The International Criminal Court (ICC) is a relatively new institution that became operational in 2002, after the sixtieth state ratified the Rome Statute of 1998. The Statute was signed by 120 countries with only seven opposed or abstaining, including the USA and Sudan. The crimes under the jurisdiction of the ICC are: genocide, crimes against humanity, war crimes, and the yet to be defined “crimes of aggression.” The crimes that the court is intended to investigate are those where serious violations of international human rights and humanitarian law occurred.
Currently, Kampala, the capital of Uganda, is hosting a very important meeting – from May 31, to June 11, 2010 – where participants from over 100 countries will discuss how to strengthen international justice and fight impunity. Uganda is the first country where the ICC issued five arrests warrants early in October 2005. The warrants make the case against the Lord’s Resistance Army (LRA), a rebel movement based in northern Uganda that engaged in a war against the Ugandan government and its UPDF army for more than 20 years.
However, the ICC has yet to prove itself to a rather sceptical world, and Uganda is no exception. The modality and the timing of the ICC intervention in Uganda have been a matter of discussion and controversy among national and international human rights’ organisations as well as among the victims of the war in the northern Uganda. To date, many remain sceptical if not opposed to the court. The reasons that led some organisations and individuals in Uganda to object to the ICC are manyfold. For some the court is “a legal fundamentalism, a judicial intrusion into the issue of northern Uganda”, as stated by Fabious Okumu Alya, Ugandan judge and senior lecturer in Law at the Institute of Peace and Strategic Studies in Gulu, Uganda, during an interview with the author. Others are unhappy with the way that the Court got involved.
The involvement of the ICC in the investigation of alleged crimes can begin when the Chief Prosecutor decides to begin an investigations, when the Chief Prosecutor is asked to start an investigation by the Security Council, or when the government of an ICC member state asks for an investigation to take place. Uganda is the ICC’s first big case, and the court became involved after President Museveni asked the Chief Prosecutor, Moreno Ocampo, to start an investigation into crimes committed by the LRA. The decision was publicly announced in a joint press briefing in 2004. Inevitably, because it was President Museveni inviting the ICC to investigate, and the Chief Prosecutor seeming to have no intention of investigating both the LRA and UPDF army, the credibility and impartiality of the Court in the eyes of many human rights organisations in northern Uganda was suspect.
ICC supporters have argued that since the Government of Uganda has failed to prosecute UPDF soldiers who have allegedly committed crimes against humanity and war crimes, the involvement of the ICC was believed to be useful, as it could act against impunity for both sides. Conversely, because it was the Ugandan government that invited ICC participation, the court’s objectivity and impartiality have been seen as compromised from the beginning, and the initial investigations that resulted in arrest warrants issued only against the LRA leaders signalled clearly to many that the ICC would not look into crimes committed by the UPDF.
Another controversy was caused by the timing of the ICC intervention which was considered as not adequate. The ICC started the investigations when the conflict was still going on, assuming that justice would bring peace, and willing to condemn the crimes. Many Ugandan human rights’ activists would rather believe that peace and political stability are essential to achieve justice, and if both cannot be in place at the same time, then peace is paramount.
In the case of Uganda, the ICC issued arrests warrants against five top commanders of the LRA while the Juba Peace was process going on between the rebels and the Government of Uganda. Human rights activists accused the ICC of jeopardising the ongoing peace process and according to them, the LRA leader Joseph Kony failed to show up to sign the final Peace Agreement in Juba in April 2008 because of the indictment.
Similarly, Human Rights Focus, a Ugandan NGO, believes that it would have been better to delay the ICC intervention in order to avoid jeopardising the peace process, since the kind of crimes that the LRA has committed are not the types that go unnoticed and Joseph Kony could still be apprehended after peace was given a chance.
According to the ICC, the belief that Kony would actually be willing to make peace is only an illusion and the arrest warrants against him and his commanders can be executed only if DR Congo and Central Africa Republic – where the LRA has been operating over the past years – are willing to join forces. Collaboration between states is therefore crucial to the success of the ICC in achieving justice, and it will be a matter of discussion during the ongoing meeting in Kampala. Besides, issues such as the involvement of the victims in the proceedings and the need for reparations to victims will be considered carefully, as well as the actual impact that the court has on the communities.
Despite the flaws and the limits of the court, the ICC has the potential to fight impunity and bring justice and in order to achieve these noble goals, countries need to strengthen their co-operation. Under the principle of “complementarity” the ICC is complementary to, rather than superior to, national justice systems, and the impunity can only be fought successfully if the domestic judicial systems can ensure credible and fair proceedings. Finally, through the support given to the ICC, states reinforce their commitment to ensure that crimes against humanity do not go unpunished. END