The work of the institution of the International Criminal Court, popularly referred to as ICC has of recent attracted varying criticism from around the world. This criticism is probably more pronounced on the Africa continent than anywhere despite the fact that the continent has the highest number of countries which have ratified the Rome Statute. Many African countries have called for the unilateral withdrawal from the ICC and deferral of key cases against serving African Heads of State and Government and there is a lot of lobbying towards this objective. Uganda is one of the countries that have sharply criticized the ICC. What is Uganda’s relationship with the ICC? Can Uganda withdrawal from the ICC? What implications will the withdrawal have on Uganda’s criminal justice system and how will it affect her international relations? This paper investigates and presents possible answers to and discusses major issues around these vital questions.
Criminal justice; international law; impunity; deferral; referral.
For centuries, actors in the international system narrowly understood and defined international law solely in terms of relations between and among recognized sovereign states. World leaders, individuals and other actors in the international system acted with impunity partly because international law did not hold them accountable and national justice systems were either not willing or unable to impose their will (( Some of the key reasons that explain impunity in national jurisdictions include lack of political will; political decisions to establish amnesties which protect the perpetrators; collapse of the national legal system; inadequate national laws criminalizing the crimes; and other legal obstacles to justice, including statutes of limitations and immunities. The framers of the Rome Statute were wise to categorically state in Article 29 thatthe crimes within the jurisdiction of the Court are not subject to any statute of limitations.)) . However, in recent times and more especially after the end of the Cold War, this situation has been slowly changing. In a bid to establish and maintain a more just international order, States have shown an increasing level of willingness to enlarge the zone of their jurisdiction and to prosecute or extradite those in high places or supported international institutions and entrusted them with mandate to investigate and prosecute individuals, institutions and States themselves if they committed certain grave crimes.
It was in this changing but positive spirit in the international system that the permanent institution of the International Criminal Court (ICC) was established on 17 July 1998. It was envisaged that this institution would help to break the vicious cycle of crimes, impunity and conflict and therefore contribute to the advancement of justice and the prevention of crimes, and thereby contribute to the advancement of international peace and security. The Court officially started its work on 1 July 2002 (( Currently, 139 states are signatories and a total of 122 countries are States Parties to the Rome Statute. Of these, 34 including Uganda are from Africa, 18 from Asia-Pacific, 18 from Eastern Europe, 26 from Latin America and the Caribbean and 25 from Western European and North America.)) .
What is Uganda’s relationship with the ICC?
Having signed the Rome Statute on 17 March 1999 and deposited its instrument of ratification of the on 14 June 2002, Uganda was one of the first countries to fully and voluntarily embrace the institution of the ICC. Furthermore, on 16th December, 2003, the government of Uganda contributed to the shaping of the history of ICC and indeed the international criminal justice system in at least two main ways.
First, on that day, Uganda became the first country to invoke article 13(a) and 14 of the Rome Statute of the International Criminal Court and refer a case of the Situation Concerning the Lord’s Resistance Army Insurgency in Northern Uganda to the Prosecutor of the ICC. This being the first ever voluntary state referral of a compelling case, it was very significant because of what Payam Akhavan has called an early “expression of confidence in the nascent ICC’s mandate and a welcome opportunity to demonstrate its viability” (( Payam Akhavan (2005) Developments at the International Criminal Court: The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court: American Journal of International Law, 99:1 – 19. Prof Payam Akhavan is the former Legal Adviser, Prosecutor’s Office, he has also worked at the International Criminal Tribunals for Yugoslavia and Rwanda (ICTY-ICTR), and he also advised the Government of Uganda on the ICC referral.))
Second, the government of Uganda having for many years openly and vehemently rejected any significant intervention of the international community in the conflict in Northern parts of the country, the referral was a means of formally thrusting one of Africa’s longest running and one of the world’s most brutal conflicts into the international arena.
