet’ (2000) 49 Emory L.J. 205, 211-14.
  22. Mark S. Umbreit, Betty Vos, Robert B. Coates & Elizabeth Lightfoot, ‘Restorative Justice: An empirically grounded movement facing many opportunities and pitfalls’ (2007) 8 Cardoso J. Conflict Resol. 511, 515.
  23. Umbreit, 515-16.
  24. Kent Greenawalt, ‘Amnesty’s Justice’ in Robert I. Rotberg & Dennis Thompson (eds), Truth v. Justice: The morality of truth commissions (Princeton University Press, Princeton 2000) 194-98. (Greenawalt-a)
  25. The grid of analysis of conflict resolution theory offers a fruitful point of entry into this debate. See e.g. David Lanz, ‘The ICC’s Intervention in Northern Uganda: Beyond the Simplicity of Peace vs. Justice’ (2007) Institute for Human Security Working Paper Series 1, 17-20.
  26. The term “domestic amnesty” refers to a national or municipal law which has the effect of discharging from criminal prosecutions. In that sense, the 2000 Amnesty Act declares an amnesty “…3. in respect of any Ugandan who has at any time since the 26th day of January, 1986 engaged in or is engaging in war or armed rebellion against the government of the Republic of Uganda by – 1. actual participation in combat; 2. collaborating with the perpetrators of the war or armed rebellion; 3. committing any other crime in the furtherance of the war or armed rebellion; or 4. assisting or aiding the conduct or prosecution of the war or armed rebellion.” Amnesty Act 2000 (Uganda).
  27. Traditionally, the duty to prosecute is seen binding states only, thus binding Uganda, but not the ICC who is neither a party to the relevant treaties, nor necessarily a subject of customary international law in this regard. Under modern international however, it is generally accepted that international organizations and especially bodies concerned with ensuring and developing the rule of law internationally such as the ICC, should abide by the relevant rules of international law. See e.g. Henry Lovat, ‘Delineating the Interests of Justice’ (2007) 35 Denv. J. Int’l L. & Pol’y 275, footnote 38; Naomi Roht-Arriaza, ‘Amnesty and the ICC’ in Dinah Shelton (ed), International Crimes, Peace, and Human Rights (Transnational Publishers, Ardsley NY 2000) 78.
  28. See for e.g., Christopher C. Joyner, ‘Redressing Impunity for Human Rights Violations’ (1998) 26 Denv. J. Int’l L. & Pol’y 591; Carla Edelenbos, ‘Human Rights Violations: A duty to prosecute?’ (1994) 7 Leiden J. Int’l L. 5; Naomi Roht-Arriaza, ‘Non-treaty Sources of the Obligation to Prosecute?’ in Naomi Roht-Arriaza (ed), Impunity and Human Rights in International Law and Practice (OUP, Oxford 1995); Diane Orentichler, ‘Settling Accounts: The duty to prosecute human rights violations of a prior regime’ (1991) 100 Yale L. J. 2537.
  29. See e.g. Denise Plattner, ‘The Penal Repression of Violations of International Humanitarian Law Applicable to Non-International Conflicts’ (1990)
  30. IRRC 414; Sonja Boelaert-Suominen, ‘Grave Breaches, Universal Jurisdiction and Internal Armed Conflict: Is customary law moving towards a uniform enforcement mechanism for all armed conflicts?’ (2000) 5 J. Conflict and Security L. 63. A competing view holds that, according to an emerging customary rule, certain crimes committed in non-international armed conflicts should be prosecuted on the basis of the same system of ‘grave breaches’ (codified in the Geneva Conventions and their Additional Protocol I) with which war crimes committed in international conflicts are prosecuted. See e.g. Antonio Cassese, International Criminal Law (OUP, Oxford 2008) 88. ;Faustin Z. Ntoubandi, Amnesty for Crimes against Humanity under International Law (Martinus Nijhoff Publishers, Leiden 2007) 132. A minority of commentators argue that a custom to prosecute crimes against humanity has recently developed. See Bruno Simma & Andreas L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A positive view’ (1999) 93 Am. J. Int’l L. 302, 310; M.Cherif Bassiouni & E.M. Wise, Aut Dedere Aut Judicare: The duty to extradite or prosecute in international law (Dordrecht, Boston and Martnus Nijhoff Publishers, Leiden 1995) 21.
