Last week, Mark and I both expressed our opinions of the controversy in Northern Uganda, where a proximate peace accord is being stalled by rebel leader Joseph Kony’s insistence on immunity from ICC prosecution. Though there are no new developments in the stalemate, I wanted to share the well-reasoned opinion of Kevin Jon Heller, a blogger at the peerless Opinio Juris. Rejecting his colleague Julian Ku’s assertion that “the ICC really is now the obstacle to peace,” Kevin gives his take on how to navigate out of this morass.
It seems to me that the answer lies in the ICC’s principle of complementarity. Given that ordinary Ugandans favor traditional justice for low-level perpetrators and criminal prosecution for high-level perpetrators, the Court should insist on two things: (1) that the Ugandan government and the LRA revert back to their original plan to try Kony and the other LRA leaders in Uganda’s High Court; and (2) that the Ugandan government revamp its criminal justice system to satisfy the principle of complementarity. At that point — and only at that point — should the ICC step aside.
The key, of course, is to reconcile Ugandans’ belief in the need to prosecute high-level LRA criminals with the deficiencies of the Ugandan justice system. While simply dropping its indictments would be devastating, the ICC could opt for a tactical delay, accepting a less-than-ideal solution in immediate term, but retaining the prerogative to bring Kony et al to justice at least eventually. This would both provide a viable option for the ICC and, as Kevin pointed out to me, give Uganda an opportunity to bring its courts up to the legal standards of the ICC.