In addition, the referral was closely followed by Uganda’s “Letter of Jurisdiction” written to the ICC in May 2004 clearly stating and confirming, among other things, that the Government of Uganda had been unable to arrest persons who may bear the greatest responsibility for the crimes within the referred situation; that the Government of Uganda had not conducted and was not intending to conduct any national proceedings in relation to the persons most responsible for those crimes; and that the ICC is the most appropriate and effective forum for the investigation and prosecution of those who may bear the greatest responsibility for those crimes.
In light of this development, the referral has raised tempers in the debate in international justice circles as to whether a state like Uganda, which has a relatively reputable judicial system that is highly respected and with a wide range of relevant legal stipulations that are sufficient to allow it to conduct a fair prosecution of the crimes within the referral under review, is legally justified to voluntarily relinquish jurisdiction to the ICC.
The referral has put the country’s criminal justice system in an uncomfortable legal fix. This is mainly due to the following considerations:
a. The ICC’s temporal jurisdiction allows it to investigate and prosecute only cases committed after July 1, 2002, yet there is a lot of compelling evidence that point to the fact that numerous heinous crimes were committed before then, and yet as of July 2002, there was no single case against the LRA in Ugandan courts. In 1999, the government of Uganda opened a Terrorism Case at the Buganda Road Magistrates Court and thereafter the Court issued Arrest Warrants for three members of the Lord’s Resistance Army (LRA) – Joseph Kony, Otti Lagony and David Nyekorach Masanga. However, on 13th September 2001, the then Director of Public Prosecution, Mr. Richard Butera, ordered the Court Registrar to discontinue the case, pending arrest of these suspects ((See the Buganda Road Magistrates Court Records – Case Number KLA-00-CR-CO-0221-1999. The LRA leaders were charged with Terrorism in accordance with Section 28 (1) of the Terrorism Act and Section 12 of the Penal Code Act.)) . There was no satisfactory explanation given for the withdrawal of the case. From 2001 until the time the referral was made in 2003, there were no significant steps that were taken to prosecute the top LRA commanders.
b. Another complication arises from the fact that the ICC has indicted only five members of the LRA and all the other members of the LRA are considered as bearing less responsibility for the crimes within the referred situation. The referral does not deter conducting any national criminal proceedings against the other members of the LRA. However, these members were in position of benefiting from blanket or unconditional amnesty under the Amnesty Act. This simply implies that they are untouchable and almost amounts to condoning impunity for crimes committed in Northern Uganda. In fact, a number of top LRA commanders including Brigadier Kenneth Banya, Brigadier Sam Kolo Otto have been let off the hook because of the stipulations of this Act.
c. In addition, considering the fact that the referral makes no mention of other actors in the conflict, both state and non-state actors, who may have committed crimes, is Uganda’s criminal justice system prepared to take on these actors?
Some of the Key Events Leading up to the ICC Involvement in Uganda?
It is important to note that there are many factors that contributed to shaping the government of Uganda’s decision to make the referral. What is sad to note however, is that the desire to achieve justice may not have been on top of the agenda for the government. As Payam observes, Uganda’s decision to invoke ICC jurisdiction was mainly shaped by security considerations in Acholiland ((Payam Akhavan (2005) Developments at the International Criminal Court: The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court: American Journal of International Law, 99:2. )). In addition to the deteriorating security situation in that region at that time, the failure of the government of Uganda to apprehend or eliminate Joseph Kony and the other members of the top leadership of the LRA contributed to the government’s invoking of ICC jurisdiction. Suffice to note is the fact of the government’s realization that only the military option could not resolve the conflict and bring about stability in the country. As a result, this realization pushed the government to delve into accepting and sometimes facilitating both local and international mediation efforts geared towards peaceful ending of the conflict. However, these efforts did not yield positive results as the hostilities between the fighting forces coupled with heinous crimes against unarmed civilians continued and at times increased ((The first round of negotiations was initiated and led by Hon. Betty Bigombe, first in the early 1990s and then in 2002 and 2004. Regrettably, there were also several other unsuccessful attempts by the Acholi Religious Leaders Peace Initiative (ARLPI), Jimmy Carter Center, and many other civil society organizations geared towards brokering a peaceful settlement but as these attempts at negotiations took place no ceasefires were declared and no peace agreement was ever signed.)).
