The last 20 years have seen the fast paced evolution of international criminal justice.
The creation of the two ad hoc tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) was followed by the establishment of the International Criminal Court (ICC) which aspires to global reach. The ICC was the dream of yesterday but a reality of today.
The idea of a permanent criminal court was on the international agenda for much of the last century. Now that it is a reality there are certain challenges it faces.
The Statute of the ICC, also known as the Rome Statute (the Statute), entered into force on 1st July, 2002, and established a permanent, independent Court to investigate and bring to justice individuals who commit war crimes, crimes against humanity, and genocide. The ICCs jurisdiction extends over crimes committed since the entry into force of the Statute. The ICC is headquartered in The Hague, Netherlands. As of March 2010, 111 countries were parties to the ICC Statute.
The ICC began operating at its inauguration on March 11, 2003. The Statute also established a second independent institution, the Trust Fund for Victims, to help victims of these crimes. The Trust Fund for Victims can only act in situations where the ICC has jurisdiction.
According to Blacks Law dictionary to refer means to send a motion to a committee for its consideration or investigation, with a view to a report from the committee back to the referring body. Referral on the other hand means the act or an instance of sending or directing to another for information, service, consideration, or decision.
In the language of the Rome Statute of the ICC it means triggering the ICC jurisdiction over a situation by a state party to the statute.
As outlined in the ICC Statute situations may be referred to the ICC in one of three ways; by a state party to the Statute, the ICC prosecutor or The United Nations (UN) Security Council.
Currently four situations have been referred to the Prosecutor. The governments of three countries (all parties to the ICC)-Uganda, the Democratic Republic of Congo, and the Central African Republic- have referred situations to the prosecutor. The UN Security Council has referred one situation (Dafur, Sudan) to the prosecutor. One situation (Kenya) followed an application by the prosecutor.
States parties adopted amendments to the Rome Statute that define and determine ICC jurisdiction over the crimes of aggression at the Review Conference of the Rome Statute that took place in Kampala, Uganda, from May 31 to June 11, 2010. Under the amendments, the ICC may not take jurisdiction over aggression crimes until at least January 2017, and only if states parties vote to activate such jurisdiction at that time.
Article 34 of the Rome Statute provides that the court shall be composed of the following organs: the presidency, an Appeals Division, a Trial division, a Pre-Trial Division, the Office of the Prosecutor and the Registry.
The armed conflict in northern Uganda began in 1986, soon after Yoweri Museveni took power and became President of Uganda, a position that he continues to hold more than 20 years later. The LRA a rebel group under the leadership of Joseph Kony began fighting the Museveni government and the Uganda Peoples Defence Forces (UPDF), the country's new loyal army to Museveni.
The conflict was rooted in deep ethnic competition between populations in the North and in the South of Uganda over military and economic power going back as far as colonial rule. For over 26years the LRA led by Joseph Kony fought against the Uganda Government and the Acholi people of Northern Uganda.
The LRA became infamous for abducting Children, who were subsequently used as child soldiers and sex slaves and many people were displaced. After more than 20years of instability and war, the Acholi people were more than ready to make peace with the rebels, at almost any cost.
In 2003, Ugandan president Museveni referred the situation concerning the Lords Resistance Army to the ICC in The Hague. The court after investigations issued arrest warrants for five of the most notorious leaders of the LRA. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen who were all charged with Crimes against Humanity and war crimes. Two of these men have been said to be dead but only Raska Lukwiyas death has been confirmed and thus his warrant of arrest has been rendered without effect and his name has been removed from the case. However, Vincent Otti's death has not been confirmed.
The ICC arrest warrants have removed the LRA commands incentive to come out of the bush, which has made peace talks difficult, if not impossible.
A woman in an internally displaced camp is said to have asked;
Kony will not come out because of the ICC, so to whom should we attribute our suffering?
It is obvious nobody can convince the leaders of the rebel movement to come to the negotiating table and at the same time tell them that they will appear in courts to be prosecuted.
Therefore the question arises can Uganda withdraw the referral?
The LRA leadership is made up of Acholi (a people in Northern Uganda). The LRA fights against the government which has its power base in southern Uganda causing many northerners to feel disempowered.
