A. Consequentialist Argument

From a consequentialist perspective, the ICC should select the course of action that will produce the best outcome.4 Under this theory, the ICC should carefully assess various courses of action, given limited information, and choose the action that will produce the most beneficial result. This would largely entail pursuing the course of action that produces a net social benefit in excess of opportunity costs.5 If the total consequences of prosecuting an individual would ultimately be dire rather than beneficial, prosecution should not be pursued.6 Accordingly, the ICC should base its decision to prosecute on the effects of prosecution, including whether it would result in further violence and atrocities or contribute to peace. Thus, one important consideration the ICC must weigh in making a calculated decision to prosecute is whether the course of action would result in less or more violence.

The costs of prosecution not only encompass administrative and judicial costs, but it also includes delaying peace efforts and contributing to long-term instability and violence.7 Under the consequentialist theory, the ICC should defer to alternative justice mechanisms in lieu of prosecution where there is a serious threat of increased violence and the costs of prosecution outweigh the benefits.

A critical restraint on effectively deciding whether to prosecute is the difficulty in accurately predicting the costs and benefits of such a decision. Consideration must be given to both short-term and long-term consequences. Prosecuting a war criminal may produce immediate dire consequences though this may be outweighed by its long-term benefits, such as securing peace. In other circumstances, prosecution may result in serious adverse consequences that may potentially lead to long-term instability and increased violence. Thus, it may be difficult to predict whether an ICC prosecution would deter a future would-be tyrant or incite him or other criminals to commit further atrocities. The paucity of information is one serious obstacle that the ICC Prosecutor must consider in evaluating the ultimate consequences of prosecution.8 Nevertheless, the ICC Prosecutor should defer to non-prosecutorial methods where the negative consequences of prosecution outweigh its benefits.

B. Appropriateness Argument

A countervailing theory to the consequentialist theory is the logic of appropriateness. Decision-makers are driven by rules of appropriate or exemplary behavior and they seek to fulfill the obligations of their role and the ethos, practices and expectations of their institutions.9 Under this theory, actors follow norms because they think it is the right or legitimate thing to do.10 Accordingly, there is an affirmative duty to prosecute because it is morally right. Whether the effects of prosecution negatively outweigh its benefits is immaterial in deciding the proper course of action.

Under this paradigm, achieving justice is essential in the international human rights context. The logic of appropriateness would require the Prosecutor of the ICC to adhere to prosecuting criminals regardless of the outcome or any policy consideration. Whether the outcome contributes to an increase in violence, which results in mass atrocities and bloodshed is inconsequential. The ICC Prosecutor should prosecute those individuals who have allegedly committed human rights violations because it is the legitimate thing to do. Thus, this theory rejects non-prosecutorial methods since it would usurp the functions of the ICC Prosecutor to achieve justice.

In order to maximize crime prevention, the ICC must strategically employ those methods that will contribute to this objective. Because the logic of appropriateness must be rigidly applied and no consideration is given to the effects of prosecution, the logic of appropriateness must be discarded and replaced with the consequentialist theory in deciding whether to prosecute.

II. Positive Complementarity

Positive Complementarity is the idea that the Office of the Prosecutor (OTP) and Chief Prosecutor should encourage states to prosecute domestically.11 The objective of positive complementarity is to strengthen domestic capacity, which arguably will have a long-term preventative impact.12 The ICC can effectively prevent atrocities by encouraging states to establish systems and institutions to try international crimes.

A. Prevention and Complementarity in the International Criminal Court

A criticism of the ICC is that it presumes that the perpetrators of armed conflict are rational decision-makers, and thus are deterred by the threat of prosecution.13 Because mass atrocities occur during a collapse in the public order, assuming perpetrator rationality may be unreasonable.14 Positive complementarity, on the other hand, seems to be a more effective strategy to adopt because of its long-term impact on national judicial systems. The ICC can foster respect for the rule of law both domestically and internationally by adopting positive complementarity and cooperating with states parties to facilitate “ICC-supported transnational networks dedicated to international criminal laws.”15 Over time, strong judicial institutions can stabilize societies by establishing norms that prevent impunity and uphold the idea that no one is above the law. This in turn can strengthen the principles of democracy and the rule of law in a society. Additionally, the ICC can turn to the international community—the UN and other State Parties—to increase diplomatic pressure or encourage individuals to denounce the violations that they might otherwise have ignored.16

