Uganda Insists Peace Not at Odds With ICC

The Ugandan government has insisted that the impending peace deal with the rebel Lord’s Resistance Army, LRA, does not negate efforts by the International Criminal Court, ICC, to put the group’s leaders on trial.



Instead, they said the peace agreement can work in tandem with the war crimes court in The Hague.



A key provision of the agreement states that Uganda will establish a special domestic court to try the crimes the rebels are accused of committing during the 20-year civil war in the north of the country.



The conflict has claimed an estimated 100,000 lives and displaced nearly two million people from their homes.



However, it remains in doubt whether the peace deal, which has been negotiated for nearly two years, will actually be signed.



Late last week, rebel leader Joseph Kony did not show up for the signing ceremony at Ri-Kwangba, a remote location in South Sudan, claiming that he had outstanding questions about how the Ugandan government planned to conduct trials for members of his LRA.



In another move that cast a cloud over the prospects for the peace accord, Kony sacked his chief negotiator, David Matsanga Nyekorach. Matsanga was replaced by Yusef Adek, an Acholi elder who is a longstanding member of the LRA negotiating team.



To add to the chaos, two of the five people indicted by the ICC, are now dead – Raska Lukwiya in a firefight with Ugandan forces in 2006 and Vincent Otti last October, apparently in an execution ordered by Kony. Reports emerging last week suggested that a third man, Okot Odhiambo, had died in a clash between rival LRA factions. If confirmed, that would leave just Kony and Dominic Ongwen as potential ICC detainees.



Many observers and human rights groups now fear the talks may be in serious jeopardy.



CONCERNS THAT NATIONAL PROCESS COULD SUBVERT ICC



As it has been since the talks began nearly two years ago, the execution of justice has been a central issue in the current negotiations.



In February, the ICC asked Uganda to explain how the agreement to conduct domestic trials would affect its relations with the court.



After being approached by Ugandan president Yoweri Museveni in late 2003, the ICC launched an investigation into the LRA’s war in northern Uganda.



In October 2005, the ICC unsealed indictments against Kony and four of his lieutenants, charging them with 86 counts of war crimes and crimes against humanity.



Kony has demanded that the ICC arrest warrants be dropped, and has warned the LRA will not disarm or demobilise until this happens.



The plan for a special court in Uganda has been seen as a compromise by the government with the rebels on this issue.



There has been some concern that a national legal process is meant to replace the ICC, implicitly ruling out extradition and trial in The Hague.



However, Uganda’s Solicitor-General Jane Kiggundu said recently, “The special division of the [Ugandan] High Court is not meant to supplant the work of the ICC.”



The Ugandan ambassador to The Netherlands, Mirjam Blaak, explained that the special court would operate in accordance with the ICC’s statute.



"Trials at a national level would make use of the principle of complementarity, for which the court was established in the first place," she said.



Under this principle, the ICC can accept a national prosecution if the judicial system in the given country is deemed to be up to the international court’s standards.



As Kiggundu put it, “those individuals who were indicted by the ICC will have to be brought before the special division of the high court for trial”.



Kiggundu said that when Uganda originally approached the ICC, it was not because it lacked adequate courts of its own – one of the conventional reasons for doing so – but rather because it wanted international help with its insurgency problem.



“The leadership of the Lord's Resistance Army was beyond the borders of Uganda, and the international community was not being helpful,” she said.



The rebels found sanctuary in South Sudan for many years until 2002, when the Ugandan army was permitted to attack rebel bases there. This forced the LRA to relocate, and it eventually established a base in the Garamba park in the northeastern corner of the neighbouring Democratic Republic Congo, DRC. Recently, the bulk of LRA forces have moved again, this time to the Central African Republic, CAR, in an apparent effort to pre-empt plans to attack them and capture their leaders.



Blaak agreed that “Uganda’s inability to have the LRA leadership tried was due to this challenge, rather than due to reasons related to the competence of its courts to handle cases connected with the situation”.



She said it was preferable to deal with international crimes at a national level. Only when a state was not serious about doing so or when crimes were going unpunished should the ICC step in, she said.



If LRA leaders submit to Ugandan jurisdiction, it would solve a major problem for the DRC, South Sudan and the CAR, she said, adding that then a sustainable peace could be achieved for the whole region.



HAS UGANDA THE CAPACITY TO TRY THE LRA?



Human rights groups, however, have expressed serious doubts about Uganda’s ability to try the rebels properly, and fear that most would escape punishment.



“Improvements in the Ugandan justice system will undoubtedly be needed to make national trials viable,” said Human Rights Watch’s Richard Dicker in a statement earlier this year. “We are talking about holding highly sensitive trials in a country with a history of attempted interference with the judiciary and no real witness-protection programme.”



