JURIST Guest Columnist Wes Rist of the University of Pittsburgh School of Law says that the recent creation of a Ugandan war crimes court to deal with alleged war crimes committed by the Lord's Resistance Army is not a challenge to the International Criminal Court in The Hague, but is actually a victory for the ICC, the Rome Statute, and international criminal law.....
he Ugandan High Court has created a special division devoted to the prosecution of alleged war crimes committed over the past twenty plus years by the Lord's Resistance Army (LRA) in Uganda. The move is part of an agreement reached in February between LRA leaders and the Ugandan government after nearly a year of stalled peace talks where the existence of indictments by the International Criminal Court against Joseph Kony and other LRA leaders has been a block to a permanent peace agreement. Indeed on May 25, ICC Prosecutor Luis Moreno-Ocampo told reporters that the ICC was exploring further criminal allegations against the LRA for alleged crimes committed in the months since the failed peace attempts in March and April. What the ICC seems to be missing, however, is that both the Court itself and the concept of international criminal law are winners in Uganda's creation of the special war crimes division.
The Rome Statute makes it very clear that the ICC is to serve as a court of last resort. The goal is to ensure that individuals who have evaded justice at the domestic level will not simply be free from the threat of criminal prosecution because of the lack of capacity or political will in one or two countries. Ideally, the ICC is a court that would never be needed - primarily, we would hope, because the types of abuses it has jurisdiction over will become so abhorrent as to be unacceptable to world leaders. But given humanity's willingness to engage in just about any action, no matter how horrendous, the more realistic reason that the ICC should be simply the threat rather than the implementation of justice is that individual countries will take on the responsibility of prosecuting alleged violators of the Rome Statute in their own domestic legal systems. And this is exactly what the Ugandan Executive and Judiciary are attempting to do.
By creating a special war crimes division in the Ugandan High Court, the government is taking the steps that the ICC was created to promote. This is not a failure for Ocampo or the ICC. In fact, this is the result that the ICC should be hoping for. The outstanding indictments against Joseph Kony, Vincent Otti, Okot Obhiambo, and Dominic Ongwen have been a persistent bar to the attempts by both sides to reach a permanent peace agreement. In addition, there seem to be substantial reports that the population of Uganda wishes to see these individuals face justice in their own country and not at the ICC. In this case, and certainly in cases to come, there is a very difficult and fine line that the ICC must walk between pursuing justice and preventing peace. But in this case, it seems that both objectives are obtainable if the ICC is willing to cooperate.
The population of Uganda is eager to see a peace agreement and to see the accused face trial in their own judicial system. Kony and the other LRA leaders have expressed a willingness to reach a permanent peace agreement if the ICC indictments against them are withdrawn. In fact, to the ICC's credit, it was probably the continued pressure by the ICC Office of the Prosecutor that led the LRA to reach an agreement with the Ugandan government in February that a domestic war crimes court would be acceptable. Now the ICC has the opportunity to step back from the trenches of trying to enforce indictments against the LRA that neither the Ugandan government nor, by all accounts, the people of Uganda want, and instead offer its assistance to the High Court's war crimes division on how best to go about the prosecutions. The ICC can make this division and its future prosecutions all the more effective by handing over all of the evidence they have managed to gather against Kony and his lieutenants up to this point and make their investigators and prosecutors available to the Ugandan High Court as witnesses.
But even if the ICC and the Office of the Prosecutor choose to ignore the significant benefit that cooperating with the Ugandan government on this issue, they will very quickly have little legal authority to pursue their own investigations or exercise their indictments. The Rome Statute is very clear that a case may only proceed when "the State is unwilling or unable genuinely to carry out the investigation or prosecution." (Article 17.1) Uganda's creation of the special war crimes division of the Ugandan High Court to address alleged war crimes and crimes against humanity by LRA leaders seems to be a very clear-cut indication of willingness to carry out a genuine investigation or prosecution. Even if the ICC is hesitant about whether the special war crimes division is actually undertaking a genuine investigation or prosecution, the Rome Statute provides clear instructions in Article 17.2 on how a finding of "unwillingness" may be reached. The only potential threat to the legitimacy of the Ugandan government's decision to create the war crimes division of the High Court is Article 17.2(a), which states that where "proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court" the court may make a determination of unwillingness.
There may very well be a strong argument that the Ugandan government decided to create the war crimes division of the High Court to shield the LRA officials from ICC prosecution. The ICC and the Office of the Prosecutor, however, should take a very long look at the process and instructions given to the Ugandan war crimes division and consider that it may be entirely possible for the explicit intention of the Ugandan High Court to be "shielding" the LRA officials and yet still be a court devoted to obtaining justice for the people of Uganda while creating the opportunity for a permanent peace agreement between the government and the LRA. And this is without the consideration that there seems to be a very strong desire on behalf of the Ugandan population to see the LRA leaders tried at home, rather than at the ICC; a fact which would seem to defeat Article 17.2(a)'s holding of "unwillingness."
The creation of the Ugandan High Court's war crimes division offers a chance for everyone involved in a very complicated issue to find a successful resolution. The Ugandan people have the chance to obtain a peace in their country for the first time in over twenty years and to see the perpetrators of horrible acts of violence and barbarism punished by their own judicial system. The Ugandan government gets to pursue a permanent peace agreement with the LRA and prosecute the perpetrators of two decades' worth of war crimes against its people. The LRA officials avoid ICC prosecution and have the chance to plea their case before the only judges and juries that would even consider their arguments of lawful rebellion against the government. And the ICC has been the key player in using the threat of international criminal responsibility to create a judicial body that can address the same issues of war crimes and crimes against humanity at the domestic rather than international level. Not only is this new court division a win for the ICC, it's a win for the very concept of international criminal law that the Rome Statute seeks to promote.
Wes Rist is an Adjunct Professor and Assistant Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He was a member of JURIST's student staff from 2004-2006, and served as JURIST's International Law editor from 2005-2006.
Suggested citation: Wes Rist, Why Uganda's New War Crimes Court Is a Victory for the ICC, JURIST - Forum, May 29, 2008, http://jurist.org/forum/2008/05/why-ugandas-new-war-crimes-court-is.php.
This article was prepared for publication by the staff of JURIST's academic commentary service. Please direct any questions or comments to them at firstname.lastname@example.org