This failure pushed the government to explore other avenues of ending the conflict and the ICC referral was considered. Finally, the failure of the LRA leadership to respond positively to the general amnesty policy also made the government’s decision to invoke the ICC jurisdiction possible.
What has the ICC done since 2003?
After the government of Uganda made the referral, as procedure demands, the Office of the Prosecutor of the ICC announced on 29 July 2004 that from the referral and other information available to it, it had made a decision to open an investigation into crimes within the referred situation. In May 2005 the Prosecutor announced that his office had unearthed large amounts of reasonable, verifiable and compelling evidence that crimes under the jurisdiction of the ICC had actually been committed by the LRA ((Statement by the Chief Prosecutor on the Uganda Arrest Warrants, The Hague, 14 October 2005.)) . The situation of Uganda was assigned to Pre-Trial Chamber II which was composed of Presiding Judge Mauro Politi, Judge Fatoumata Dembele Diarra and Judge Tuiloma Neroni Slade. The team from the Office of the Prosecutor that was handling the case included Mr. Luis Moreno Ocampo, Prosecutor, Ms. Fatou Bensouda, Deputy Prosecutor, Ms. Christine Chung, Senior Trial Lawyer and Mr. Eric MacDonald, Trial Lawyer. The ICC also established a field office in Kampala in 2005.
On the basis of the strong evidence provided by the Office of the Prosecutor, on 8th July 2005 the Pre-trial Chamber of the ICC issued sealed warrants of arrest for Joseph Kony and four top LRA commanders – Dominic Ongwen, Vincent Otti, Okot Odiambo and Raska Lukwiya (( See Warrant of arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (ICC-02/04-01/05-29) and Warrants of Arrest for Dominic Ongwen (ICC-02/04-01/05-16), Vincent Otti (lCC-02/04-01/05-13), Okot Odiambo (ICC-02/04-01/05-15) and Raska Lukwiya, all Issued on 8 July 2005 by the Pre-trial Chamber of the ICC sitting in The Hague, Netherlands.)). The warrants of arrests remained sealed until 13th October 2005. According to the ICC, they were sealed because of the need to “protect the well-being and identity of victims, potential victims and their families” ((The ICC Press Statement issued on 14th October 2005)) . In its decision to unseal the warrant, the court explained that a central issue of victims and witnesses security in light of the arrest warrant announcement had been satisfactorily established.
A total of 33 criminal counts are listed against Joseph Kony on the basis of his individual criminal responsibility. These are listed as 12 counts of crimes against humanity, including murder, rape, enslavement, sexual enslavement, and inhumane acts of inflicting serious bodily injury and suffering and 21 counts of war crimes including murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, inducing rape and forced enlistment of children. On his part, Vincent Otti is accused on 11 counts of crimes against humanity and 21 counts of war crimes. Okot Odhiambo is accused of 2 counts of crimes against humanity and 8 counts of war crimes. Dominic Ongwen is accused of 3 counts of crimes against humanity and 4 counts of war crimes while Raska Lukwiya was accused of 1 count of crimes against humanity and 3 counts of war crimes.
In October 2005, the Government of Uganda announced that Dominic Ongwen had been killed by Ugandan troops on 30th September 2005 ((See the then Ugandan Minister of Defence, Honorable Amama Mbabazi’s announcement in The Sunday Vision, October 8, 2005.)) . The ICC has since verified the government’s reports and found them to be true. Accordingly, the ICC terminated the proceedings against Raska Lukwiya and this rendered his warrant of arrest without effect and therefore the name of Raska Lukwiya has been removed from the case ((The Decision of the Pre-Trial Chamber 11, No: ICC-02/04-01/05-248 of 11 July 2007.)) . The ICC is still pursuing efforts that are geared towards bringing the remainder of the leaders of the LRA to face justice. In a related incident, the ICC is currently investigating the allegations by the Government of Uganda that Vincent Otti is dead (( ICC-02/04-01/05-286 “Report by the Registrar on the Execution of the “Request for Information from the Republic of Uganda on the Status of Execution of the Warrants of Arrest” dated 28 March 2008.)) .
