. 37
( 54 .)


he reportedly continued:
˜˜To ask the ICC to withdraw the warrant without any remedy is to condone
impunity. . . . Here is a terrorist you have not reconciled with and you throw away
the stick? We need to ¬rst create a new situation then we can talk to the ICC. I™m
told it can review it.™™ The President said since it is Uganda that complained to the
ICC, in case the rebels came out for peace, the government would tell the world
court that ˜˜a new situation has arisen and the people have found an alternative
method of con¬‚ict resolution.™™54

The August truce was extended on November 1,55 and again in December
when the Sudanese mediator, southern Sudan Vice President Reik Machar,
announced that an LRA delegation would visit the ICC in The Hague to
˜˜plead for the lifting of the indictment the court placed on the top rebel
commanders.™™56 At the end of the month, Kony sent a message to Muse-
veni, quoted in press reports saying, ˜˜The ICC should leave Uganda to
handle the issue of accountability since Uganda has a functional justice
system with jails in Luzira, Lugore etc.™™57 It appeared that the LRA was
becoming acquainted with the legal details of ICC admissibility criteria. The

Matsiko et al., ˜˜Kony Charges a Stumbling Block, Says U.N. Chief™™ (2006).
Kwera, ˜˜Uganda Violence™™ (2006).
Muyita et al., ˜˜Museveni Insists on Kony ICC Arrests™™ (2006).
The New Vision, ˜˜The New LRA-Uganda Truce™™ (2006).
Mukasa, ˜˜LRA Truce Extended for 2 Months™™ (2006).
IRIN, ˜˜IDPs Unlikely to Meet Deadline to Vacate Camps™™ (2006).
The First Situations

truce expired in February, was renewed in April and again at the end of
May 2007. Peace advocates argued that local justice mechanisms could be
engaged to bring the LRA ¬ghters back into the Acholi community; how-
ever, some local and major international human rights groups argued that
the proposed ˜˜traditional™™ form of reconciliation (called matu oput) would
not ful¬ll international justice standards and was not appropriate for the
kinds and scale of crimes with which the LRA leadership was charged.58
LRA and local peace spokesmen continued to assert that the ICC warrants
were the main sticking point preventing a peace agreement.59
The ICC warrants initially appear to have done just what Museveni
sought “ to promote regional cooperation between the Sudan, Congo, and
Uganda to end the LRA™s freedom of maneuver and to thereby raise the
threat level against Kony and the LRA. The same cooperation should have
made arrest of the LRA leaders possible, ful¬lling Moreno Ocampo™s
objectives. But then, given Kony™s demand that the warrants be lifted as
a condition for peace, Museveni™s and Moreno Ocampo™s objectives appear
to have diverged. How could the con¬‚ict be ended without violating the
ICC™s commitment to prosecute crimes under its Statute? Museveni™s many
maneuvers seemed to imply that some formula might be found whereby
a domestic solution to countering impunity could be offered to ICC judges;
who might then ¬nd proceeding with a Court trial to be against the interests
of justice. The dilemma remained, however, that after the warrants were
issued, such a ¬nding could be made only after the suspects were arrested,
turned over to the Court, and appeared before the Pre-Trial Chamber for
con¬rmation of the charges. The Prosecutor, meanwhile, had seemed to
turn from statements about his ¬‚exibility toward the shelter of a narrower
understanding of his judicial responsibilities, leaving to the judges
any decisions about whether the ˜˜interests of victims™™ or the ˜˜interests of
justice™™ might be served in ways other than bringing the suspects to trial.
For the ICC, the Uganda referral appeared to be a great ¬rst opportunity.
The con¬‚ict situation had produced massive casualties and civilian dis-
placement, the alleged suspects were internationally reviled, and the friendly
government™s request for help avoided a clash with sovereign prerogatives.
Once involved, however, the OTP discovered escalating complexities. The
Prosecutor roused the suspicions of human rights groups when he appeared
to focus on the LRA rather than crimes generally in northern Uganda,

Human Rights Watch, ˜˜Benchmarks for Assessing Possible National Alternatives to
International Criminal Court Cases Against LRA Leaders™™ (2007).
Okeowo, ˜˜LRA and Ugandan Government Renew Truce™™ (2007).
210 Building the International Criminal Court

including the government™s UPDF. Making upholding the appearance of ICC
neutrality even more dif¬cult, President Museveni never seemed quite to
grasp “ or perhaps to respect “ the Court™s ultimate purpose of serving as an
agent of international justice, as opposed to a source of leverage for his own
machinations. Despite apparent popular northern Ugandan support for the
idea of accountability, local peace groups increasingly accused the ICC of
obstructing peace. The OTP responded with an increasingly vigorous out-
reach program, including bringing Ugandan NGO representatives to The
Hague while the search went on for some way to reconcile the LRA leaders™
quest to have the ICC warrants lifted with the Ugandan government™s duty to
implement its obligations under the ICC Statute. In its ¬rst situation, the
Court continues to face the dilemmas of promoting peace to save civilian lives
while seeking to uphold accountability during an ongoing con¬‚ict.


