Greenawalt: Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court

Alexander K.A. Greenawalt (Pace Univ. - Law) has posted Complementarity in Crisis: Uganda, Alternative Justice, and the International Criminal Court (Virginia Journal of International Law, Vol. 50, No. 1, 2009). Here's the abstract:

In 2005, the International Criminal Court (“ICC”) issued warrants for the arrest of Joseph Kony, the leader of Uganda’s murderous Lord’s Resistance Army (LRA), as well as four other high-level LRA suspects. The warrants proved controversial when the fate of promising peace negotiations appeared to hinge on the ICC’s willingness to defer to Ugandan efforts to address LRA atrocities through alternative proceedings emphasizing truth-telling, forgiveness, and reconciliation over prison time. The episode presents a familiar dilemma of transitional justice that simultaneously exposes deep uncertainties in the ICC’s mandate. The Rome Statute’s imbalance is especially problematic because it undermines the rationale that has most powerfully justified the establishment of the ICC in the first instance: the argument that prosecution of international crimes is a fundamentally legal matter that must be entrusted to legal professionals and shielded from undue political interference.

This Article takes up this problem through a focused analysis of the ICC’s response to the Ugandan peace process. Its three principal claims are as follows. First, the ICC's Statute does not, in fact, provide meaningful guidance to the Court as it navigates the particular dilemmas of transitional justice in Uganda. Second, the development of ex ante guidelines to cabin prosecutorial discretion - a potential source of legitimation that others scholars have found attractive - is unlikely to adequately remedy the underlying legitimacy deficit and has failed to do so thus far. Third, and finally, legitimation of prosecutorial policy in Uganda may ironically rest in the hands of another actor - the UN Security Council - whose power the treaty creating the ICC sought to diminish.