  31. This section builds on the work of Jessica Keller, who conducted a discussion similar to the one undertaken. Keller, however, comes to a different set of conclusions. See Jessica Keller, ‘Achieving Peace with Justice: the International Criminal Court and Ugandan Alternative Justice Mechanisms’ (2007) Thomas Jefferson School of Law Legal Studies Research Paper No. 1018539 1,39 accessed 19 April 2008
  32. Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) U.N. Doc. A/CONF.183/9, art 16. The source of the power of the Security Council to defer proceedings before the ICC stems from its responsibility to maintain international peace and security. Luigi Condorelli & Santiago Villalpando, ‘Referral and Deferral by the Security Council’ in Antonio Cassese, Paula Gaeta & John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A commentary (OUP, Oxford 2003) 646. The responsibility to maintain international peace and security is enshrined in Article 24 of the UN Charter, which states: ‘In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’ This is further complemented by actions the Council may take under Chapter VII of the Charter when having determined the existence of a threat to peace, breach of peace, or act of aggression. Article 39 of the UN Charter States: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’ United Nations Charter (adopted 26 June 1945, entered into force 24 October 1945).
  33. Morten Bergsmo & Jelena Pejic, ‘Article 16: Deferral of investigation or prosecution’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Kluwer Law International, The Hague 1999) 377.
  34. United Nations Charter , art 103. Vera Gowlland-Debbas, ‘The Role of the Security Council in the New International Criminal Court from a Systemic Perspective’ in Laurence Boisson de Chazournes and Vera Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality: Liber Americorum Georges Abi-Saab (Kluwer Law International, The Hague 2001), 629-50.
  35. Bergsmo, 378.
  36. This opinion is defended by e.g., Yasmin Naqvi, ‘Amnesty for War Crimes: Defining the limits of international recognition’ (2003) 85 IRRC 583, 592; Darryl Robinson, ‘Serving the Interests of Justice: Amnesties, truth commissions and the International Criminal Court’ (2003) 14 Eur. J. Int’l L. 482, 502-03 (Robinson-a). For contrary opinions, See Jennifer J. Llewellyn, who makes the remark that the Security Council deferral is only valid for one year, and as a result does not resolve the question of the validity of an amnesty. Jennifer Llewellyn, ‘A Comment on the Complementarity Jurisdiction of the International Criminal Court’ (2001) 24 Dalhousie L.J. 192.
  37. Condorelli, 648.
  38. The UN Charter also requires that actions should be consistent with the purposes and principles of the UN, including the promotion and respect of human rights. United Nations Charter, art 24(2). Thus if preexisting law required prosecution, it is not clear that the Security Council could override it through a deferring resolution. As this is not clearly the case with the crimes at hand, a Security Council deferral would probably not breach this provision.
  39. Nick Grono, International Crisis Group, ‘Negotiating Peace and Justice: Considering Accountability and Deterrence in Peace Processes’ (Presentation at the International Conference on Building a Future on Peace and Justice in Nuremberg 2007) accessed 18 April 2008.
  40. It is the Court that has the responsibility to determine the admissibility of a case. The chapeau of Article 17 States that “…the Court shall determine that a case is inadmissible.” Rome Statute art 17.
  41. Rome Statute, art 19.
  42. See Decision on the admissibility of the case under article 19(1) of the Statute ICC-02/04-01/05-377 (10 March 2009) 11-12; 27.
  43. See Llewellyn, 202-04; Carsten Stahn, ‘Complementarity, Amnesties and Alternative Forms of Justice: Some interpretative guidelines for theInternational Criminal Court’ 3 J. Intl’ Crim. J. 695, 709-16; Claudia Cardenas Aravena, ‘The Admissibility Test Before the International Criminal Court Under Special Consideration of Amnesties and Truth Commissions’ in Jann K. Kleffner & Gerben Kor (eds), Complementary Views on Complementarity (TMC Asser Press, The Hague 2006). For a contrary opinion, see John Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’ in Antonio Cassese, Paula Gaeta & John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A commentary (OUP, Oxford 2003) 501-03.
  44. Rome Statute, art 17(1)(a).
  45. Llewellyn, 203; Stahn, 710-11; Darryl Robinson, ‘Comments on Chapter 4 of Claudia Cardenas Aravena’ in Jann K. Kleffner & Gerben Kor (eds), Complementary Views on Complementarity (TMC Asser Press, The Hague 2006) 144-45 (Robinson-b).
  46. Rome Statute, art 17(1)(b).
  47. Llewellyn, 203; Stahn, 712; Robinson-b, 144-45.
  48. Stahn, 712.
  49. Rome Statute, art 17(2).
  50. Stahn, 712.
  51. Rome Statute, art 17(2)(c). Stahn, 712.
  52. Rome Statute, art 17(2)(a).
  53. Sharon A. Williams, ‘Article 17: Issues of Admissibility’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Kluwer Law International, The Hague 1999) 393.
