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Article Excerpt
[In 2004, the conflict in northern Uganda became the first situation to be referred to the International Criminal Court ('ICC'). Although an investigation was initiated by the Office of the Prosecutor ('OTP') and arrest warrants were issued in 2005 for five leaders of the rebel Lord's Resistance Army ('LRA '), no defendants have as yet been brought before the Court. The referral has been dogged with controversy from the beginning. In 2006, negotiations began between the Government of Uganda and the LRA aimed at ending the conflict, with suggestions that any peace agreement include an amnesty for crimes committed during the conflict. This" commentary considers the various legal and policy issues involved in the referral and the consequent investigation. It examines the legality of Uganda's "self-referral' and the propriety of the Prosecutor of the ICC's criteria for case selection. The arrest warrants and subsequent proceedings at the Court are considered, and the implications for the Court's continuing involvement of any amnesty are analysed. The commentary concludes by assessing the implications of the situation for the ICC's credibility and continuing effectiveness.]
CONTENTS I Introduction II The Situation in Northern Uganda III Uganda's Self-Referral IV Criticisms of the Referral and Investigation V The Arrest Warrants VI Subsequent Developments A At the Court B On the Ground
I INTRODUCTION
In December 2003, the Ugandan Government referred the 'situation concerning the Lord's Resistance Army' to the Prosecutor of the International Criminal Court ('ICC'). (1) On 29 January 2004, the Court announced its first referral. (2) Six months later, the Prosecutor announced that, having determined that the requirements in the Rome Statute of the International Criminal Court ('Rome Statute') (3) had been met, he had decided to open an investigation into the situation concerning northern Uganda. (4) On 14 October 2005, it was announced that arrest warrants had been issued for five leaders of the Lord's Resistance Army ('LRA'): Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen. (5) The warrants had been issued by Pre-Trial Chamber II on 8 July 2005 but had been kept under seal. (6) They alleged that the LRA leaders had committed multiple counts of crimes against humanity and war crimes. (7)
Since then, however, there has been little apparent progress. The warrant and requests for arrest and surrender have been transmitted to Uganda and its neighbours Sudan and the Democratic Republic of Congo ('DRC'). (8) Interpol has issued 'Red Notices', (9) requesting its 184 Member States to arrest and detain the five LRA leaders with a view to their surrender to the ICC. (10) Furthermore, one of the named LRA leaders, Raska Lukwiya, has been confirmed dead. (11) He was reportedly killed during a firefight between the Ugandan People's Defence Force ('UPDF') and the LRA on 12 August 2006. (12) More significantly, however, none of the persons for whom arrest warrants have been issued have been apprehended. Negotiations aimed at ending the conflict in northern Uganda opened between the Ugandan Government and the LRA in 2006. According to credible reports, these negotiations included discussion of a possible amnesty for the LRA leadership. (13) Although in its communications with the Court the Ugandan Government has stated that it will continue to comply with its obligations under the Rome Statute, other statements suggest otherwise. (14) As the Rome Statute does not expressly provide for national amnesties, the Court may be put in an embarrassing position that could severely damage its credibility.
Indeed, the referral has been controversial from the beginning. The legality of self-referrals in general has been questioned; (15) whilst the form of the referral itself led to suspicions that the Ugandan Government was using the Court as a weapon in its conflict with the LRA. (16) In particular, there was a concern that the Office of the Prosecutor ('OTP') might only investigate the activities of the LRA and ignore those of the UPDF, (17) which has also been accused of committing human rights violations in northern Uganda. (18) Other commentators have suggested that an ICC investigation would exacerbate the conflict, not least because ICC prosecutions would trump amnesties granted under the Amnesty Act 2000 (Uganda) ('Amnesty Act'), adopted to encourage the surrender of LRA fighters. (19) Some groups in northern Uganda and their non-governmental organisation ('NGO') supporters have also argued that indigenous justice mechanisms are best suited to ending the conflict and encouraging reconciliation between the LRA and its victims. (20) Others have worried about whether the investigation itself might put victims and witnesses of LRA activities in danger. (21)
This commentary will examine both the legal implications of developments at the Court and the validity of the criticisms made of its activities. A brief introduction will set the referral in its historical context. A number of issues will then be considered, including the law and politics of Uganda's 'self-referral', and the criticisms made concerning the Court's involvement in the situation. Particular attention will be paid to the OTP's alleged selectivity in its pursuit of the LRA leadership. The arrest warrants issued by the Court for five LRA leaders in July 2005 will be examined and subsequent developments, both at the Court and on the ground, will be described. As suggestions have been made that any peace agreement might include an amnesty for crimes committed during the conflict, the effects of such a provision on the Court's jurisdiction and the Prosecutor's ability to discontinue proceedings will be considered. Finally, the commentary will consider how the Court might be extricated (or not) from its current dilemma and the implications of this situation for the Court's continuing effectiveness.