In June 2010, the ICC held a Review Conference of the Rome Statute in Kampala, Uganda. At this meeting, the ICC adopted a resolution by which it amended the Rome Statute so as to include a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime.
Under What Circumstances Would Uganda Withdraw from the ICC?
Ugandan President H.E Yoweri Museveni has come out openly to oppose the ICC intervention in the African continent. He has called for the “rejection of the blackmail by the International Criminal Court” and referred to the Court as “shallow and biased” in its handling of “complex African issues” ((See Statements by His Excellency Yoweri Kaguta Museveni, President of the Republic of Uganda at the Inauguration of President Uhuru Kenyatta of Kenya in Nairobi, Kenya on 9th April 2013; and remarks he made at the 68th United Nations General Assembly in New York on 24th September 2013.)) . He has been supported by a number of other African states. In the wake of the President Museveni’s sustained critical remarks and his support for African Union’s resolution for the ICC deferral of Kenyan and Sudanese cases ((See the African Union Resolution Adopted at its Extraordinary Session on the Relationship Between African Union and the International Criminal Court, on October 11, 2013 in Addis Ababa, Ethiopia.)) , many questions regarding the possibility of Uganda’s withdrawal from the ICC are being posed, and many of such questions have not been adequately answered, thus, the objective of this paper.
It is important to note that recent calls for Uganda’s withdrawal from the ICC have not been because of the LRA situation but have had something more to do with the ongoing ICC Case against Mr. Uhuru Kenyatta and Mr. William Ruto, Kenya’s President and Vice President respectively. Uhuru and Ruto’s cases arise out of the 2008 post-election violence that engulfed Kenya and in which over 1200 people were killed, thousands displaced from their homes, and property worth millions of shillings destroyed. The coalition government that was formed after the disputed polls could not address various issues of concern including investigation, arrest and prosecution of individuals who are thought to be most responsible for those crimes that were committed, thus prompting the ICC to intervene, on the request of African Union and former United Nations Secretary General, Koffi Anan, who had been a mediator in the post-electoral crisis in Kenya.
The AU resolution to the effect that no serving AU Head of State or Government or anybody acting or entitled to act in such a capacity, is required to appear before any international court or tribunal during their term of office, is not in any way binding on the ICC nor is it biding on any of the State Parties to the Rome Statute. It is not binding for basically two reasons:
First, it was not passed in good faith. The Heads of AU passed it order to protect individuals whom the Court have already determined that there are reasonable grounds for them to stand trial in a competent, fair court of international jurisdiction. This in no way does not make the concerned individuals guilty but means that the individuals concerned especially in the case of Kenya that they should continue to make themselves available to the court until a fair hearing and determination of their innocence or guilt can be done. For the case of Sudan, Omar El Bashir has indicated that he has no indication of voluntarily making himself available to the jurisdiction of the case, thereby prompting the issuance of the Warrants of Arrest for him (( Although the Republic of Sudan is not a State Party to the Rome Statute, it is important to note here that Sudan had appended its signature on the Statute on 8 September 2000. However, before the Statute came into force, Mr. Deng Alor Koul, the then Minister for Foreign Affairs of the Republic of Sudan, notified the Secretary-General of the United Nations, as depositary of Rome Statute of the International Criminal Court, that Sudan did not intend to become a party to the Rome Statute. However, because of the ICC’s international character, and because of the UN Security Council referral, Sudan has been brought under the jurisdiction of the ICC and therefore, its insistence that it has no any legal obligations arising from the Rome Statute is null and void.)) .
Second, the resolution directly contravenes Article 27 of the ICC Statute which states that theStatute apply equally to all persons without any distinction based on official capacity. As such, official capacity such as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official cannot exempt a person from criminal responsibility under this Statute, nor can it, in and of itself, constitute a ground for reduction of sentence. It further states that immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
Third, international law practice allows state parties to withdraw from a particular international instrument on the following four grounds:
A state may withdrawal from a legally binding international instrument by invoking the principle of rebus sic stantibus. This principle which is clearly stipulated in Article 62 of the Vienna Convention on the Law of Treaties, 1969 states that if there is a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, a state may withdraw. However, this ground does not stand if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
A state may withdrawal if the withdrawal does not defeat the purpose of the treaty/agreement – the reason for which it was entered into or put in place.