  54. Stahn, 714-15.
  55. Stahn, 715.
  56. Rome Statute, art 17(2)(c).
  57. Stahn, 714-15.
  58. UNTEAT Regulation No 2001/10, par. 27.7.
  59. Rome Statute, art 17(3).
  60. Cardenas Aravena, 135.
  61. ––, Roco Wat I Acoli, 55-6.
  62. ––, Roco Wat I Acoli, 64; Peace Women, ‘Perspectives and Experiences of Women in Northern Uganda in the ICC’ (Press Release) (23 November 2004) accessed 20 March 2008.
  63. Joanna R. Quinn, ‘Beyond Truth Commissions: Indigenous Reconciliation in Uganda?’ (2006) 4 The Review of Faith and International Affairs 31, 36.
  64. Joseph Kony appears to believe LRA atrocities were justified. He is reported to have stated: “If you picked up an arrow against us and we ended up cutting off the hand you used, who is to blame? You report us with your mouth, and we cut off your lips. Who is to blame? It is you!” Allen-a, 42.
  65. Allen-a, 166.
  66. Rome Statute, art 53.
  67. Article 53(2)(c) reads: “If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: … (c) 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; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 … of his or her conclusion and the reasons for the conclusion.” Rome Statute, art 53(2)(c).
  68. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 U.N.T.S. 331, 8 I.L.M. 679, art 31.
  69. Vienna Convention, art 32.
  70. See e.g., Human Rights Watch, ‘The Meaning of “the Interests of Justice” in Article 53 of the Rome Statute’ (Policy Paper) (June 2005) 3-4 < www.hrw. org/campaigns/icc/docs/ij070505.pdf> accessed 14 February 2008.
  71. Vienna Convention, art 32.
  72. Bergsmo, 709.
  73. Manisuli Ssenyonjo, ‘Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between amnesty and the International Criminal Court’ (2005) 10 J. Conflict & Security L. 405, 425.
  74. Gerhard Hafner et al., ‘A Response to the American View as Presented by Ruth Wedgwood’ (1999) 10 EJIL 108, 112. Darryl Robinson suggests on the basis of his presence at the negotiations that the lack of clear guidelines derived from the negotiation process is intentional. Robinson-a, 483. This hypothesis appears to be further confirmed by Philippe Kirsch, the Chairman of the Rome Diplomatic Conference. According to an interview with Mr. Kirsch, “… the provisions that were adopted reflect ‘creative ambiguity’ which could potentially allow for the prosecutor and judges of the International Criminal Court to interpret the Rome Statute as permitting recognition of an amnesty exception to the jurisdiction of the court.” Michael P. Scharf, ‘The International Criminal Court: Consensus and Debate on the International Adjudication of Genocide, Crimes Against Humanity, War Crimes, and Aggression’ (1999) 32 Cornell Int’l L.J. 521-22.
  75. See e.g. Robinson-a, 485-6.
  76. Arguably, the prosecutor has already taken a position on the question. Indeed, under article 53(1)(c), the prosecutor must preclude proceedings as early as before the investigation if this is not in the interests of justice. Rome Statute art 53(1)(c). Considering this was not done before the investigation of the situation of Uganda was carried out, the prosecutor implicitly affirmed that proceeding was in the interests of justice. The prosecutor’s analysis may however be re-opened at any time, under article 53(4), based on “…new facts or information.” Rome Statute art 53(4) For Morten Bergsmo and Pieter Kruger, these new facts “…would have to be of such a nature as to create the possibility that they could eliminate the former shortfall in the information which led to the decision.” Bergsmo, 714. Undoubtedly, in the event of an historical peace treaty in Uganda, the prosecutor could consider that a trade-off for amnesty qualifies in that regard.
  77. See e.g. Dugard, 486.
  78. Allen-a, 129. This is also a view the ICC has embraced in discussing its policy orientation. The ICC paper on policy issues published in late 2003 indeed notes: “The Prosecutor will encourage States and civil society to take ownership of the Court…,” and his office “…will take into consideration the need to respect the diversity of legal systems, traditions and cultures.” ICC-OTP, ‘ICC Paper on Some Policy Issues Before the Office of the Prosecutor’ (September 2003), 2-5 accessed 19 January 2008.
  79. Pham.
  80. Pham.
  81. Thomas Hethe Clark, ‘The Prosecutor of the International Criminal Court, Amnesties, and the “Interests of Justice”: Striking a Delicate Balance’ (2005) 4 Wash. U. Global Stud. L. Rev. 389, 408-09; Robinson-a, 497-98.
