The ICC's possible deferral of the LRA case to Uganda

Journal of International Criminal Justice

Volumn 6, Issue 4, 2008, Pages 801-813

  Apuuli, Kasaija Phillip ^a  

^a MAKERERE UNIVERSITY   (Uganda)

Author keywords

[No Author keywords available]

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EID: 56849130861     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqn046     Document Type: Article

References (95)

1. See ICC, 'ICC Registry Officials Meet with LRA Delegation', The Hague, 10 March 2008 available online at http://www.icc-cpi.int/press/ pressreleases/344.html (visited 15 March 2008)
2. ICC, 'ICC Officials Discuss the Role of the Registry in Proceedings before the Court with the LRA Delegation', The Hague, 10 March 2008 available online at http://www.iccc-cpi.int/press/pressreleases/346.html (visited 15 March 2008)
3. Daily Monitor, 3 March 2008, 'Kony sends lawyer to ICC court'
4. Daily Monitor, 10 March 2008, 'Kony lawyers at ICC today.'
5. The New Vision, 12 March 2008.
6. See story, 'We can save Kony - President Museveni.'
7. W. Schabas, 'Complementarity in Practice: Some Uncomplimentary Thoughts,' 19 Criminal Law Forum (2008) 9.
8. ICC Press Release, 'President of Uganda refers situation concerning the Lord's Resistance Army (LRA) to the ICC', ICC20040129-44-En, 29 February 2004.
9. The five were named as Joseph Kony, Okot Odhiambo (Recent press reports suggest that he has been killed. Daily Monitor, 14 April 2008,
10. see, 'Kony kills his deputy'. Other reports indicate that he is still alive.
11. Daily Monitor, 19 April 2008, see, 'Why peace talks with Kony in Juba failed - Matsanga.'), Raska Lukwiya (He is reported to have been killed by the Uganda army in Kitgum district of Northern Uganda.
12. The New Vision, 12 August 2006, see, 'Wanted LRA leader killed.'),
13. Vincent Otti (He has since been killed allegedly on the orders of Kony. Daily Monitor, 24 January 2008,
14. see, 'Rebel Kony confirms Otti's death - Machar.') and Dominic Ongwen (Letter dated 16 January 2006 from the Charge d'Affaires a.i of the Permanent Mission of Uganda to the United Nations addressed to the President of the Security Council, United Nations Security Council, S/ 2006/29, 19 January 2006, at 25, noting that Dominic had been killed by the UPDF, but this proved not to be true).
15. It states: 'The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with this Statute if: A) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party.'
16. It states: 'A State Party may refer to the Prosecutor a situation on which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.'
17. Ministry of Finance, Planning and Economic Development (MFPED), Uganda Poverty Status Report 2005: Progress in Implementing the Poverty Eradication Action Plan (Kampala: Uganda Government Printery, 2005), 77. Cf. 'The East African', 31 March 2008 available online at http://www.nationmedia.com/eastafrican/current/News/ news310320088.htm (visited 2 April 2008) (Dr Ruhakana Rugunda, Uganda's Chief Mediator at the Juba talks arguing that Uganda took the [LRA] case to the ICC because Kony and other LRA leaders were outside the jurisdiction of Uganda).
18. P. Akhavan, 'Uganda's Submission of the First State Referral to the International Criminal Court,' 99 American Journal of International Law (2005) 403.
19. Ibid.
20. Schabas, supra note 3, 19. Cf. S. Worden, 'The Justice Dilemma in Uganda', United States Institute for Peace (USIP), February 2008 available online at http://www.usip.org/pubs/usipeace.briefings/2008/ 0222.justice.uganda.html (visited 21 April 2008) (arguing that the indictments served to put pressure on the LRA by turning their leadership into international outlaws and making it more difficult for countries like Sudan to harbour and support the movement. ICC engagement ... 'was a crucial factor in weakening support for the LRA and moving them towards ... negotiations').
21. Cited in Schabas, ibid.
22. Daily Monitor, 13 October 2006. See story, 'LRA's Otti vows to kill ICC captors.'
23. Ibid. One time delegation spokesman, Godfrey Ayoo (the LRA changed its delegation to the peace talks a number of times) is reported to have averred that, 'Our leaders will not sign the peace agreement if the warrants for the four indicted still stands. We are saying that the withdrawal of the indictments should be a pre-condition. Withdraw the case and our leaders will come out in the open and sign', The New Vision, 12 October 2006, at 1-2.
