Ugandan peace talks underway in recent weeks appear to be moving close to resolution of the civil war that has raged for more than two decades (http://www.voanews.com/english/2008-03-02-voa1.cfm). Some of the credit for provoking the peace negotiations is given to the International Criminal Court. In 2004, arrest warrants were issued against five leaders of the rebel Lord’s Resistance Army (http://www.icc-cpi.int/cases/UGD.html). There is broad agreement that the threat of prosecution helped bring the fighters to the negotiating table. Of course, one of the reasons that they have come to the table it to deal with the threat of prosecution. The conundrum for the Court is that it wants to take the credit for helping to provoke peace negotiations, but it is not then prepared to make its own compromises in order to bring the peace process to its conclusion. Now, as the peace talks have reached a critical stage, the rebels have proposed a meeting with the Prosecutor of the Court. Yesterday, it was reported that he has refused to meet with them (http://www.voanews.com/english/2008-03-04-voa28.cfm).
The Prosecutor may decline to proceed in a case where this is not in ‘the interests of justice’ (art. 53 of the Rome Statute), but in a recent Policy paper he indicated that this concept did not include the ‘interests of peace’ (http://www.icc-cpi.int/library/organs/otp/ICC-OTP-InterestsOfJustice.pdf). In reaching this conclusion, the Prosecutor insisted that with the entry into force of the Rome Statute, there is a new legal reality. He suggested if justice is to be subordinated to peace, this will be the burden of others, such as the Security Council. ‘The issue is no longer about whether we agree or disagree with the pursuit of justice in moral or practical terms: it is the law’, he wrote.
This is a very dangerous time. Although compromising justice for peace is a galling prospect, above all because it breaches the rights of the victims of atrocities, sacrificing peace for justice has its own terrifying consequences. Some have said it would be a terrible blow to the Court if it were to contemplate withdrawing the arrest warrants in the interests of a peace agreement. But it may prove even more devastating to the Court, in the long term, if peace talks break down and there is a return to war because of its refusal to show some flexibility. Many more innocent victims may die in the weeks and months to come as a result of any prolongation of the war. It will be said that the Court bears some of the responsibility.