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Relva, ˜˜The Implementation of the Rome Statute in Latin American States™™ (2003), 331“66.
67
Statute Article 88: Availability of procedures under national law. ˜˜States Parties shall
ensure that there are procedures available under their national law for all of the forms of
cooperation which are speci¬ed under this Part.™™
68
Statute Article 87.7.
69
Parliamentarians for Global Action, ˜˜Parliamentary Kit on the International Criminal
Court (ICC),™™ New York and Rome (2006); the CICC posts extremely useful materials of
their own and from other NGOs regarding implementation on its Web site, <http://www.
iccnow.org/?mod=romeimplementation>.
191
ICC“State Relations

legislation for Statute implementation. Some states have assisted in this
regard too by directly, or through NGOs, funding conferences, workshops,
and seminars for parliamentarians and others.
By joining the Rome Statute, states agree to grant to the Court on their
territory ˜˜such privileges and immunities to the Court as are necessary for the
ful¬llment of its purposes,™™70 made of¬cial by the state signing the Agreement
on Privileges and Immunities of the ICC. This agreement establishes the
Court as a legal entity within the state, accords its top of¬cials diplomatic
immunity, makes it tax exempt, protects its records and property, permits it
communications facilities at least as favorable as those of any diplomatic
mission or intergovernmental organization, prevents censorship of such
communications, and grants personal immunity to States Parties™ repre-
sentatives to the Assembly, victims, witnesses, and experts before the Court,
among other things. The agreement establishes the ICC and its personnel as
the equals of other international organizations and their employees within the
territory of member states and is closely comparable to the UN Agreement on
Privileges and Immunities that serves the same purpose.71
Cooperation also entails an obligation to assist the Court in collecting
information and apprehending suspects when a state is in a position to do so “
clearly actions over which domestic authorities are supposed to have complete
control. In addition, states can cooperate indirectly with the Court by aiding
other states or organizations, notably NGOs, in their support for the Court,
and they may serve as international advocates for the Court, its Statute, and its
operations.
Well aware of the need for aligning national systems with the Statute, the
Court, friendly states, and nongovernmental organizations have made
assistance to states in developing their laws major projects in support of the
Rome Statute.72 As of February, 2007, 139 countries had signed the Statute,
and 104 had rati¬ed or acceded; 62 had signed the Agreement on Privileges
and Immunities, and 48 had rati¬ed it.73
Under the complementarity doctrine, the ICC has jurisdiction only in the
event that a state is unable or unwilling genuinely to prosecute perpetrators


70
Statute Article 48.
71
Nilsson, ˜˜Contextualizing the Agreement on the Privileges and Immunities of the
International Criminal Court™™ (2004), 559“78.
72
See; NGO CICC, ˜˜Implementation of the Rome Statute™™ (2007), for model cooperation
agreements, domestic legislation campaigns, etc. On dif¬culties in the process of
implementation, see Amnesty International, ˜˜The Failure of States to Enact Effective
Implementing Legislation™™ (2004).
73
Ibid.
192 Building the International Criminal Court

of Statute crimes. Ability is indicated, in part, by the legal system of the
state: Has it criminalized Statute crimes and enabled its own judicial system
to try appropriate cases? The more willing and able a state is domestically
to prosecute Statute crimes, the less likely crimes within its jurisdiction
would be taken up by the Court. Thus, ironically for the United States,
bringing the U.S. code into compliance with the Statute would decrease the
likelihood that U.S. citizens would fall afoul of the ICC. Since the U.S. legal
code has not been brought into conformity with the Statute, should other
states apprehend a U.S. citizen suspected of perpetrating Statute crimes,
they might either try them themselves or transfer them to the ICC (unless a
BIA prevented such an action), fearing that the U.S. legal system would not
be engaged appropriately in prosecution should the suspected transgressor
be returned home.