The issue however, is not purely tribal; most victims of the LRA atrocities are from the same Northern Acholi people as the LRA leadership. The LRA is not motivated by any clearly identifiable political agenda, making peace negotiations more difficult.
One noteworthy element of the conflict is the fact that the LRA leader Joseph Kony portrays himself as a medium with direct contact with various spirits which guide his actions.
The conflict seriously blemished the record of Musevenis government. Attempts to end the conflict through peace negotiations did not yield any results.
In 2000, the Uganda Legislature passed the Amnesty Act, offering amnesty for all Ugandans involved in acts of war-like nature, who voluntarily came forward and abandoned their activities. Unfortunately the Amnesty Act failed to end the conflict even though a considerable number of LRA fighters eventually abandoned the conflict.
When President Museveni announced that Kony and other LRA leaders would be left unpunished if they abandoned terrorism, this statement was interpreted to mean that President Museveni intended to withdraw the Ugandan referral of the situation to the ICC.
Thissparked off a debate and there are arguments both for the withdrawal and those against the possibility of withdrawal.
The debate, arguing in a broader international context, seems to be in favour of the possibility of withdrawal of the situation referred to the ICC.
Zachary A. Lomo in his article Why the ICC must withdraw indictments against the top LRA leaders alludes to the argument that a state in international law can be relieved of its obligations if grave circumstances occur that render it practically impossible for it to implement the obligations it assumed under a particular treaty
He argues that the ICC is a threat to the independence and sovereignty of peoples and democratic processes and Uganda should withdraw from the Rome Statute. However in my view this appears to be a drastic remedy where a matter was actually referred by the complaining state.
In Zacharys view the people want justice but not all the people want trial justice and trial justice is selective and will not always act as a deterrent for future crimes. That justice must not only be understood from the perspective of trials by the ICC alone. There are other ways through which justice may be done so to tout trials as a magical panacea is intellectually dishonest.
Zachary therefore advances various arguments in favour of state withdrawal of a matter it referred to the ICC if it wishes to explore alternative justice systems.
The first argument is that Article 1(1) of the United Nations Charter (UN Charter) enjoins member states to take effective collective measures for the prevention and removal of threats to the peace and bring about by peaceful means, and in conformity to the principles of justice and international law, adjustments or settlements of international disputes which might lead to the breach of peace.
The cardinal principle here is that peaceful means must be used to remove threats to the peace such as international conflict or internal conflict. Therefore for the purposes of ending the conflict in peaceful means the ICC should allow Uganda to withdraw the matter of the LRA leaders to facilitate the peace process.
The other argument is on sovereignty and self determination of the peoples. UN Charter enshrines these two fundamental principles both of which are very relevant to the question whether a state may withdraw a referral it made to the ICC.
Under these principles Uganda and its people as a sovereign are entitled to pursue peaceful means to resolving the conflict and promoting national reconciliation and justice in the context of their own situation. So withdrawal of the referral should be allowed by the ICC
The principle of sovereignty if interpreted in the present context implies that the ICC Statute cannot be sovereign to the national laws of any member state.
This is the principle captured by the principle of complementarity enshrined in the Rome Statute. It emphasizes that the jurisdiction of the ICC is aimed at complementing, and not replacing the domestic criminal justice system.
The same principle is further re-enforced by Article 17 of the Rome Statute which bars the ICC from prosecuting an individual unless the state concerned is either unable or unwilling to carry out prosecution. The principle of complementarity therefore serves to reaffirm in the Rome Statute that sovereignty of the state must be respected in so far as criminal justice is concerned.
The real essence of state sovereignty is for a state to provide security for its citizens. In that respect, Uganda as a sovereign is entitled to seek solutions by peaceful means that bring lasting peace and security to its citizens. Even if Uganda referred the situation in the North to the ICC it does not surrender its residual authority to determine the best approach to handling the situation in Northern Uganda that will maximize security for its citizens. As such any state, in the circumstances as Uganda is, should be allowed to withdraw the matter from the ICC.