B. Positive Complementarity Applied to Uganda

On December 16, 2003, President Museveni referred the matter of the Lord’s Resistance Army (LRA) to the ICC for investigation and prosecution for serious violations of international law.17 In January 2004, Chief Prosecutor Moreno-Ocampo opened an investigation in the region, and after a year-long investigation, the court issued warrants for Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya.18 Although the Ugandan government referred the matter to the ICC, they also promised amnesty for the leaders of the LRA on the condition they disarm and return home.19 The Ugandan government recommended a traditional reconciliation ceremony called “mato oput” in lieu of criminal prosecution.20

The indictments issued by the ICC against the LRA’s leadership have served to bring the LRA to the negotiating table and contributed to the progress of the peace negotiations.21 Since the matter was referred to the ICC, the violence has decreased in Northern Uganda though a peace agreement remains to be signed.22 The Government of Uganda has begun to implement a method to try the perpetrators for international crimes domestically as a result of the ICC’s involvement and demands by the LRA leadership that they not be prosecuted abroad.23 This process has thus far engaged a significant number of leaders in government and civil society whose involvement and outreach efforts can foster respect for the institution and trials that result.24 The “envisioned war crime division of the Ugandan High Court” will reflect Ugandan and international standards of justice and incorporate traditional justice mechanisms.25 Although the impact of this collaborative process between local leaders and international advisors remains to be seen, the OTP’s active engagement of States Parties seems to contribute to the progression of the Ugandan peace process “in both expanding the judicial system and engaging various parts of society in the process.”26 The ICC’s involvement in Uganda will be critical in fostering norms and standards that uphold the rule of law. Moreover, the establishment of a war crimes division will be one step in the right direction for establishing a stable judicial system and eventually a stable government.

III. Non-prosecutorial Methods

Victim communities seek justice in Uganda through traditional reintegration ceremonies whereas the ICC Prosecutor seeks justice through criminal prosecutions.27 Because the Rome Statute is silent on amnesty and truth commissions, the statute might allow sub rosa recognition of amnesty or other alternative justice mechanisms (AJM) in certain circumstances.28 Those circumstances consist of the following: (1) Article 16 deferral resolution, where the Security Council would require the ICC to suspend the Ugandan prosecution as a threat to international peace29; (2) Article 20 ne bis in idem, Ugandan AJM can be treated as prior prosecution blocking subsequent ICC proceedings30; (3) Article 53 prosecutorial discretion, which allows the Prosecutor to decline to prosecute in the interest of justice31; and (4) Article 17 inadmissibility,32 where Ugandan AJM would render the case inadmissible under the principle of complementarity.33

A. Alternative Justice Mechanisms

Through AJM the ICC can foster the rule of law in regions that have been torn by conflict and violence. This can in turn have a tremendous deterrent effect. One-size fits all justice does not seem to work where the threat of prosecution remains illusory. AJM may be a more effective measure in deterring criminal behavior because it would utilize traditional methods of justice, specific to a certain region or culture to accomplish the same objectives of the ICC—advancing justice and punishing criminals. Before deferring to AJM, the ICC must ensure that the AJM in question will accomplish the objective of crime prevention. The AJM must be assessed based on a two-part inquiry: (1) whether the AJM is per se legitimate, and (2) whether the AJM would be necessary to secure peace.

1. Uganda’s AJM

The threshold requirement of legitimacy focuses on whether the agreement is legitimate. Legitimacy requires the agreement to be promulgated by a democratically elected government or international body, rather than a government motivated by covering up its own international crimes.34 The AJM must represent the people and adhere to a principle of nondiscrimination. Additionally, the AJM should hold those culpable of perpetrating crimes responsible regardless of their status or affiliation to the government or a criminal organization.