CONCLUSIONS

Constructivist, realist, and neoliberal institutionalist images of states™
motivations each explain parts of ICC relations with states. A constructivist
lens focuses upon ideological support or rejection of the Court. Thus, both
the affection for the Court expressed by NGOs and supportive states and
the stridency of conservative U.S. politicians™ antipathy ¬t well into the
constructivist logic. U.S. opposition to the Court™s deleterious effects on the
country™s global standing and regional alliances is primarily ideological, as
is now being demonstrated by a realist backlash. Aid cutoffs are too costly
in the view of U.S. foreign policy realists who seek the bene¬ts of assistance
even to states that acceded to the ICC Statute but refuse to conclude a U.S.
(BIA) bilateral immunity agreement.
Realists could argue that the low level of diplomatic representation to the
ASP and states™ limited willingness to ¬nance the Court re¬‚ect its limited
relevance to their relative power. They could explain U.S. opposition to the
Court, and Chinese, Russian, and Indian reluctance to join by powerful
states™ inclination to preserve maximum ¬‚exibility in the use of military
power and disinclination to subordinate themselves to cooperative struc-
tures that do not aid in promoting material objectives. The generally higher
regard for the Court exhibited by middle and weaker states would con¬rm
for realists the effort of the weak to employ international institutions to
trammel the power of the strong. These arguments imply a Court with more
coercive potential than is likely, but realism nonetheless provides a useful
framework to explain states™ general propensity to protect sovereignty and
thus to limit the ICC™s capabilities. The realist argument thus does explain
193
ICC“State Relations

the dif¬culty and risk involved in extending exercise of ICC jurisdiction
over the crime of aggression. Not only is there disagreement among Statute
parties over how far the Court should go regarding aggression, but action
on aggression will likely increase UN Security Council permanent members™
antipathy to the Court, unless the amendments grant the UNSC primary
responsibility for determining when aggression has occurred. Given the
record of the Statute negotiations, the grant by the states parties of so much
discretion over the Court to the UNSC appears unlikely; therefore, a for-
mula will most likely be found to postpone action on aggression beyond the
2009 Review Conference.
To maximize the chances of organizational survival and growth, ICC
of¬cials seek to serve the Court™s constituencies by fully implementing the
mandate, gaining legitimacy through exemplary implementation of its
procedures, and doing so ef¬ciently. This is the realm of neoliberal insti-
tutionalism. It is possible that the Statute™s primary effect will be in the
standardization of domestic law, in judicial assistance to countries develo-
ping their legal systems, and in deterrence of crime; however, these likely
will not be adequate to justify the Court™s infrastructure and personnel costs
if it isn™t seen to be doing a lot of what it was originally conceived to do “
put people on trial. The retributive justice mandate is paramount; restor-
ative justice is an increasingly important secondary objective. The next
chapter shows the complexities and dif¬culties of implementing the Court™s
core objectives.
7

The First Situations




The ICC has become deeply enmeshed in four African countries experiencing
massive criminal law violations in a web of con¬‚icts ranging from Rwanda in
the south to Sudan in the north and the Central African Republic and Chad in
the west. By mid-2007, the ICC had four ˜˜situations™™1 on its docket. The
governments of Uganda, the Democratic Republic of the Congo, and the
Central African Republic referred their own situations to the Court. The
Darfur, Sudan, situation was referred by the UN Security Council.
The four situations raised common challenges and unique problems for
the Court. The sections of this chapter begin with a description of each
con¬‚ict™s background and the sequence of events leading to the Court™s
involvement. The exposition that follows focuses on aspects of each situa-
tion that illuminate particular characteristics of the Court™s processes and
problems. Uganda, the DRC, and the CAR are all adherents to the ICC
Statute, so their self-referrals skirted the problem of situation“state non-
cooperation with the Court; however, there was the possibility that their
governments were seeking to use the ICC for their own purposes in internal
con¬‚icts. The Court would need to strive for impartiality even though it had
been invited into the countries by their governments. This problem is
sometimes called the threat of instrumentalization of the Court. Could the
Court carry out investigations and prosecutions under self-referrals without
being used by the governments?
Different forms of instrumentalization were at work in the Sudan situ-
ation. On the one hand, as in the earlier creation of the two ad hoc

1
The Statute uses the term ˜˜situation™™ to describe a con¬‚ict in which crimes are alleged to
have taken place. See ˜˜Triggers,™™ Chapter 3.