Furthermore Article 1(2) of the UN Charter provides for self determination. This encapsulates states among other things to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace.
Crucially, however, the right to self determination does not simply relate to the secession of ethnic minorities from the mainstream body politic and the establishment of new sovereign political entities (such as was the case of Eritrea seceding from Ethiopia, or east Timor from Indonesia). Rather it also includes the internal dynamics of statehood emphasizing the right of the people to determine how to deal with problems affecting them in ways deemed appropriate by them, and without unnecessary or overzealous interference from outsiders.
As such Uganda should be given audience by the ICC to discuss the possibility of withdrawal of the LRA matter from the ICC in the interest of justice.
Similarly the people of Northern Uganda have the right to self determination and this implies that the primary prerogative of determining how to end the conflict in Northern Uganda. If they decide that the best way to deal with their past is to forgive all those who have committed crimes against civilians, that wish has to be respected by others, including the ICC, if the people decide that those who were responsible for the violation of Human Rights should be dealt with in accordance with their own traditions, that too has to be respected by all who may not share the values of the people affected. This is why the ICC should allow Uganda to withdraw its referral of the LRA situation.
To impose on them an approach that negates prospects of ending the conflict and addressing its root causes, primarily because we want to punish impunity is in itself an act of impunity, an insult, and violation of the peoples right to self determination. The right to self determination is supreme and cannot be overridden by the provisions of any other international instrument, be it the Rome Statute.
The people of Uganda are not looking for prosecutions only. They prefer exploring other justice systems. That is why in 2000, well before the Rome Statute became operational, the people of Uganda through the Amnesty Act 2000, expressed their desire to resolve the conflict in the North and other parts of the country through peaceful means including the grant of amnesty to all individuals who took arms against the government. This decision was a result of the realization that the causes of the conflict are deeply embedded in Ugandas politics.
This is another reason why the ICC should allow Uganda to withdraw the matter of the LRA.
The UN Charter is supreme to the ICC Statute. Uganda has even incorporated the principles in the UN Charter into its own Constitution. Uganda has obligations as a sovereign to guarantee the security of its citizens and these obligations override its duty to corporate with the ICC.
The UN Charter is the supreme instrument in international treaty law. Uganda's obligations under the UN Charter are supreme to any other obligations under another instrument. This is categorically stated under the UN Charter which states that; in the event of a conflict between obligations under any other international agreement, their obligations under the present charter shall prevail. (Emphasis supplied).
That is why Uganda can withdraw from the Rome Statute, it is a sovereign state and that must be respected.
Even excluding the unequivocal import of Article 103 of the UN Charter on sovereignty, any comprehensive interpretation of the of International Law, taking into account the context, makes it clear that the interests and well being of the people must supersede the obligation to hand over Joseph Kony and his top LRA commanders to the ICC for prosecution.
It is true that under The Rome Statute, as well as the broader international law principle of puncta sunt servanda, judicial decisions of the International Court of Justice (ICJ) have held that a state may not invoke its domestic legislation to defeat or avoid its international law obligations. But these principles set general rules to which there is exception.
Under the Vienna Convention on the Law of Treaties, a party may be released from its obligations if there are supervening circumstances that make it impracticable for it to implement those obligations or if implementing such obligations would cause a disproportionately greater harm or damage than the anticipated good.
This position is re-affirmed in the Rome Statute itself. Article 53(1)(c) of the statute makes it clear that in deciding whether or not to proceed with an investigation the prosecutor must consider the interests of the victims and determine whether taking these into account the investigation will serve the interests of justice.
This means that the concept of justice must be primarily viewed from the point of view of the people of Northern Uganda. Therefore if the people want the referral withdrawn then the option should be considered by the ICC.
The ICC warrants once issued and unsealed are not facti accompli. Article 53(4) provides that the prosecutor may at any time reconsider whether to initiate investigation or prosecution based on new facts or information (emphasis supplied).
Clearly even though the investigation stage passed, the Chief prosecutor can stop the prosecutions by withdrawing the warrants. In fact Uganda would then have the chance to exercise its jurisdiction under its national courts on Kony over crimes that the ICC could not.
However for the state to withdraw the matter this may not be possible.