The decision for Ugandan AJM appears to be legitimate because it was first proposed by Acholi leaders, rather than the government.35 Unlike the truth commission established in Uganda during the 1970s, it does not seem that the Ugandan government will adopt the AJM to protect itself.36 Ugandan AJM would represent the interest of the people, including the most marginalized segments of society which initially called for AJM.37 Additionally, Ugandan AJM seems to be widely supported by the Acholi and victims who desire truth commissions and mato oput.38 At the outset, Ugandan AJM seems to be a legitimate alternative to prosecution under the ICC.

Secondly, the Ugandan AJM is necessary to secure peace within the region. The replacement of ICC prosecution with AJM in the Uganda situation may be critical in furthering peace negotiations between the LRA and the government.39 The LRA maintains that before they can sign any peace deal the warrants against Kony and his top commanders must be dropped.40 Thus, Uganda’s request for the ICC to withdraw its warrants seems necessary to securing peace.

In attempting to secure peace, Uganda may implement various mechanisms. For example, a truth commission process such as that used in South Africa can serve to reveal the perpetrators of crimes and foster condemnation of those crimes and censure the perpetrators. South Africa’s Truth and Reconciliation Commission (TRC) model illustrates how public condemnation and reparations for victims can serve a deterrent effect.41 Accordingly, Uganda should consider a truth commission to morally condemn the crimes and the perpetrators through public disgrace, stigma, and censure, as well as incorporate reparations for the victims.42

Furthermore, Ugandan AJM may come in the form of mato oput, a traditional justice mechanism that combines shaming with a compensatory remedy. The “mato oput” ceremony requires that the perpetrator of the crime admit wrongdoing to the victim, ask forgiveness, and pay compensation.43 Given its communal origins, shaming is traditionally part of the Acholi culture, and is incorporated into mato oput.44 “The local shaming punishment might be as close to proportional punishment as an ICC sentence.”45 Mato oput is not without flaws as it would require perpetrators of crime, many being children soldiers, to pay compensation to the victims. Presumably, these children soldiers would not have any financial resources for victim reparations.

Despite these challenges, mato oput and the truth commission seem to be the best alternative for securing peace in Uganda while also advancing the principle of justice. For such mechanisms to have a deterrent effect, the truth commission report and the outcome of mato oput must be widely publicized. Similar to prosecution, it may be difficult to measure the actual deterrent effect of Ugandan AJM. Nevertheless, AJM achieves two important objectives: securing peace and advancing justice.

IV. Conclusion

In conclusion, the ICC should employ positive complementarity or defer to alternative justice mechanisms in order to maximize crime prevention. Under positive complementarity, the ICC can effectively prevent atrocities by encouraging states to establish systems and institutions to try international crimes. This in turn can foster a respect for the rule of law that will likely have positive long-term reinforcing effects. Furthermore, when prosecution would result in increased violence and bloodshed, the ICC should defer to alternative justice mechanisms. Consequently, both peace and justice can be achieved under these two methods.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 419 (2008). ↩

2. 2.

   Rome Statute of the International Criminal Court, Preamble, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩

3. 3.

   Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 Colum. J. Transnat’l L. 801, 819 (2006). ↩

4. 4.

   Id. at 823. ↩

5. 5.

   Id. ↩

6. 6.

   Id. at 824. ↩

7. 7.

   See Eric S. Fish, Peace Through Complementarity: Solving the Ex Post Problem in the International Criminal Court Prosecutions, 119 Yale L.J.1703, 1708 (2010). ↩

8. 8.

   Blumenson, supra note 3, at 828. ↩

9. 9.

   See James G. March and Johan P. Olsen, The Logic of Appropriateness 3-14 (Center for European Studies University of Oslo Arena Working Paper 2004), available online. ↩

10. 10.

    See James Fearon and Alexander Wendt, Handbook of International Relations, 60-63 (Sage Publications, 2002). ↩

11. 11.

    Katherine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21, 22 (Winter 2010), available online.. ↩

12. 12.

    Id. ↩

13. 13.

    Id. at 24. ↩

14. 14.

    Tom Farer, Restraining the Barbarians: Can International Criminal Law Help?, 22 Hum. Rts. Q. 90, 98 (2000). ↩

15. 15.

    Marshall, supra note 11, at 25. ↩

16. 16.

