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Quoted in The New Vision, ˜˜ICC May Drop LRA Charges™™ (2004).
24
The New Vision, ˜˜Drop Kony ICC Case, Say NGOs™™ (2005).
25
The New Vision, ˜˜ICC Threats Might Mar Peace Talks, Church Says™™ (2005).
203
The First Situations

that threats of arrest and prosecution undermined LRA inclinations to
participate in peace talks. ˜˜The ICC has committed a terrible blunder,™™ said
Bryn Higgs, Uganda Program Development Of¬cer for Conciliation
Resources. ˜˜The irony is that the ICC is there for a humanitarian purpose, it
wants to discourage terrible crimes with impunity, but instead it pushes
the LRA back in the bush and this leads to a continuation of the atrocities.™™
U.K. Ambassador Sir Emyr Jones Parry said, ˜˜This is about sequencing.
First you need to put an end to the con¬‚ict and move into peace. After this
comes justice and reconciliation.™™26
Speaking for the ICC, JCCD Legal Of¬cer Darryl Robinson argued that
the rate of defections from the LRA did not appear to have been slowed by
ICC involvement, and he noted that, under the Statute, an investigation
couldn™t be suspended unless it could be shown to not be in the interests of
justice.27
Aware of the beating it was taking from local commentators in Uganda,
in March 2005, the ICC OTP brought Acholi representatives to ICC
headquarters for consultations. Government supporters criticized the
visit.28 Local distrust of the LRA, of the ICC, and of the government™s
seriousness meant that the situation was very complicated. Intentionally or
not, the ICC had become politically signi¬cant locally. In March, the OTP
indicated that it would soon seek arrest warrants for Kony and some of his
top commanders.29
On April 16, following another meeting at ICC headquarters, the ICC
Chief Prosecutor and ˜˜the visiting Delegation of Lango, Acholi, Iteso and
Madi Community Leaders from Northern Uganda™™ issued a statement
noting that they had agreed to work together ˜˜to achieve justice and rec-
onciliation, the rebuilding of communities and an end to violence,™™ calling
on ˜˜local communities, the Government of Uganda, national and interna-
tional actors to join this common effort™™ and urging the LRA™s members
˜˜to respond positively to the appeal to end violence.™™ They sought the
Sudanese government™s cooperation with Uganda, the ICC, international
actors, and ˜˜all stakeholders™™ in peace efforts, and they agreed ˜˜to continue
to integrate the dialogue for peace, the ICC and traditional justice and
reconciliation processes.™™30

26
Volqvartz, ˜˜ICC under Fire over Uganda Probe™™ (2005).
27
Ibid.
28
The New Vision, ˜˜Acholi MPs Denounce for Hague Delegation™™ (2005).
29
The New Vision, ˜˜Acholi Leaders to Meet ICC™™ (2005).
30
ICC, ˜˜Joint Statement by ICC Chief Prosecutor and the Visiting Delegation of Lango,
Acholi, Iteso and Madi Community Leaders from Northern Uganda™™ (2005).
204 Building the International Criminal Court

According to a report on the meeting, Moreno Ocampo indicated some
¬‚exibility, saying he could ˜˜suspend planned prosecutions . . . to enable
peace moves to succeed.™™
˜˜As soon as there is a solution to end the violence and if the prosecution is not
serving the interest of justice, then my duty is to stop investigation and prosecution,™™
he said. ˜˜I will stop but I will not close,™™ he added. ˜˜Timing is possible but immunity
is not possible . . . . The main interest of the victims now is their life,™™ he said, not
ruling out a resumption of prosecutions even in several years™ time.31

It was an ambiguous statement that appeared designed to assuage peace
organizations™ concerns but veered close to endorsing a political role for the
Court. Inside the ICC, concerns harking back to the internal debate over the
OTP™s operational rules were reinforced. Was the OTP proceeding
according to legal standards or ¬‚irting with a political calculus?


Warrants and Politics
Inside the Court, the Prosecutor sought maximum maneuvering room for
the timing of his announcements to allow him to pursue a broad interpre-
tation of the interests of justice and the interests of victims. Having ventured
into the mine¬eld of political exigencies, his actions were open to criticism
from both sides. Commentators partial to a human rights perspective, such
as Human Rights Watch and Amnesty International, called for the imme-
diate broad indictment of suspects on the basis of criminal law criteria. On
the other side, humanitarian organizations seeking to ameliorate violence
through peace negotiations believed that justice should await peace.
On May 6, 2005, the Of¬ce of the Prosecutor (under the rules of the
Court, secretly) applied to Pre-Trial Chamber II for arrest warrants for ¬ve
LRA leaders.32 On July 8, the PTC decided that the warrants should be
issued but kept under seal until further steps for victim and witness pro-
tection were taken, and permission for publication was issued by the
Chamber. The Pre-Trial Chamber refused the Prosecutor™s request that he
be the one to communicate with the states, holding to the Statute™s desig-
nation of the Registry as the appropriate channel of communications.33 The
warrants sought the arrest of top LRA leader Joseph Kony on twelve counts
of crimes against humanity and twenty-one counts of war crimes, Kony™s