24. Daily Monitor, 26 May 2007, at 1-2. See story, 'Otti threatens war over warrants.'
25. Ibid.
26. The New Vision, 10 September 2007, at 3. See story, 'LRA will not sign incriminating peace deal, says Vincent Otti.'
27. Hansard Uganda Parliament, 7 September 2006.
28. Schabas, supra note 3, at 18. This view is supported by Worden who has observed that 'the Uganda High Court is generally well regarded and can be a visible institution for fulfilling the prosecution [of the LRA elements].' Worden, supra note 11.
29. According to Moses Serwanga, a Daily Monitor newspaper columnist, apart from municipal (local) judicial systems being prone to political interference, only a handful of Ugandan judges have the training and experience needed to handle war crimes cases. One of them is Justice Julia Sebutinde, currently working for the Special Court for Sierra Leone on The Hague-based trial of former Liberian president, Charles Taylor. The Daily Monitor, 18 March 2008.
30. See story, 'ICC integrity sitting at the crossroads' available online at http://www.monitor.co.ug/artman/publish/Moses.s/ ICC_integrity_sitting_at_the_crossroads.shtml (visited 3 April 2008).
31. See also, Amnesty International, 'Uganda Strikes Deal with LRA on Trials', 28 February 2008 available online at http://www.amnesty.org/en/ news-and-updates/news/uganda-strikes-deal-lra-trials-20080220 (visited 13 April 2008) (arguing that [there is] no evidence to suggest that even a new court established in Uganda to deal with these cases would be able and willing to do so in fair proceedings that are not a sham).
32. Also called the 'Principle Agreement' can be available online at http://www.newvision.co.ug/D/8/455/573798 (visited 15 March 2008).
33. Art. 2.1.
34. Art. 6.1.
35. Art. 6.2.
36. Refers to compensation to atone for homicide as practised in Acholi and Lango cultures and to any other forms of reparation after full accountability.
37. Mato Oput rite is a clan and family-centred reconciliation ceremony, which incorporates the acknowledgement of wrongdoing, the offering of compensation by the offender and then culminates in the sharing of a symbolic drink. In addition, the guilty party crushes a raw egg to symbolize a new beginning and then steps over an 'opobo' (bamboo stick) to represent the leap from the past to the present. At the climax of the rite, both the guilty and the wronged parties drink a brew made from the herbs of the oput tree, to show that they accept the bitterness of the past and promise never to taste such bitterness again.
38. Refers to the traditional rituals performed by the Langi to reconcile parties formerly in conflict after full accountability.
39. Refers to traditional rituals performed by the Iteso to reconcile parties formerly in conflict after full accountability.
40. Refers to the traditional rituals performed by the Madi to reconcile parties formerly in conflict after full accountability.
41. Art. 3.1.
42. Art. 3.10.
43. §14.1.
44. The Annexure to the Agreement on Accountability and Reconciliation signed between the Government of the Republic of Uganda (the Government) and the Lord's Resistance Army/Movement (LRA/M) (the Parties) on 29th June 2007 (on file with the author).
45. §3.
46. §7.
47. §8.
48. §10.
49. §13 (a).
50. §14.
51. This arose from the case of Paul K. Ssemwogerere, Zachary Olum and Juliet Rainer Kafire v. Attorney General, Constitutional Appeal No. 1 of 2002.
52. Cited in Z. Nampewo, 'Stale of Constitutionalism in Uganda: Challenges in Observance', in L. Mute (ed.), Constitutionalism in East Africa: Progress, Challenges and Prospects 2004 (Kampala: Fountain Publishers), 93.
53. Ibid., at 105.
54. Attorney General v. Paul K. Ssemwogerere, Zachary Olum and Another Supreme Court of Uganda, (Constitutional Appeal No. 3 of 2004) [2004] 2 September 2004.
55. Daily Monitor, 17 November 2005. See story, 'Armed Men disrupt Besigye Court case'.
56. Daily Monitor, 2 March 2007. See story, 'Judges on strike over court siege.'
57. Ibid.
58. Ibid.
59. Ibid.
60. See Kiiza Besigye v. Electoral Commission & Yoweri Museveni, Presidential Election Petition No. 1 of 2006, 6 April 2006.