    Id. ↩

17. 17.

    Kimberly Hanlon, Peace or Justice: Now that Peace is being Negotiated in Uganda, Will the ICC Still Pursue Justice?, 14 Tulsa J. Comp. & Int’l L. 295, 304 (2007). ↩

18. 18.

    Id. at 304-305. ↩

19. 19.

    Hanlon, supra note 17, at 295; see also Manisuli Ssenyonjo, Accountability of Non-State Actors in Uganda For War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court, 10 J. Conflict & Security L. 405, 419 (2005). ↩

20. 20.

    Tristan McConnell, Uganda Sees Local Justice as Key to Peace, Christian Science Monitor, Sept. 8, 2006, available online (during the “mato oput” ceremony, “the perpetrator of a crime meets the victim, admits wrongdoing, asks for forgiveness, and pays compensation. The ritual ends with perpetrator and victim sharing a cup of sheep’s blood mixed with a bitter root.”) ↩

21. 21.

    See, e.g. International Crisis Group, Africa Report No. 124: Northern Uganda: Seizing the Opportunity for Peace (April 26, 2007), available online. ↩

22. 22.

    Uganda Violence: One of the World’s Most Neglected Crises, Reuters Alertnet, Sept. 17, 2009, available online (last visited May 11, 2011). ↩

23. 23.

    Michael A. Newton, The Complementarity Conundrum: Are We Watching Evolution or Evisceration?, 8 Santa Clara J. Int’l L. 115 (2009). ↩

24. 24.

    Marshall, supra note 11, at 26. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Jeffrey Gettleman, Uganda Peace Hinges on Amnesty for Brutality, N.Y. Times, Sept. 15, 2006, available online (last visited May 11, 2011). ↩

28. 28.

    Keller, supra note 1, at 238. ↩

29. 29.

    See Rome Statute, supra note 3, art. 16 (Deferral of investigation or prosecution: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect: that request may be renewed by the Council under the same conditions.”). ↩

30. 30.

    See Rome Statute, supra note 3, art. 20(Ne bis in idem: “3. No person who has been tried by another court for conduct also proscribed under article 6, 7, 8, or 8 bis shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.”). ↩

31. 31.

    See Rome Statute, supra note 3, art. 53 (“Initiation of an investigation […] 2. 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.”). ↩

32. 32.

    See Rome Statute, supra note 3, art. 17 (“Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”); see also William W. Burke-White, Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation, 7 J. Int’l Crim. Just. 257, 268-275 (2009). ↩

33. 33.

    Keller, supra note 1, at 238. ↩

34. 34.

    Mahnoush H. Arsanjani and W. Michael Reisman, The Law-in-Action of the International Criminal Court, 99 Am. J. Int’l L. 385, 393 (2005). ↩

35. 35.

    Keller, supra note 1, at 238. ↩

36. 36.

    Id. ↩

37. 37.

    Adam Branch, International Justice, Local Injustice: The International Criminal Court in Northern Uganda Disssent, Summer 2004, at 22, 24. ↩

38. 38.

    Kasaija Phillip Apuuli, The ICC Arrest Warrants for the Lord’s Resistance Army Leaders and Peace Prospects for Northern Uganda, 4. J. Int’l Crim. Just. 179, 183-185 (2006). ↩

39. 39.

    Julian Ku and Jide Nzelibe, Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?, 84 Wash. U. L. Rev. 777, 820 (2006); see also Reuters, Uganda Aide Criticizes Court over Warrants, N.Y. Times, Oct. 9. 2005, available online, (last visited May 11, 2011). ↩

40. 40.

    Uganda rebels in fresh truce, BBC, Jan. 12, 2009, available online, (last visited May 11, 2011). ↩

41. 41.

    Blumenson, supra note 4, at 865. ↩

42. 42.

    Alexander K.A. Greenawalt, Justice Without Politics? Prosecutorial Discretion And the International Criminal Court, 39 N.Y.U. J. Int’l L. & Pol. 583, 614 (2007). ↩

43. 43.

    Hanlon, supra note 17, at 306. ↩

44. 44.

    Keller, supra note 1, at 269. ↩

45. 45.

    Id. ↩