31
The New Vision, ˜˜Court Rules Out Kony Immunity™™ (2005).
32
ICC, PTC II, ˜˜Decision on the Prosecution™s Application for Warrants of Arrest Under
Article 58™™ (2005).
33
Ibid., 6“7.
205
The First Situations

second in command Vincent Otti for eleven counts of crimes against
humanity and twenty-one counts of war crimes, and three other members of
the top LRA command, Raska Lukwiya, Okot Odhiambo, and Dominic
Ongwen.34
The PTC noted that under the Statute and rules issuance of warrants is to
be justi¬ed ˜˜on the basis of circumstances and evidence existing at the time
of the application, and is not dependant or conditional on future circum-
stances,™™ thus showing its concern that the OTP might be using unstated
and possibly political criteria in its decisions about when to publicize the
warrants of arrest.35
From July until October 14, 2005, the warrants remained under seal.
Teams from the Registry and OTP traveled repeatedly to Uganda to develop
protection schemes for witnesses and victims. Meanwhile, the Prosecutor
continued to seek control over announcement of the warrants, thwarted by
the Pre-Trial Chamber™s continued rejection of his arguments and denial of
his request for leave to appeal.36
The way in which the warrants ¬nally became public demonstrated that
the ICC hadn™t yet perfected the coordination of public announcements.
During the week of September 26, William Swing, head of the UN mission
in the DRC, told a closed session of the Security Council that the arrest
warrants had been issued, and on October 6 he announced the warrants
again at a press conference. On October 7, the Prosecutor called and then,
due to PTC objections, canceled a press conference to announce the war-
rants, but a Ugandan of¬cial con¬rmed that they had been sent to Uganda,
Sudan, and the DRC on September 27. Wrangling with the Pre-Trial
Chamber continued over what parts of the warrants could be made public,
while the Pre-Trial Chamber restricted publicity in the interests, it said, of
victim and witness protection. On October 13, the Pre-Trial Chamber
¬nally unsealed the warrants, and Moreno Ocampo held his delayed press
conference. A longtime observer of the ICTY and ICTR commented, ˜˜The
¬rst steps on the road to a Uganda trial before the ICC have thus shown not
so much an independent prosecutor as a prosecution under guardianship.™™37


34
ICC, ˜˜Statement by the Chief Prosecutor on the Uganda Arrest Warrants™™ (2005).
On March 2, 2007, the Prosecutor subsequently requested that the PTC withdraw the
warrant for Raska Lukwiya due to Lukwiya™s death.
35
Ibid., 7.
36
ICC, PTC II, ˜˜Decision on Prosecutor™s Application for Leave to Appeal in Part Pre-Trial
Chamber II™s Decision on the Prosecutor™s Applications for Warrants of Arrest Under
Article 58™™ (2005).
37
Stuart, ˜˜Uganda: Reasons for a Bumpy Start™™ (2005).
206 Building the International Criminal Court


Leverage or Blockage?
Once the warrants were issued, they appeared to help pressure the LRA
leadership to sue for peace. Paradoxically, the warrants then also became
a major impediment to reaching an accord between Uganda™s government
and the rebel organization. Betty Bigombe, the former Ugandan government
minister who had been serving as an intermediary with the LRA, said that
the warrants would end mediation efforts: ˜˜There is now no hope of getting
them to surrender. I have told the court that they have rushed too much.™™38
The Sudanese government agreed to cooperate in efforts to apprehend
the LRA suspects, and it appeared from subsequent news stories that new
pressures on the LRA leaders forced them out of safe havens in Sudan. They
were tracked around northern Uganda, into the DRC and Central African
Republic, and they divided into several groups. They continued to be
dangerous to both civilians and military forces, which they demonstrated by
killing eight Guatemalan UN peacekeepers in an ambush in the eastern
Congo in late January 2006.39 Ugandan government spokesmen referred to
the LRA as no longer a serious force, but continued military efforts by the
Ugandan People™s Defense Forces to defeat them failed. Humanitarian
agencies continued to describe effects of the long-running con¬‚ict as among
the most dire in the world.40
ICC proponents argued that the Court™s involvement had positive results.
Sudan agreed not to provide the LRA with safe havens41 and permitted the
UPDF to pursue the LRA into Sudanese territory. With the LRA™s freedom of
operations increasingly constrained, it lost any hope of victory. ICC involve-
ment raised international awareness of the con¬‚ict 42 and prompted some
lower-level LRA leaders to separate themselves from the indicted top leader-
ship and to accept the amnesty offer.43 Contrarily, a late March 2006 NGO
report asserted that the ICC arrest warrants for LRA leaders had not appeared
to improve the situation ˜˜and may indeed have jeopardised the security of
civilians, sparking increases in LRA violence and attacks on humanitarian
organizations.™™44 As 2006 progressed, however, the situation began to change.

