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Ugandan Rebels to Appeal ICC Warrants

Request to drop warrants against the Lord’s Resistance Army will be met with caution and scepticism.
By IWPR ICC
Negotiators for the Ugandan rebel Lord’s Resistance Army who are in The Hague to find out the procedure for getting the International Criminal Court to drop warrants for the arrest of its leaders say the court’s case is “redundant” and “null and void”.



In an exclusive interview for IWPR, David Matsanga, chief negotiator for the Lord’s Resistance Army, LRA, said the arrest warrants were no longer necessary because the Ugandan government had agreed to set up a special court to try the rebels, including their leader Joseph Kony. He said his team would be filing a motion with the International Criminal Court, ICC, to have the warrants withdrawn.



“There is no need for the indictments to remain being held against our people,” Matsanga told IWPR in The Hague.



His comments came as Ugandan president Yoweri Museveni publicly announced during a trip to London that LRA rebels will face justice inside the country, at the request of their victims, instead of standing trial at the ICC.



The LRA has always insisted that ending the ICC indictment process must be a precondition for signing a final peace deal with Kampala. But Museveni’s statement adds more weight to the rebel delegation’s current efforts in The Hague.



Matsanga said the agreement on local trials, reached with the Ugandan authorities late last month after a year and a half of negotiations in Juba, South Sudan, negated the need for an ICC trial,



“If the government of Uganda will not hand Kony over to the ICC, it makes their case null and void,” he said. “The [ICC] prosecutor cannot do anything if the state will not apprehend Kony. The prosecutor is left redundant.”



On March 10, the LRA delegation, led by Matsanga and also numbering several lawyers and advisors, met members of the ICC Registry including senior legal advisor Phakiso Mochochoko.



Mochochoko told IWPR that the delegation harboured several misconceptions about the way the court operates, and that the meeting was an opportunity to explain the ICC’s structure, the requirements governing the representation of suspects, and the procedure for filing motions with judges.



INTERNATIONAL JUSTICE SEPARATE FROM PEACE PROCESS



After the meeting, Mochochoko was adamant that the ICC arrest warrants remained in place. He said a distinction must be drawn between political and legal processes.



“The LRA and government of Uganda are pursuing a political process, but the ICC is pursuing a legal process,” he said. “As far as the ICC is concerned, the arrest warrants remain valid and enforceable, and the expectation from the court is that the government of Uganda should enforce them. The matter came to the court through a legal process, and it can only go out of the court through a legal process.”



Mochochoko said the registry would continue providing the delegation with information on procedural matters, and to facilitate the work of defence lawyers who might represent the LRA before the court.



Louise Khabure, a Uganda expert with the International Crisis Group, a Brussels-based think tank, said the meeting itself was a positive step.



“Contrary to fears that the LRA delegation would not be received if they went to the ICC, they had a positive reception and found the meeting optimistic,” she said.



The ICC got involved in Uganda following a request President Museveni made in 2003 to investigate atrocities in the north in the course of the long-running war with the LRA. In 2005, judges issued warrants for the arrest of Kony and four of his top commanders, two of whom have since been killed.



Kony and his allies are charged with war crimes and crimes against humanity, including attacking civilians, murder, abducting children and enlisting them to fight, sexual enslavement and rape.



Over the last 18 months, the ICC has been careful not to be seen to be undermining the Juba peace talks through its insistence that justice be served, but it has held to its position that the arrest warrants still stand.



At the same time, Mochochoko stressed that the ICC exists to complement national justice systems; it supports national proceedings and only acts if those systems are unable or unwilling to do cope themselves.



“If those systems are genuinely able to investigate and prosecute, the court will have nothing to do with it,” he said.



ICC prosecutors told IWPR they could not comment on any agreements made outside the court, but insisted the warrants remained in effect. “They have to be executed, the top LRA commanders have to be isolated, marginalised, must receive no support, direct or indirect, and must be surrendered to the court,” said a prosecution representative.