61. See Susan Kigula and 416 Others v. Attorney General, Constitutional Petition No. 6 of 2003, 5 June 2005.
62. See Uganda Law Society (ULS) v. Attorney General, Constitutional Petition No. 18 of 2005, 31 January 2006.
63. Ibid. (noting that the High and Supreme Courts [of Uganda] are viewed to have integrity and have an established record of judgments).
64. Daily Monitor, 14 March 2008.
65. See story, 'Local judges ready to try rebels-Ogoola,' The court has been set up composed of the three judges namely: Dan Akiiki Kiiza (Head), Eldad Mwangusya (Deputy Head) and Ibanda Nahamya (Member). It has a registry office, office of the prosecutor and a office of the defence counsel. It will try serious war crimes and human rights violations perpetrated since 1987 in the northern Uganda insurgency. The New Vision, 26 May 2008, at 1 and 3.
66. See story, 'Ogoola names judges on anti-corruption, war crimes court. 'Also see, Daily Monitor, 26 May 2008, at 4.
67. 'Judges reshuffled.' Cf. Worden, supra note 11 (observing that Ugandan courts have no experience in dealing with charges involving war crimes and crimes against humanity. In addition the Ugandan criminal code lacks specific charges relating to international crimes. In order to meet the challenge of prosecuting the LRA, legal adaptations may therefore be required to meet international standards, including training members of the special judicial chamber in international criminal law, and incorporating international crimes into Ugandan criminal law, among others).
68. Daily Monitor, 14 March 2008.
69. Daily Monitor, 15 March 2008. See story. 'Museveni. ICC heading for confrontation.'
70. The New Vision, 18 March 2008. See story, 'Uganda Prisons ready to hold Kony.'
71. Ibid.
72. The New Vision, 17 March 2008. See story, 'ICC writes to Uganda over Kony,' available online at http://www.newvision.co.ug/D/8/13/617185 (visited 18 March 2008).
73. Ibid.
74. Daily Monitor, 21 March 2008. See story, 'ICC softens on Kony's case.'
75. BBC News, 'Museveni Rejects Hague LRA Trial' available online at http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/ africa/7291274 (visited 15 March 2008).
76. Daily Monitor, 15 March 2008, supra note 55.
77. Cf. The New Vision, 10 April 2008, See story, 'LRA will face the law, says govt' available online at http://www.newvision.co.ug/D/8/13/ 621642 (visited11 April 2008) (citing the Solicitor General of Uganda, Jane Kiggundu as saying that the High Court will try the 'most serious crimes' and minor ones will be subject to traditional justice).
78. Ibid.
79. Ibid.
80. Schabas, supra note 3, at 19.
81. Statement by Luis Moreno Ocampo, Prosecutor of the ICC, Fourth Session of the Assembly of States Parties, 28 November to 3 December 2005,The Hague, 28 November 2005, at 2.
82. Cf. UN Doc. S/PV. 5525, 15 September 2006, at 11 (Argentine's Ambassador to the UN Mr Mayoral, arguing that the GoU voluntarily submitted the LRA situation to the ICC, and thus once the process was initiated, it should not be stopped. He also reiterated that peace should not be achieved at the price of justice).
83. UN Doc. S/PV. 5525, 15 September 2006, at 4.
84. When Kony failed to sign the FPA on 10 April 2008, Matsanga resigned his position. Other press reports indicate that he was sacked by Kony. The East African, 14 April 2008. See story, 'Kony's refusal to sign peace deal leaves Uganda with no option but to get tough'
85. The Sunday Vision, 13 April 2008. See story, 'Kony: What went wrong?'
86. Daily Monitor, 16 March 2008. See story, 'The ICC is redundant'
87. The Sunday Vision, 16 March 2008. See story, 'LRA rebels appeal to The Hague.'
88. Ibid.
89. Ibid.
90. Ibid.
91. M. Adriko, 'Ways to Remove ICC warrants against LRA', The New Vision 20 March 2008, at 16.
92. As far as the latter is concerned, a Bill to do just that has been pending in Uganda's Parliament since 2004. Daily Monitor, 6 April 2008. See story, 'Uganda lacks laws to prosecute LRA rebels.'
93. ICC Bill 2006, Part I.
94. Ibid., Part II.
95. As of August 2008, the law spelling out the modalities of the Court had yet to be put in place. The New Vision, 12 August 2008, at 2. See story, 'Lack of Law delays Kony prosecution, says Ogoola.'