The government of Uganda cannot withdraw the Ugandan referral of the situation to the ICC unilaterally. The ICC Statute does not explicitly address the issue, but its silence on the question of whether a state may withdraw its referral must be interpreted as excluding the self-withdrawal of a state party referral.
The travaux preparatoires of the ICC Statute do not suggest that a State party can withdraw a referral once the jurisdiction of the ICC is triggered. More over it would contradict the ICCs mandate to end impunity if a state could simply decide to stop an ICC investigation once it has begun by withdrawing its referral.
A question then arises what happens when the referring state wishes to un-trigger the Jurisdiction of the ICC. Article 16 of the ICC statute has been referred to as the vehicle for resolving conflict between the requirements for peace and justice, where the council assesses those peace efforts need to be given priority over criminal justice.
It reads ; No investigation or prosecution may be commenced or proceeded with under this statute for a period of 12months after the security council in a resolution under Chapter VIII has requested the court to that effect, that request may be renewed by the council under the same conditions.
Although potentially useful this Article also raises problems of selectivity and political control over prosecutorial discretion and might have negative impact on the credibility of the ICC
The International Crisis group (ICG) has described Article 16 of the ICC statute as a flawed option in the context of northern Uganda.
This is because the image of the Security council intervening to reprieve a group as stigmatized as the LRA may appear to some an unacceptable affront to Justice and the victim, especially if the a peace agreement does not include any substantial accountability claims.
The International Crisis Group s President Nick Gromo is said to have concluded that; the talks have a long way to go, but if they reach the stage that peace is likely, the ICC prosecutions should be put on hold to give the Millions in Northern Uganda a chance to enjoy the Peace they have thirsted for 20years.
A Security Council deferral in accordance with Article 16 of the ICC Statute remains a very likely option in the case of Northern Uganda particularly in light of the shocking nature and scale of the atrocities committed in the course of the conflict.
In any case, it is unlikely that the indicted LRA leaders would be satisfied with such a deferral given that it would apply only for a limited (though renewable) period of 12 months.
That restricts its potential utility as a bargaining chip. Bartram S. Brown in his Research hand Book on International Criminal Law predicts that the only situation in which Article 16 may apply in Uganda is where the Uganda government asks the UN Security Council for a deferral until more adequate domestic mechanisms of criminal justice could be set up.
But so far there is no indication that Uganda has any such plans.
Another option that Uganda could have to un-trigger the ICC jurisdiction is under Article 53 of the Rome Statute which gives the prosecutor powers to abandon an investigation but the investigations in Uganda have since been concluded and arrest warrants issued. This option may therefore no longer be available to Uganda.
According to the general rule of treaty interpretation under Article 31 of the Vienna Convention on the Law of treaties, a treaty shall be interpreted according to the ordinary meaning of the terms of the treaty and in light of its object purpose and any relevant rules under international law.
The ordinary meaning of the term in the interests of justice should therefore be interpreted strictly and the discretion still remains with the prosecutor.
Uganda could also argue complementarity in favour of withdrawal of the matter. However the discretion under article 19(1) of the ICC statute remains in the court as was noted in The ICC Pre-Trial Chamber II decision. The Pre-Trial Chamber II also said that the ultimate authority to make determination as to the admissibility of the case is the courts and not for Uganda.
In other words when a domestic system is eventually set up to bring the indicted LRA leaders to Justice in Uganda it will still be the prerogative of the ICC and not that of Uganda to determine whether the system satisfies the requirements of the ICC Statute.
CONCLUSION
In conclusion a State may not withdraw a referral to the ICC unilaterally. However it may request the UN Security Council for a deferral until it develops necessary mechanisms for the prosecution of the perpetrators. The prosecutor may also lose interest and withdraw from the case, or the court may in the pre trial chamber rule the case inadmissible. Once arrest warrants are issued the matter cannot be withdrawn unless the referring state explores the above avenues. Development of mechanisms of trial domestically does not as well guarantee withdrawal of a referral the discretion still remain in the court to decide whether the mechanisms are up to the standard. Therefore a state cannot withdraw a referral unilaterally.
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