On March 17, 2006, the ICC received its ¬rst suspect into custody when
Thomas Lubanga Dyilo was transferred from the Democratic Republic of
the Congo to the Court™s prison facility in Scheveningen, outside The
Hague; the case instantly became historic and subject to close international
scrutiny. As the Court™s processes slowly unfolded, the tensions deepened
between the Pre-Trial Chamber and the Of¬ce of the Prosecutor, and NGOs
became increasingly impatient with the slow pace and narrow scope of the
case. Despite the cavils and disappointments, the case broke new ground
even before it reached trial stage. Criteria for granting victim status even at
early stages in the proceedings were developed in decisions of the Pre-Trial
Chamber, and routines for sharing information between the prosecution
and defense were worked out.

Con¬‚ict Background
According to a 2006 report in the medical journal The Lancet, civil and
international con¬‚ict in the Democratic Republic of the Congo from 1996
claimed approximately four million lives.60 (For comparison, the 2005 esti-
mated population of the country was approximately sixty million people, so
7 percent of the country™s population can be considered war casualties.)61

Brennan et al., ˜˜Mortality in the Democratic Republic of Congo: A Nationwide Survey™™
(2006), 44“51.
CIA, The World Fact Book online. Democratic Republic of Congo.
The First Situations

The human costs were produced by direct combat, large attacks against
civilians, malnutrition, and the collapse of medical facilities and other sec-
ondary effects of the long-running con¬‚ict.
The war, one of the deadliest since World War II, swelled in part from the
regional population movements and rivalries that boiled over from the 1994
genocide in Rwanda and in part from the disintegration of the regime of
President Mobutu Sese Seko. As the Tutsi Rwandan Patriotic Front conquered
Rwanda, ending the genocide, Rwandan Hutus, including Interahamwe gen-
ocidaires, ¬‚ed into Zaire, where they were housed in huge refugee camps that
themselves became centers of con¬‚ict and coercion. The inability of Mobutu™s
government to secure the region led the new Rwandan authorities to be very
concerned about controlling violence that could spill back into Rwanda. In
1996, with Rwandan and Ugandan support, prominent Zairian opposition
leader Laurent Kabila led a revolt and military takeover that toppled President
Mobutu after more than thirty years of dictatorial rule. Kabila™s forces cap-
tured the capital of Kinshasa on May 17, 1997, and Kabila renamed the
country the Democratic Republic of the Congo. During the next two years, his
Ugandan and Rwandan Tutsi supporters turned against him. Forces from
surrounding countries entered into the con¬‚ict, all sides seeking to control the
region™s mineral wealth. Angola, Namibia, and Zimbabwe supported Kabila;
Rwanda and Uganda supported antigovernment militias, including those led
by Thomas Lubanga Dyilo and by future coalition government Vice President
Jean-Pierre Bemba. While Lubanga resided in prison, Bemba was the leading
opponent of Joseph Kabila in the DRC™s 2006 presidential election, a role that
some observers suspected might have prevented action against him by the ICC
in connection with forces under his control in the Congo and in the Central
African Republic.62
On July, 10, 1999, a cease-¬re was signed in Lusaka, Zambia, by the six
countries. By then, the anti-Kabila forces controlled most of the north-
eastern half of the country, and the cease-¬re had little effect. At the end of
September, UN Security Council Resolution 1279 created the United
Nations Mission in the Democratic Republic of the Congo (MONUC) to
enforce the agreement. In February 2000, the UN Security Council
approved deployment of 5,537 peacekeepers to monitor the cease-¬re.
Meanwhile, on January 17, 2001, Laurent Kabila was assassinated in
a failed coup attempt, and his son Joseph emerged as President. Throughout
the period, ethnic con¬‚ict was rampant in the northeast, most intensely in

Penketh, ˜˜Extermination of the Pygmies™™ (2004); Kajee, ˜˜World Court Probes Ex-African
Leader™™ (2006).
212 Building the International Criminal Court

the Bunia and Ituri districts, where Rwandan- and Ugandan-supported
militias operated. In December 2002, a peace agreement was signed among
government, rebel, and opposition groups at Sun City, South Africa,
establishing a power-sharing arrangement for a transitional government
that then took of¬ce in July 2003. Although the general level of violence
declined, serious local outbreaks continued as militias jockeyed for political
position and control of mineral-rich areas.

