The ICC should not, as Opinio Juris suggests, be considered the “obstacle to peace,” at least not per se. It isn’t out of sheer haughtiness, of course, that the ICC could make a legitimate case for making Kony’s indictment a sticking point. As I’ve argued previously, peace and justice are deeply interrelated, and a circumscribed role for the ICC in Uganda could harm both these goals and the reputation of the ICC itself.
A few points:
1. As perhaps the most deserving poster child for an ICC indictment out there, Kony simply must be held accountable for his crimes.
2. The ICC’s charter allows it to suspend its jurisdiction only if the host country’s proposed prosecution is fully credible and meets international standards of accountability. While Museveni’s proposed use of traditional Ugandan justice seems more legitimate than, say, the kangaroo courts proposed by the Sudanese government to ward off ICC prosecutions there, it is still troublesome that Kony may escape any jail time whatsoever. A free and unpunished Kony will not only insult the ideal of justice, but could very well endanger peace and stability in northern Uganda — ceasefire or no.3. If the ICC is seen as capitulating to the demands of its host government — or worse, to those of an indicted war criminal — a dangerous precedent will be set for the court’s work elsewhere, not least of all in Sudan. The ICC simply cannot risk facing charges of toothlessness in one of its earliest and most conspicuous cases. Asserting its relevance here is not an act of sabotaging the peace process, but one of ensuring its staying power as a force for both peace and justice elsewhere.
This is, of course, not an easy decision, nor is it a question of choosing between peace or justice. It will be very interesting to see where ICC Chief Prosecutor Moreno-Ocampo comes out on this. He has charted a middle course well thus far, and he is deeply committed to the ICC’s ideological and practical raison d’etre. He’ll have to tread lightly, though, to ensure that Kony does not spurn this peace process and return to the jungle.