38
The New Vision, ˜˜LRA Talks Over, Says Bigombe™™ (2005).
39
The New Vision, ˜˜Kony Flees into Congo™™ (2006).
40
Civil Society Organizations for Peace in Northern Uganda, ˜˜Counting the Cost: Twenty
Years of War in Northern Uganda™™ (2006).
41
Akhavan, ˜˜The Lord™s Resistance Army Case,™™ 416.
42
Ibid., 420.
43
Ibid., 417.
44
Civil Society Organizations for Peace in Northern Uganda, op cit., 12.
207
The First Situations

Following amendment of the 2000 amnesty law to bring Ugandan law
into conformity with obligations under the ICC Statute,45 in April 2006, the
Ugandan government announced that those individuals subject to ICC
warrants would not be entitled to amnesty. Other rebel ¬ghters could gain
amnesty, and the government would still seek to negotiate the con¬‚ict™s
settlement. A Parliament member from Gulu, Regan Okumu, objected that
the peace process would be disrupted by the new law. Human rights activist
James Otto asserted that changing the amnesty law would be ˜˜to the
detriment of the children still in [rebel] captivity.™™46
In May, President Museveni announced agreement with Sudanese
authorities that if the LRA™s Kony didn™t respond positively to a govern-
ment peace offer, Uganda and Sudan would jointly undertake to ˜˜handle
him militarily.™™47 At the same time, Museveni appeared to offer Kony
a friendly inducement, again demonstrating his proclivity to use the Court
for leverage, riding roughshod over the ICC™s legal obligations. ˜˜The
President said much as Kony and four of his cohorts had been indicted by
the International Criminal Court, if he got serious about peaceful settle-
ment, the Government of Uganda would guarantee him safety.™™48
Museveni™s apparent promise of immunity from the ICC warrants
evoked an immediate response from Chief Prosecutor Moreno Ocampo in
a restrained but clear declaration that ICC procedures would not be held hos-
tage to the President™s negotiating tactics: ˜˜The governments of Uganda, Sudan
and Democratic Republic of Congo are obligated to give effect to the arrest
warrants, and we are con¬dent they will honour their commitment to do so,™™ he
was reported as saying,49 and Court spokesperson Sandra Khadouri said, ˜˜It™s
the government of Uganda that referred the situation to the International
Criminal Court in December 2003 . . . they are now under obligation and made
a commitment.™™50 With his statement, Chief Prosecutor Moreno Ocampo, who
before the warrants were issued had asserted that the timing of prosecution
activity was ¬‚exible, had hardened his position. ˜˜ ˜The defendants could chal-
lenge the admissibility of the arrest warrants,™ Moreno Ocampo told journalists.
˜But the prosecutor can do nothing. The case is in the hands of the judges.™ ™™51


45
IRIN, ˜˜LRA Leaders Not Entitled to Amnesty “ Minister™™ (2006).
46
Ibid.
47
The New Vision, ˜˜Museveni Gives Joseph Kony Final Peace Offer™™ (2006).
48
Ibid.
49
BBC, ˜˜New Overture to Uganda™s Rebels™™ (2006).
50
Frank Nyakairu & Agencies, ˜˜International Criminal Court Opposes Museveni Peace Offer
to Kony™™ (2006).
51
Anderson, ˜˜World Court Faces Biggest Challenge™™ (2006).
208 Building the International Criminal Court

While the Chief Prosecutor sought to demonstrate his lack of maneu-
verability, UN Undersecretary General for Humanitarian Affairs Jan Ege-
land said in September that he would report to Secretary-General Ko¬
Annan and to ICC Prosecutor Moreno Ocampo that ˜˜I have been told by
the people that the ICC indictment is a stumbling block to the peace pro-
cess. . . . The predominant feeling among all the stakeholders in the peace
process is that the ICC warrant of arrest should be dropped against the LRA
leaders so that a peaceful conclusion to the talks can be reached.™™52 In
October 2006, contravening an August 26 cease-¬re agreement with the
government, the LRA leadership threatened to renew the war unless the
ICC warrants were scrapped.53
President Museveni continued to issue confusing messages. In late
October he declared that the ICC warrants should be upheld, but he seemed
also to indicate that there were other possibilities. News reports quoted him
as saying, ˜˜ ˜The ICC is actually very good for us (Uganda) because it makes
the terrorists (rebels) come up to seek peace and end impunity. ICC was
created to ¬ght impunity.™ ™™ Holding out the possibility of later concessions,

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