If the withdrawal is not going to affect the obligations already entered into under that particular existing legal arrangement.
If a particular statute allows withdrawal i.e. if it has provisions stipulating circumstances under which the withdrawal can be done
A State may also invoke an error in a treaty as invalidating its consent to be bound by that treaty if the error relates to a fact or situation which was assumed by the state concerned to exist at the time when the treaty was concluded, and which formed an essential basis of its consent to the treaty. However, if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error (i.e. if the state ought to have known or discovered the error, then the treaty cannot be invalidated. In addition, an error relating only to the wording of the text of a treaty does not affect its validity.
In case of corruption i.e. if the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.
In case of coercion i.e. in a situation where the expression of a State’s consent to be bound by a treaty has been procured by influencing its representative through acts or threats directed against him. Article 51 of the Vienna Convention on the Law of Treaties states that if a state procures its consent through coercion, its consent shall be without any legal effect and as a result ceases to be a party to that particular treaty. In addition, Article 52 stipulates that a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations ((The principles of international law embodied in the Charter of the United Nations are: equal rights and self-determination of peoples; sovereign equality and independence of all States; non-interference in the domestic affairs of States; prohibition of the threat or use of force; and universal respect for, and observance of, human rights and fundamental freedoms for all.)) .
It is important to point out here that a close evaluation of the African Union resolution or reasons put forward by proponents of Uganda’s withdrawal from the ICC will indicate that those reasons and indeed the AU resolution, fall far short of meeting any of the above seven requirements. The nearest to a withdrawal that would be legally sustainable would be actions sanctioned by the Court under Article 16 of the Rome Statute. This is what is commonly referred to as the deferral of investigation or prosecution. In this case, a concerned State, through a resolution of the United Nations Security Council within the framework of Chapter VII of the UN Charter, requests the Prosecutor of the ICC to defer/postpone the proceedings, for a period of 12 months, after which the Prosecutor can decide to reopen the proceedings.
In the case of Uganda, currently, there are no reasonable grounds to lodge and sustain a deferral of either the LRA case or the Kenyan and Sudanese cases within the framework of the Chapter VII of the UN Charter. The provisions of this chapter require the UN Security Council to take actions with respect to threats to peace, breaches of the peace, and acts of aggression. Again, a close evaluation of the current situation does not indicate the existence of even any shadow of such acts to the extent that would necessitate the UN Security Council to consider requesting for any relevant cases to be deferred by the Prosecutor of the ICC. Besides, even if such acts were to be proven to be in existence by the State of Uganda at the UN Security council, it would still be up to the Prosecutor to decide whether to comply with the request for a deferral or not to grant it.
Therefore, bearing in mind the foregoing consideration, the Ugandan State would be advised not to start thinking of starting an undertaking actions that right from the beginning would be seen as merely futile attempts that would not only waste Ugandan taxpayers money but would also put the country under disrepute and damage the image of the country both at home and abroad.
Attempting to withdraw would also have far reaching implications for the country’s criminal justice system and would send wrong signal to other committed state parties especially as far as implementation of the already existing international obligations. It would also make the arrest and prosecution of the leaders of the LRA more difficult than it already is.
Mr. Edward Tujunirwe is the Assistant Executive Secretary and Head of Corporate and International Affairs Division at Uganda National Council for Science and Technology. He is also Uganda’s National Contact Point [NCP] for Security; and Socio-Economic Sciences & Humanities of the European Union’s Seventh Framework Programme for Research and Technological Development [EUFP7].He is a Board Member of the Science Foundation for Livelihoods and Development (SCIFODE). He also serves as a member of the East African Think Tanks Network (TTN-EA) and President of Discovering Uganda, an association that promotes local and international tourism in Uganda.
© Edward Tujunirwe,
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