Burke-White & Kaplan: Shaping the Contours of Domestic Justice: The ICC and an Admissibility Challenge in the Uganda Situation

William W. Burke-White (Univ. of Pennsylvania - Law) & Scott Kaplan (Univ. of Pennsylvania) have posted Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation. Here's the abstract:

In December 2003, the Government of Uganda referred the situation in conflict-torn northern Uganda to the nascent International Criminal Court. It was the first referral by a State Party under Article 14 of the Rome Statute of ICC and led to the indictment of five leaders of the Lord's Resistance Army (LRA). Four years later, Uganda found itself in the midst of promising peace negotiations with the LRA. A major obstacle to a final agreement was the refusal of the indicted leaders to face ICC justice. Seeking to peacefully resolve the conflict, the Government signed a preliminary agreement in which it would assume the prosecution of the indictees. Under the principle of complementarity embedded in Article 17 of the Rome Statute, the ICC cannot prosecute where a jurisdictional state has undertaken investigation or prosecution, unless the State's action is in an attempt to shield the accused from justice. However, with the case against the LRA leaders already deemed admissible, an admissibility challenge would be necessary to withdraw the ICC indictments. This paper examines the various and complex issues regarding both the nature of challenging admissibility generally and particular issues that arise from such challenges in the context of State self-referrals. The article proposes three different visions of complementarity as a means of understanding the boundaries within which the Court may situate a decision, and applies them to the hypothetical situation of an admissibility challenge to the LRA indictments. The options of both the indictees and Uganda are explored and the prospects for a successful challenge are examined. The paper concludes by suggesting a critical role for the Court in both resolving conflict and shaping the contours of acceptable domestic efforts to bring those responsible for grave crimes to justice.