The DRC government deposited its rati¬cation of the ICC Statute along with
nine other states on April 2002 whose joint action started the sixty-day clock
ticking to bring the Statute into effect. In July 2003, the newly appointed Chief
Prosecutor announced that, having studied the submissions, he would ˜˜closely
follow the situation in the DRC,™™ and in September he reported that he would
be prepared to seek authorization from a Pre-Trial Chamber to start an
investigation under his proprio motu powers but would prefer to work with the
Congolese authorities.63 Moreno Ocampo urged President Kabila to refer the
DRC situation to the Court, and in April 2004, Kabila sent Moreno Ocampo
a letter seeking ICC investigation of possible crimes within the jurisdiction of
the Court committed anywhere in the territory of the DRC. The Uganda
referral had come in January; now the ICC had its second situation.

Like Museveni™s, Kabila™s decision to refer the DRC situation to the Court
appears to have been motivated signi¬cantly by his own political calcula-
tions. He had entered politics after the assassination of his father in January
2001 and had little record until then of participation in the con¬‚icts ravaging
the country.64 The ICC™s temporal jurisdiction began on July 1, 2002, so only
crimes committed after that date could come under its purview. Compared
with other DRC political and military leaders, Kabila had little to fear from
the Court.
His referral to the ICC apparently came about because he saw that he
could gain from it both domestically and internationally. ˜˜The ICC was

ICC, ˜˜Prosecutor Receives Referral of the Situation in the Democratic Republic of Congo™™
Burke-White, ˜˜Complementarity in Practice: The International Criminal Court as Part of a
System of Multi-level Global Governance in the Democratic Republic of Congo™™ (2005),
565, citing Edgerton, The Troubled Heart of Africa: A History of the Congo (2002).
The First Situations

exploited right from the start. It suited Kabila as a weapon against his
adversaries,™™ said a lawyer from the region quoted anonymously in 2004.65
The transitional government included vice presidents and ministers from
a broad spectrum of political parties within the DRC, including former
enemies in the con¬‚ict. Because of the others™ reputations and records “ and
the continuing violence in the northeast after July 1, 2002 “ ICC involvement
threatened them. Their indictment would likely impair their political chances
or even remove them from electoral contention, strengthening Kabila.
Because of the weakness of the Congolese judicial and police systems,
Kabila could not be sure that the local justice system would operate effec-
tively against his powerful adversaries, nor that the courts would be or
appear impartial. The ICC could provide a surer route to trials. His will-
ingness to engage international justice could improve his international
standing particularly with the European Union and France, which had
strongly encouraged him to accept ICC jurisdiction.66
The referral appears to have had some cautionary effect. In an interview
in 2003, Thomas Lubanga Dyilo, head of the Union of Congolese Patriots
(UPC), an Ituri-region political and (allegedly) militia organization, said
that ˜˜the Court has been a pressure on the political actors who were killing
people . . . these people are very afraid today to commit such slaughter.™™67
Another regional leader, Xavier Ciribanya, said, ˜˜Many here in the East are
afraid the Court will come. . . . We all now are thinking twice. We do not
know what this Court can and will do.™™68
The referral also apparently affected internal Congolese political
dynamics. Following the Prosecutor™s announcement, some government
of¬cials launched reforms of the national judiciary and sought to establish
a truth and reconciliation commission.69 From the standpoint of the Pro-
secutor™s of¬ce, however, the reforms did not ¬rmly establish a basis on
which to terminate investigations, particularly as Kabila™s government
continued to support the Court™s involvement.

To carry out investigations, the OTP sought help from organizations on the
ground in the area “ the United Nations™s peacekeeping force, MONUC,

Cruvillier, ˜˜ICC Joins the Congolese Chess Game™™ (2004).
William Burke-White, personal communication (3/21/06).
Interview cited in Burke-White, op cit., 588.
Ibid., 570.
214 Building the International Criminal Court

and local and regional NGOs. MONUC could help to provide ICC of¬cials
with transportation, communications, and security, but relations between
MONUC and the ICC were not simple.
Traditional UN peacekeeping rests on the presumption of force neu-
trality. Once peacekeeping forces are perceived not to be neutral, they
become potential targets of combatants who believe their interests threat-
ened or damaged by the peacekeepers™ actions. To the extent that the ICC
seeks the arrest of leaders, it may be a threat to local political actors and to
the impartiality of organizations that support its efforts. UN of¬cials were


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( 54 .)