  82. Robinson-a, 497.
  83. Robinson-a, 500.
  84. Orentichler 2548; Juan E. Méndez, ‘Accountability for Past Abuses’ (1997) 19 Human Rights Quarterly 4.
  85. See e.g. Alexander K.A. Greenawalt, ‘Justice Without Politics? Prosecutorial Discretion and the International Criminal Court’ (2007) 39 N. Y. U. J. Intl’ L. 583. (Greenawalt-b)
  86. Greenawalt-b 599-600.
  87. International Criminal Court, Draft Regulations of the Office of the Prosecutor (3 June 2003) 47 accessed on 3 April 2008.
  88. Rome Statute art 53(3)(b).
  89. See Jann K. Kleffner, ‘Complementarity as a Catalyst for Compliance’ in Jann K. Kleffner & Gerben Kor (eds), Complementary Views on Complementarity (TMC Asser Press, The Hague 2006).
  90. Kleffner 84-8.
  91. Eric Blumenson, ‘The Challenge of a Global Standard of Justice: Peace, Pluralism and Punishment at the International Criminal Court’ (2006) 44 Colum. J. Transnat’l L. 801, 804-05.
  92. This initially raised some questions as to how it would impact an eventual challenge to the case’s admissibility under ICC jurisdiction. For many commentators the fact that the case of Uganda was not initially deemed admissible on the basis of Uganda’s judicial system’s unwillingness or inability, but rather because Uganda had willingly kept inactive and not initiated any proceedings, called for a different operationalization of complementarity. Indeed, when there is such a waiver of the state to exercise complementarity, it is unclear what consequences this should have on the state’s efforts to reclaim its primary jurisdiction. For Mohamed M. El Zeidy, the state may outright not be allowed to request a withdrawal of the case on the basis of complementarity. Mohamed M. El Zeidy, ‘The Ugandan Government Triggers the First Test of the Complementarity Principle’ (2005) 5 Int’l. Crim. L.R. 83, 108-09. On the contrary, suggests Payam Akhavan, this could rather result in that there may be no requirement for the reclaiming state to establish its willingness or ability as a precondition for the exercise of jurisdiction since this was not a concern in the first place. Payam Akhavan, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court’ 99 Am. J. Intl’ L. 403, 414. If these interpretations are confirmed, the complementarity principle may well lose its capacity to act as a catalyst for compliance. It is however unlikely that the ICC, who is the prime judge of when it should initiate the exercise of its jurisdiction under article 13 of the Rome Statute, will adopt such a limiting interpretation. The notion that the ICC admits cases on the basis of “inaction” as a sufficient basis for admissibility is cautioned by an interpretation of Article 17 developed in an informal expert paper prepared for the Office of the Prosecutor in 2003, in which experts developed the condition. The experts purport to find a third contingency in the two contingencies specified in Article 17(1)(a): “…the most straightforward scenario is where no State has initiated any investigation (the inaction scenario). In such a scenario, none of the alternatives of arts. 17(1)(a)-(c) are satisfied and there is no impediment to admissibility. Thus there is no need to examine the factors of unwillingness or inability; the case is simply admissible under the clear terms of Article 17.” ICC-OTP, ‘Informal Expert Paper: The principle of complementarity in practice’ (2003), paras 17-8 accessed 19 January 2008.
  93. Barney Afako, ‘Country Study V: Uganda’ in Max Du Plessis and Jolyon Ford (eds) Unable or Unwilling? Case Studies on Domestic Implementation of the ICC Statute in Selected African Countries (ISS Monograph Series, Institute for Security Studies, Pretoria 2008) 95.
  94. Afako 96.
  95. Robinson-a, 498-500.
  96. Christopher K. Penny, ‘Can Justice and Peace be Reconciled?’ The Role of International Criminal Law’ in Helene Dumont & Anne-Marie Boisvert (eds), La voie vers la Cour Penale Internationale: Tous les chemins menent a Rome (Editions Themis, Montreal 2004) 151.

Photos Courtesy of:

  • “Fire in Parabongo IDP camp, Uganda.” Wikimedia. 1 Nov 2009. http://commons.wikimedia.org/wiki/File:Fire_in_Parabongo_IDP_camp,_ Uganda.jpg
  • “Building of the International Criminal Court in The Hague.” Wikimedia. 1 Nov 2009. http://commons.wikimedia.org/wiki/File:Building_of_the_ International_Criminal_Court_in_The_Hague.jpg

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