The ICC Rejects Transfer of LRA Case to Uganda
What are the implications?
A Conversation with Moses Chrispus Okello
Refugee Rights News
May 2009
On 10 March 2009, the International Criminal Court (ICC) ruled that the Court’s case against Ugandan rebel leader Joseph Kony and his commanders should continue before the ICC, despite arguments that Uganda should be allowed to prosecute the case using transitional justice mechanisms that it has been developing. This decision has been criticised in Uganda as premature and as damaging to ongoing efforts to develop a comprehensive transitional justice process.
The ICC Ruling
The Court’s decision on admissibility referred to Article 17 of the Rome Statute, which provides that a case should not continue before the ICC when it is being investigated or prosecuted by a state with jurisdiction. Further to an agreement reached during the Juba peace talks, the stalled peace process established to put an end to the Lord’s Resistance Army’s 21-year insurgency in northern Uganda, the government of Uganda is in the process of establishing domestic justice mechanisms to address crimes committed during the conflict. These include a number of complementary measures from adapting traditional justice to formal prosecutions for war crimes by a Special Division of Uganda’s High Court.
On 10 March 2009, the Pre-Trial Chamber II (PTC II) of the ICC decided to examine the matter of its own initiative, using its powers under Article 19(1) of the Rome Statute, and address whether the new domestic mechanisms were sufficient to divest the ICC of jurisdiction. In its decision to retain jurisdiction, PTC II stated that pending the adoption of all relevant legal texts and the practical implementation of the agreement reached at Juba, the scenario against which the admissibility of the case has to be measured remained the same as that at the time the warrants were issued: one of “total inaction” on the part of governmental authorities. Accordingly, PTC II found no reason to review the positive admissibility determination made prior to the issuance of the warrants. It is important to note, however, that another challenge to admissibility may be lodged at a later date by the Ugandan government or by any of the accused.
“Give Them Time”
Moses Chrispus Okello, the head of the Refugee Law Project’s Research and Advocacy Unit and a prominent expert on transitional justice in Uganda, disagrees with PTC II. More specifically, he believes its determination was premature and failed to consider the breadth of the situation in Uganda.
The Juba agreement provides that a special division of the High Court of Uganda will try those suspected of international crimes. The Special Division of the High Court, however, is but one of a range of transitional justice mechanisms the government of Uganda’s Justice, Law and Order Sector (JLOS) – the inter-ministerial working group charged with transitional justice in Uganda – has been working to establish since the February 2008 signing of the Juba agreement.
Okello, who has been collaborating with JLOS, explains that in addition to the Special Division of the High Court, JLOS is debating the contours of a truth and reconciliation process for Uganda (the statute of which Okello took the lead in drafting), traditional justice mechanisms, and an “integrated systems” sub-committee, the role of which will be to synchronise the work of the these mechanisms.
Since he started working with JLOS when it was established a year ago, Okello feels that the working group has made significant progress. After many months of study, deliberation and planning, including missions to Liberia and South Africa to gain an understanding of those countries’ experiences of transitional justice, Okello feels that JLOS working group members are now “asking the right questions”. “When I started working with JLOS a year ago, they were asking questions like ‘what is a war crime?’ but now they are thinking about things like the retroactive application of the law.”
Okello wonders why PTC II rushed to address the admissibility question without giving Uganda time to build the capacity of its transitional justice institutions. On the whole, Okello worries that the Court’s narrow view, and failure to acknowledge the significant progress he has witnessed, may undermine JLOS’s progress to date.
Whose Justice?
Okello also notes that PTC II’s decision focused almost exclusively on the Special Division of the High Court, despite the fact that it is only one of a menu of transitional justice options being developed in Uganda. This has caused Okello to become concerned about what he calls the ICC’s “one-way street” or “top-down approach” to complementarity.
When making admissibility determinations, the Court is guided specifically by Articles 17(2) and 17(3) of the Rome Statute, which lay out general guidelines for assessing national proceedings, but more generally by Article 21, which describes the law applicable at the ICC. In addition to applying the Rome Statute, the Elements of Crimes document and the Court’s Rules of Procedure and Evidence, the ICC applies “applicable treaties and the principles and rules of international law”. Okello worries about the kind of assessment of "principles of international law" made by the PTC II in its interpretation of the Statute and its application to Uganda, where retributive concepts of justice may be less relevant than restorative ones.
“The conditions under the Rome Statute that must be met for a domestic process to divest the ICC of jurisdiction are evidence of a disregard for other ways of doing things,” Okello explains. According to Okello, people in Uganda are more concerned with reparations than retribution. He illustrates his point with an example: if a family breadwinner is murdered in Uganda, in most cases the lives of those left behind will become more difficult not just because of the grief caused by the loss of a loved one, but also because the family’s livelihood will have been negatively affected. The family is more likely to see justice as having been done if they are compensated for their lost income than if the perpetrator is sent to prison. Such socioeconomic dimensions of justice have so far been ignored by so-called international criminal law. This is Okello’s “one way street of international justice”.
The Way Forward
The solution, according to Okello, would be the creation of a mechanism that allows diverse conceptions of justice, such as those prevalent in Uganda, to influence the system of international criminal justice, rather than the unidirectional influence of traditional international criminal law that currently prevails. A first step towards the creation of such mechanisms would be to develop new conceptions of justice that consider victims’ subjective experiences of violation. Okello acknowledges, however, that this will be difficult, especially because the Western legal systems on which “international” criminal law is based are predicated on the application of broad general principles to specific factual scenarios. Okello’s proposition involves turning this system on its head and starting with victims’ particular situations – essentially a shift away from an objective towards a subjective conception of justice. Okello does not know whether this shift is realistic. What is clear, he says, is that so far, international criminal justice is philosophically underdeveloped, yet it operates in a patronising fashion.