II THE SITUATION IN NORTHERN UGANDA (22)
Divisions between north and south, exacerbated, if not created, by the colonial authorities, have been the dominant theme in Uganda's post-independence politics. (23) The LRA has its origins in northern Ugandan political unrest following the January 1986 overthrow of General Tito Okello's regime by the National Resistance Army ('NRA'), led by Yoweri Museveni. (24) Okello had come to power as the result of a coup by Acholi soldiers in the Uganda National Liberation Army ('UNLA'), the then-national army. (25) Following their defeat by the NRA, members of the UNLA retreated north to Acholiland and Southern Sudan, setting up a number of armed opposition groups, the most significant of which was the Uganda People's Democratic Army ('UPDA'). (26) The unrest in Acholiland also led to the emergence of local spirit mediums--individuals claiming to be able to communicate with spirits for healing and divination purposes--as political leaders and military commanders. (27) In August 1986, one such spirit medium, Alice Auma Lakwena, established the Holy Spirit Movement. She led her followers south towards Kampala but was defeated and her forces dispersed. (28) Most of the UPDA surrendered to the Ugandan Government in 1988. (29)
The remnants of these various movements, however, coalesced to form two new groups, both inspired by the example of Alice Lakwena. One of these groups was led by Alice's father, Sevarino Lukoya, the other by Joseph Kony. (30) Lukoya's movement, the Lord's Army, was defeated in 1989. (31) However, Kony's group, the LRA, has persisted until today. Joseph Kony claims to be both a relative of Alice Lakwena and a spirit medium. (32)
The LRA has maintained a guerrilla campaign against the Ugandan Government and those it considers to be its collaborators. (33) The conflict has been concentrated in Acholiland--in the Gulu, Kitgum and Pader districts (34)--but has also spilled into the neighbouring districts of Lira, Apac, Adjumani, Kumi and Soroti. (35) Since 1994, the LRA has received support from the Sudanese Government, which has permitted the LRA to base itself in Sudanese territory. (36) A key tactic of the LRA has been the abduction and forcible recruitment of young people, including children, into its ranks to serve as soldiers, porters and 'wives' (sex slaves). (37) In general, the LRA has avoided battle with the UPDF, seeking instead to terrorise the local population, in particular, engaging in the killing and mutilation of civilians, and the looting and destruction of civilian homes and property. (38)
As a major result of the conflict, a large proportion of the northern Ugandan population has been moved out of the countryside into towns and internally displaced person ('IDP') camps. (39) It has been estimated that by mid-2005, over 1.5 million people were living in IDP camps in the region. (40) These people largely depend on United Nations World Food Programme handouts and suffer from high mortality rates, particularly among children, as proper sanitation and healthcare in the camps are lacking. (41) Fatal outbreaks of meningitis, cholera and measles were reported in the camps in 2006. (42) The atrocities committed by the LRA may be better publicised and more immediately appalling but, as Tim Allen states, '[p]eople in the IDP camps live in a place of extraordinary structural violence'. (43)
The movement of the northern Ugandan population into IDP camps has been an element of the Ugandan Government's counterinsurgency policy. (44) Instances of forced displacement and other human rights violations have been credibly alleged against the UPDF. Indeed, a highly critical report issued by Human Rights Watch in September 2005 accused the UPDF of arbitrary arrests and detentions, the wilful killing of civilians, rape and torture. (45) Furthermore, it claimed that civil and military authorities had made few efforts either to investigate such allegations or prosecute those responsible. (46) Although the LRA has little popular support, many in northern Uganda view the UPDF as an occupying force and see themselves as caught 'between two fires'. (47)
While the Ugandan Government has largely pursued a military solution to the conflict, it has also passed the Amnesty Act in an effort to encourage the surrender of LRA fighters. (48) This offers pardon to all Ugandans engaged or engaging in acts of rebellion against the Government of Uganda since 26 January 1986 and establishes an Amnesty Commission to oversee the granting of amnesty. (49) President Museveni initially opposed the Act and only reluctantly assented to it, but it does have strong supporters, particularly in northern Uganda and among NGOs. (50) By mid-2004, over 5000 adult LRA fighters had surrendered and applied for amnesty, although the number coming forward has since diminished to a trickle. (51)
Many of those who lobbied for and supported the Amnesty Act have also argued for reconciliation at the local level through 'traditional' justice mechanisms. Prominent supporters have been the Acholi Religious Leaders' Peace Initiative, dominated by local Catholic and Anglican clergy, and the Council of Elders Peace Committee and the Council of Chiefs, which are associations of Acholi traditional leaders. (52) The first group has emphasised forgiveness in accordance with Christian teachings, (53) whilst the latter has argued for indigenous justice and healing mechanisms as performed by traditional leaders. (54) Local and international NGOs have supported such initiatives as promoting 'restorative' rather than 'retributive' justice, and for being more in accordance with Acholi culture. (55) Such rituals are often referred to as mato oput, which, although not wholly accurate, 'has become a sort of euphemism for healing rites or blessings performed by the rwodi moo (anointed chiefs), which promote reintegration of former LRA combatants into society by offering "forgiveness"'. (56) Whether such beliefs are entirely reflective of popular opinion in Acholiland, and, indeed, the extent to which such rituals embody, rather than co-opt, Acholi traditions has been questioned. (57) Their proponents, however, have been vocal critics of the ICC's involvement in the conflict in northern Uganda. (58)
Before examining these criticisms, the legality of referring the situation in northern Uganda to the Court will be considered.
III UGANDA'S SELF-REFERRAL
The ICC's jurisdiction may be triggered in three ways: when a situation is referred to the Prosecutor by a State Party to the Rome Statute under art 14; when it is referred by the Security Council acting under Chapter VII of the Charter of the United Nations; or when the Prosecutor initiates an investigation proprio motu. (59) It was originally thought that state referrals would be rare, not least because provisions for interstate complaints in human rights treaties have remained largely unused. (60) What has developed, however, is a practice of 'self-referral', whereby state parties refer situations occurring in their own territory to the Court.
This development was prefigured in an early policy paper by the OTP. (61) Discussing the complementary nature of the Court and the exceptions to the primacy of state jurisdiction set out in art 17 of the Rome Statute, the paper commented:
There is no impediment to the admissibility of a case before the Court where no State has initiated any investigation. There may be cases where inaction by States is the appropriate course of action. For example, the...
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