Now that a peace deal between the Ugandan government and the LRA looks almost certain, ICC judges have asked Kampala to explain the impact this would have on Uganda’s 2003 request for the court to launch investigations, and on the arrest warrants that have ensued.



They asked for information on the “impact of the establishment of the special division of the High Court of Uganda and of recourse to traditional justice mechanisms or other alternative justice mechanisms on the execution of the warrants, and on the cooperation provided by Uganda to the court for their execution”.



Khabure interprets this as a positive sign that the ICC is not passively watching the development of the talks, but “making considerations and thinking heavily” about the peace process.



At the moment. it will be difficult for Uganda to provide details of any implications since the Juba agreement has not been signed by either party, although the date has been set for March 28 – also the day by which Uganda is supposed to respond to the ICC.



This creates something of a stalemate, since the LRA says it will not sign the peace agreement unless the ICC lifts the indictments, yet Uganda cannot ask the court to do that unless the agreement is signed.



Matsanga argues that there is no question the ICC should drop the cases. “The people of Uganda have rejected the ICC completely, saying the rule of law and judiciary in Uganda can handle the LRA. The ICC can only go in when the state has failed, but Uganda has got an intact machinery,” he said.



He was referring to a recent tour of Uganda by an LRA delegation designed to gather opinions about the prospects for reconciliation with the rebels. During these consultations, many people publicly claimed to have forgiven the LRA and to prefer local justice mechanisms. Yet in private, people told IWPR that they feared LRA retribution if they said otherwise, but that they really wanted the rebels to be punished.



Over the past 20 years, the LRA’s war with the government has displaced nearly two million people and an estimated 100,000 have died of war and war-related causes. Perhaps 50,000 have been abducted, most of them children.



REBELS COMPLAIN ICC PROCESS IS ONE-SIDED



Matsanga accused the court’s chief prosecutor, Luis Moreno-Ocampo, of conducting a biased investigation into war crimes in Uganda, saying that the country’s national army itself committed atrocities in the mid-1980s, spurring the LRA rebellion.



ICC prosecutors told IWPR that “we have gathered and are analysing information relating to crimes allegedly committed by individuals and groups other than the LRA, including government forces. This analysis is following standard procedures including an evaluation of the seriousness of the information, a gravity analysis and an analysis of national proceedings”.



This is not enough for Matsanga.



“The [Ugandan military] has taken part in murder, massacres, genocide,” he said. “We find Ocampo’s position very compromising. The Uganda case is going to bring a lot of chaos for him, because now he cannot arrest the culprits. He cannot bring a trial. Now the government of Uganda has abandoned him and signed an agreement with us not to hand over Kony. We have a case.”



Those monitoring the negotiations, however, say the LRA’s attempt to get the ICC to climb down is premature.



Geraldine Mattioli of the New York-based watchdog Human Rights Watch said, “It is too early for the LRA… to make a judgement about the inadmissibility of the case. It is up to ICC judges to make the final decision in terms of whether the case is admissible any more.”



QUESTIONS OVER LOCAL COURTS’ CAPACITY TO TRY WAR CRIMES



Central to the LRA’s argument, she said, is the question of whether LRA commanders will receive adequate trials in the special division which, under the agreement, is to be set up at Uganda’s High Court.



“Is the Ugandan government really committed to organising this kind of national trial?” asked Mattioli. “More importantly, is Kony committed to submitting himself to national trials? And does the Ugandan judiciary have the capacity at the moment to organise these kinds of trials?”



The LRA’s demands are based on an unsigned agreement, she noted, adding that “at the moment, all we have is a piece of paper”.



Little has been done by either side to make the agreement legitimate, she said.



“I don’t believe the Uganda government has started implementing any of the agreements or that Kony has surrendered himself to the Ugandans, or that a lot of important steps that need to made before an admissibility challenge can be made, have been made,” she said.



Komakech Henry Kilama, a Gulu-based lawyer who has been trained at the ICC, said the arrest warrants are not redundant because even if the Juba agreement is signed, there is no provision to enforce it under Ugandan laws.



