Friday, February 6, 2015

International Criminal Court (ICC) and Uganda; who should try Dominic Ongwen?

January 10, 2015

Last week, news emerged that one of LRA’s top leaders, Dominic Ogwen, who was indicted and is wanted by the International Criminal Court (ICC) for crimes against humanity and war crimes, was captured by Seleka rebels in Central Africa Republic and handed over to US Forces. There were news reports that US Forces would transfer him to Uganda, who have expressed interest in trying him at home. Ongwen’s capture has reignited the debate on International Criminal Justice of the ICC versus Domestic Justice. The questions being asked are: Should Ongwen be tried in Uganda? What compromise can be drawn between the ICC and Uganda Court system that meets both domestic and international demands for justice? Does Uganda’s International Crimes Division (ICD) of the High Court have the necessary capacity to try Dominic Ongwen or other Lord’s Resistance Army (LRA) rebel commanders with fairness and due process? To put this debate into context, it is important to understand what the ICC is and how it works, the LRA situation, and the Uganda justice system.

The International Criminal Court
The International Criminal Court (ICC) “is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes”. It is governed by the Rome Statute – a result of a diplomatic conference that took place in Rome on 17 July 1998. Since it became into force on 1st July 2002, 123 States have as of January 6 2015 become party to the Statute. The ICC works independently but relies on the cooperation of State parties. State parties are obliged to cooperate in “arresting persons wanted by the ICC, providing evidence for use in proceedings, relocating witnesses, and enforcing sentences of convicted persons”. Uganda is a State party to the ICC and has been very active in promoting works of the Court, including hosting a Review Conference of the Rome Statute in 2010 in Kampala.

Dominic Ongwen, the LRA situation, and ICC indictment
In December of 2003, President Museveni made the first so called “self-referral” of the crimes committed by the LRA in Uganda to the ICC, seeking international support for the arrest and prosecution of LRA’s top leaders. This came after just one and half years that the Rome Statute entered in force. Subsequently, ICC conducted preliminary investigation and arrest warrants were issued for 5 top commanders; Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya. With exception of Dominic Ongwen, the four commanders are still at large.

The indictment of Dominic Ogwen contained 7 counts of criminal responsibility; three counts of crimes against humanity (inhuman acts according to the statute includes of; inflicting serious bodily injury and suffering), and four counts of war crimes (murder, cruel treatment of civilians, intentionally directing attack against civilian population, and pillaging).

Juba peace talks (2006 – 2008) and establishment of the War Crimes Division of the High Court
The Government of Uganda – LRA peace talks at some point was so successful and many had hoped would bring peace to the region. In fact, some LRA negotiators argued that ICC arrest warrants were the main obstacle to the signing of the peace agreement. This forced the Government of Uganda and other mediators to explore other possibilities including trying the indicted leaders at home and which would make the trial in the ICC inadmissible under Article 17 of the Rome Statute. As a result, the signing of the protocol on accountability and reconciliation gave birth to the establishment of the War Crimes Division (WCD) of the High Court. The High Court has since replaced the WCD with International Crimes Division (ICD) “to try war crimes and crimes against humanity including commanders of the LRA and other rebel groups”. Other crimes considered in the ICD includes genocide, terrorism, human trafficking, and piracy and other international crimes.
Genesis of anti ICC sentiments in Uganda
The origin of anti ICC sentiments in Uganda can be traced to the Juba Peace talks when the question of whether peace or justice comes first was put to a real test. Peace Panelist of the LRA argued that Kony was willing to sign a final peace agreement if the ICC withdrew the warrants. As such peace mediators, local population in Northern Uganda, and in fact some government leaders started looking at the ICC, particularly its timing as the real obstacle to peace. This new anti ICC sentiment was eventually reflected in President Museveni’s consequent public statement when he was reported in the media in March 2008 to have said Uganda referred the LRA matter to the ICC because the notorious group were not within Uganda’s territory. He reasoned, if Kony signed a peace agreement and returned to Uganda’s jurisdiction, it would be Uganda’s responsibility and not the ICC.
Today, the ICC is still widely supported in Uganda but President Museveni has in the recent years come out as a strong critic, accusing the ICC of targeting African leaders – a rhetoric often repeated by some African leaders. While these perceptions are not necessarily true, they are undoubtedly damaging the reputation of the Court which may affect cooperation and support locally for the Court.

Amidst all these, the question now is, where does it leave the trial of Dominic Ogwen? Will it be the ICC or Uganda Court? What compromise can be drawn between the ICC and Uganda Court system that meets both domestic and international demands for justice?

Complementarity and admissibility
It has been stated over and over that the ICC works to complement and not to replace national criminal justice systems. Under the principle of complementarity of the Rome Statute, “certain cases will be inadmissible even though the Court has jurisdiction”. This includes cases being investigated or prosecuted by the State. However, the Court states that a case may be admissible if such proceedings are conducted with intent to “shield the person from criminal responsibility”.

Uganda enacted the International Criminal Court Act in 2010 which will be applied in the ICD. Other laws applicable include; The Constitution of the Republic of Uganda, 1995; The Trial on Indictment Act, Cap 23; The Penal Code Act Cap 120; The Evidence Act Cap 6, and the Geneva Conventions Act, Cap. 363. These laws, legal experts recognize makes the ICD capable of implementing the complementarity regime. Conducting Ongwen’s trial in Uganda domestic Court is therefore believed, will mark a significant step in applying ICC’s principle of complementarity. ICC in this case can be on the ground to support harmonization of prosecution with international standards. 
While Uganda has a relatively well functioning criminal justice system, critics wonder if it could operate at a level necessary to support a fair trial to the magnitude that the ICC may entail. In 2005 for example, heavily armed soldiers surrounded the High Court in an attempt to Court-Martial civilians involved in allegations of treason. In 2011, the Constitutional Court ruled that Thomas Kwoyelo [former LRA commander] qualifies for Amnesty and ordered his release. However, Kwoyelo is reportedly still being detained illegally in a government prison.

Government’s interference in the judicial process, coupled with rampant public distrust of state institutions raises questions on judicial independence in Uganda. Ugandan Court is also accused of corruption, being overwhelmed with cases and understaffed, it therefore faces a huge task to foster public participation and trust in the judicial process. Should the ICC decide that Ongwen be tried in Uganda, they should work closely with, and further strengthen domestication of ‘International Criminal Prosecution’. Uganda has established the necessary laws and set up the ICD but a lot still needs to be done to ensure independence of the judicial process and respect of the rule of law.

As we ponder accountability for Dominic Ogwen and Justice for thousands of war victims in Northern Uganda, the question of accountability for lower level LRA offenders using the traditional justice mechanisms, and trial of some UPDF soldiers who, Human Rights activists accuse of committing war crimes in Northern Uganda are also yet to be addressed.

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