194
195
The First Situations

tribunals, the UN Security Council was turning a con¬‚ict over to the Court
about which it had been able to do very little on its own, raising the pos-
sibility that the Court was being used as a symbolic smokescreen for UNSC
inaction. On the other hand, NGOs hoped that ICC involvement, and the
threat that of¬cials might be labeled as suspects, would help to pressure the
Sudanese government to alter its behavior in Darfur.
In all four situations, NGOs were vigorous in their demands for inter-
national involvement to thwart alleged large-scale crimes. Nonetheless,
NGOs themselves disagreed over the relationship between establishing
peace and pursuing justice. The tension between these objectives was most
visible in the Uganda situation, where some (especially local) NGOs
charged that ICC involvement was interfering in a peace process. The
problem appeared to be exacerbated when of¬cials of the Lord™s Resistance
Army, for whom warrants had been issued by the Court, demanded that the
warrants be lifted as a condition for ending the violence.
Tensions over the Court™s internal division of labor and between civil- and
common-law mechanisms surfaced in each of the situations, with the Pre-
Trial Chambers and the Of¬ce of the Prosecutor jockeying for primacy. In the
Sudan and CAR situations, the PTCs publicly pressurized the OTP; the OTP
resisted what it saw as interference and continued to seek maximum inde-
pendence. In the DRC and Sudan situations, critics inside and outside the
Court argued that the Prosecutor was inadequately vigorous in his investi-
gations and too narrow when he eventually issued warrants. Then, just as
Prosecutor Richard Goldstone of the ICTY had been criticized for pursuing
a target of convenience and apprehending a low-level of¬cial when he
brought Dusko Tadic from German custody to the ICTY, so some critics
belittled the OTP™s achievement in March 2006 when it brought the ¬rst
suspect, Thomas Lubanga Dyilo, to the ICC from a Congolese prison. Sim-
ilarly, critics argued that the Sudan warrants avoided the most important
suspects, and that the CAR investigation was proceeding too slowly. The
Prosecutor™s consistent response was that he was following appropriate
investigation procedures and would bring cases to Court when the evidence
warranted.


UGANDA


Con¬‚ict Background
In November 2003, United Nations Undersecretary-General for Humanitar-
ian Affairs and Emergency Relief Coordinator Jan Egeland stated, ˜˜I cannot
196 Building the International Criminal Court

¬nd any other part of the world that is having an emergency on the scale of
Uganda, that is getting such little international attention.™™2 Con¬‚ict in Uganda
extends back to Colonial times, pitting northern against southern groups and
their organizations, over ethnicity, religion, and economic interests.
In January 1986, the southern-dominated National Resistance Move-
ment/Army (NRM/A) under Yoweri Museveni overthrew northern-based
Tito Okello˜s government after a ¬ve-year guerilla war. In May, the NRM/A
ordered former (largely northern) government soldiers to report to barracks.
Since the old army had been dominated by Acholis from the north, who had
fought against Museveni™s forces, they were deeply suspicious of the com-
mand.3 Instead of complying with Museveni™s order, many of the former
soldiers ¬‚ed to southern Sudan.
With Sudanese government support, former Okello government of¬cials
and soldiers built a rebel organization initially called the Holy Spirit
Movement (HSM) under the leadership of Alice Auma Lakwena, ˜˜a self-
styled prophetess who claimed to be a spiritual medium with the power to
perform miracles,™™4 including making her soldiers immune to bullets. After
her forces took major casualties in battle against the NRM/A in November
1987, Lakwena ¬‚ed to Kenya. In 1988, Joseph Kony, a young relative and
follower of Lakwena,5 re-formed the remnants of the HSM into what came
to be called the Lord™s Resistance Army.6
Under Kony™s leadership, the LRA adopted more standard guerilla tac-
tics, attacking civilian targets to demonstrate the government™s inability to
protect its people. In March 1991, the government™s army, the Ugandan
People™s Defense Forces, began ˜˜Operation North,™™ attacking the LRA and
supporting local defense groups mostly armed with bows and arrows. These
˜˜arrow groups™™ were organized by Acholi Government Minister Betty



2
Agence France-Presse, ˜˜War in Northern Uganda World™s Worst Forgotten Crisis: UN™™
(2003).
3
There was also a troubling echo of the past, since in 1971 when Idi Amin took power in
Uganda, he had ordered Acholi and Langi of¬cers to report to barracks, whereupon they
were massacred. Ssenyojo, ˜˜Accountability of Non-State Actors in Uganda for War Crimes
and Human Rights Violations: Between Amnesty and the International Criminal Court™™
(2005), 410 and footnote 36.
4
Akhavan, ˜˜The Lord™s Resistance Army Case: Uganda™s Submission of the First State
Referral to the International Criminal Court™™ (2005).
5
Allen, Trial Justice: The International Criminal Court and the Lord™s Resistance Army
(2006), 37, questions whether Kony and Lakwena are really related. The book is a superb
exploration of the Uganda/LRA/ICC interaction through early 2005.
6
Akhavan, op cit., 407.
197
The First Situations

Bigombe, who had been assigned to end the insurgency. The arrow groups
and Operation North failed.
The LRA established bases in southern Sudan, supported by the Khartoum
government that believed LRA pressure on Uganda would undermine
Ugandan support for the secessionist Sudanese People™s Liberation Army
(SPLA) in its con¬‚ict (1983“2005) with Sudanese governmental forces. With
an estimated 3,000 to 4,000 ¬ghters, the LRA claimed to be opposing

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