“There should be laws passed by parliament to make sure all these agreements have the force of law behind them, but there needs to be legislation as the agreements themselves are not binding. Laws have not been amended to be able to look at grave crimes against humanity and war crimes, so how will the judiciary hear these cases?” asked Kilama.



Only a handful of Ugandan judges have the training and experience needed to handle war crimes cases. One of them is Judge Julia Sebutinde, currently working for the Special Court for Sierra Leone on the Hague-based trial of former Liberian president Charles Taylor.



As Kilama pointed out, “We have very few people, so we need positive training for [Ugandan] judges to look at specific war crimes and crimes against humanity.”



UNCERTAIN WHETHER THE LRA REALLY SEEKS PEACE



Mattioli said serious questions also remain as to the rebels’ true intentions, because “there are serious reports of the LRA having moved into the CAR [Central African Republic], and attacks having been conducted on the borders of Sudan and [Democratic Republic of] Congo.”



“Negotiators in Juba may be signing papers, but in terms of LRA commitment to the peace process, I think we are seeing something different,” said Mattioli.



ICC prosecutors told IWPR that they too are “increasingly concerned” about reports of recent attacks.



“The LRA group moving to CAR includes many of the remaining women and children still held in LRA captivity. The movement coincided with a resurgence of alleged LRA attacks in Southern Sudan, the DRC and CAR, with numerous killings, incidents of looting, and abductions occurring along the route the LRA is taking,” said a prosecution representative. “The extended duration of these reported abductions raises the concern that the LRA may be attempting to recruit new fighters.”



As in the past, Matsanga insisted that the LRA was not responsible for the attacks.



“These are not correct,” he said of the charges. “Sudan is a big country with lawless groups and many attack in the name of the LRA. One of the characteristics of the LRA is that they do not drink or smoke, but the groups attacking at the moment are drinking and smoking and looting alcohol. This is not the LRA.”



SUSPENSION OF WARRANTS AS A HALF-WAY HOUSE



Matsanga said the LRA might pursue another option - asking the United Nations Security Council to direct the ICC to suspend the indictments for up to one year.



The possibility that the indictments could be reactivated might pressure both parties, he said, “in case there is any bad behaviour like re-arming”.



Mattioli said it was still too early to be seeking a Security Council directive of this kind.



“The implementation agreement says that the final agreement will be signed on March 28, and after that the two parties have one month for the LRA to completely assemble under the control of the [South Sudanese military].”



Once that happens, it would be appropriate for Uganda to appeal to the Security Council for a suspension of ICC warrants, she said.



At the same time, Human Rights Watch has reservations about creating a situation where the Security Council intervenes in the ICC’s legal processes, even if it technically has the right to do so.



“We have serious concerns about allowing a political institution like the UNSC to interfere with judicial proceedings at the court. There are a number of important things the UNSC should think about – and I am talking about the kind of precedent this could set for other situations,” said Mattioli, suggesting that indicted individuals in Sudan, for example, might seek to pressure the UN body into halting ICC investigations there.



ICC COULD ASSIST NATIONAL JUDICIARY



Instead of national and international justice being framed as polar opposites and mutually exclusive, some argue that the ICC could get behind the special division at Uganda’s High Court and provide expertise and training to its lawyers and judges.



While this would require a clearer indication of the court’s mandate and methods, Khabure says “the ICC can contribute to and assist the establishment of this court, providing expertise on how to carry out investigations”.



Kilama countered by pointing out that the ICC was not a legal reform institution. Before it went down the path of referring the situation in northern Uganda to the ICC, the government could have reformed its own justice system and trained its judges to deal with such matters, he said.



Mochochoko, however, suggested some collaboration might be possible, saying the international court can cooperate with states on investigations and prosecutions, and its statute allows ICC prosecutors to hand over information in their possession if a national court launches proceedings in a similar case.



“There is room for cooperation between the court and states that are instituting investigations and prosecutions of crimes that fall within the jurisdiction of the court,” he said.



Katy Glassborow is an IWPR reporter in The Hague. Peter Eichstaedt is IWPR’s Africa Editor.



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