Amnesty International says impunity has been pervasive in Uganda during the war, and little has been done about the numerous cases of crimes against humanity, war crimes, torture, extrajudicial killings and abductions of civilians in the north.



The ICC’s senior legal advisor, Phakiso Mochochoko, told IWPR that Uganda’s referral of the LRA problem to the court in 2003 was an indication that the Uganda system was either unable or unwilling to handle such cases.



“If a state is willing and able to genuinely prosecute, the ICC will not have to deal with the matter,” he said, adding that the ICC process kicked into action precisely when this was not the case.



“If Uganda now says it is willing and able to genuinely prosecute, it will be for the government to come before ICC judges and prove this.”



Blaak said her government had hoped that raising international awareness of the LRA would speed Kony’s arrest, but this did not happen.



“It is with disappointment that the government of Uganda has to conclude that international cooperation has not worked up to now,” she said.



But she noted that Uganda has not asked the ICC to drop the indictments, and admitted that the ICC’s indictments had been useful in bringing the rebels to the negotiating table.



“We as a government have never asked for warrants to be revoked, deferred or lifted,” she said. “We are very happy the warrants are out – if they weren’t there, they wouldn’t have served as a pressure tool to keep the LRA committed to these talks and we would never have got as far as we have now.”



ICC prosecutors told IWPR that the court’s continued insistence that LRA leaders should be apprehended and brought to The Hague did not represent a judgement on Uganda’s judicial system, but were necessary because to date, no domestic legal proceedings had been brought against the rebel leaders indicted by the ICC.



The prosecutors said that if Uganda did launch a prosecution, they would assess the “genuineness” of the process.



“In case of a challenge to the admissibility of our case – an hypothetical situation at the moment – the decision will belong to the judges,” the Office of the Prosecutor, OTP, told IWPR.



“The OTP has a strong case against Joseph Kony and the other LRA commanders; we assess that our case is and remains admissible and the Prosecutor has indicated that he will fight any admissibility challenge in court.”



Before Uganda can persuade the international community that a national legal process is valid, it must adopt legislation that knits ICC procedures and standards into its own laws, so that the proposed special court division is fully compatible with the Hague court.



According to Amnesty International, although Uganda signed up to the ICC in 2002, the country has failed to define genocide, crimes against humanity, and war crimes in its national legislation.



David Donat Cattin of Parliamentarians for Global Action, a network of members of parliament from around the world promoting democracy and peace, said that if Uganda could apply the definition of crimes as laid out in the ICC statute in its investigations, prosecutions and adjudications, it could successfully challenge the jurisdiction of the international court. But he said this was not currently possible since legislation incorporating the statute had yet to be passed.



Blaak said this legislation had in fact been ready before the ICC issued its arrest warrants, but it has yet to be passed. Regardless, she said, Uganda plans to abide by the ICC statute in creating the national court.



FEARS JUSTICE WILL NOT BE FULLY SERVED



Jonathan O'Donohue from Amnesty International's International Justice Project is concerned that that one section of the peace agreement – the Annex on Accountability and Reconciliation – offers too narrow a definition of the crimes that might be prosecuted under a future national judicial process.



He also fears that the government may grant amnesty to many LRA combatants in exchange for them laying down their weapons, thus letting them avoid prosecution.



Since 2000, amnesty has been granted to 20,000 former rebels.



O'Donohue would also like to see Ugandan military personnel accused of abuses during the conflict put on trial. Under the present system, such individuals are subject to military tribunals, which he argues are not transparent, offer no right of appeal, and can impose the death penalty.



In addition, O'Donohue argued that running two very different processes for rebels and the military “obscures the crimes that have been committed by government forces, and highlights that the agreement is not a genuine effort to end impunity, but a political compromise between the two parties”.



Dicker agrees this imbalance could be a problem.



“There must be fair, credible prosecutions of the most serious crimes committed by both sides and sufficient penalties for those convicted,” he said. “The agreement does not fully speak to this, and we look to the parties and international partners to ensure that they are properly addressed.”



Uganda insists it does not have to send cases involving the army to the proposed special court, arguing that its court martial system is comprehensive and works well.



“We have a strict military code and we have sentenced many UPDF [Ugandan People’s Defence Forces] members who have committed individual crimes to death,” said Blaak.



Blaak said Uganda has submitted all the sentences and details of cases against the military to the ICC.



“If any evidence is coming now, we as a government are willing to deal with it in the most severe way, which is the court martial system” she added.



Cattin warned that applying different legal frameworks to the LRA and the Ugandan army violates the ICC’s commitment to equal prosecution.



“It seems to me this [plan for a special court] is packaged to tackle the cases the ICC is looking into, which would violate a fundamental principle of international law on which the ICC is based, which is equality for all before the law,” he said.



Katy Glassborow is an IWPR reporter in The Hague.