Kony’s best option is to sign the final peace agreement
Mar 25, 2009
The recent announcement about the withdrawal of the UPDF from its operations against the LRA in the DRCongo is likely to turn international attention from the military activities of the 20-year rebellion in northern Uganda to the role of the International
By Peter Mulira
The recent announcement about the withdrawal of the UPDF from its operations against the LRA in the DRCongo is likely to turn international attention from the military activities of the 20-year rebellion in northern Uganda to the role of the International Criminal Court (ICC) in bringing to book perpetrators of crimes against humanity the world over.
The ICC is the first permanent international criminal court set up to end impunity for the perpetrators of heinous crimes of international concern. The court was preceded in the 1990s by the International Criminal Tribunals for the former Yugoslavia and Rwanda which were based on the consensus that impunity in crimes against humanity was unacceptable.
However, these tribunals were limited to specific conflicts until a milestone was reached on July 17, 1998 when 120 countries adopted the Rome Statute, the basis of the ICC. The jurisdiction of the court which became operational on July 1, 0002 after 60 countries had signed the statute is limited to cases of genocide, crimes against humanity and war crimes.
The court may only exercise its jurisdiction in three instances, namely if the accused is a national of the state party, the crime took place on the territory of the state party or if the United Nations Security Council has referred the situation to the court prosecutor irrespective of nationality.
There are further limitations to the court’s jurisdiction in that it can only deal with events taking place after July 1, 2002 and on the principle of complementality certain cases will be inadmissible where a state with jurisdiction is also investigating the same case situation.
Where the court is seized with jurisdiction, the prosecutor immediately institutes his investigations and passes on his findings to the president of the court who assigns the case to a pre-trial chamber for the purpose of deciding whether indictments should be issued against the accused persons. Uganda was the first country to refer a case to the ICC when it made a referral in 2005 over the atrocities committed by Kony and his commanders.
However, the prosecutor’s investigations moved slowly as they were hindered by debates over whether methods of traditional justice rather than retributive international trials would be more appropriate in dealing with Kony’s crimes. Eventually, on May 6, 2005 the court heard the prosecutor’s application for warrants of arrest to be issued against Kony and four of his commanders and after deliberations indictments were issued against Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen on 33 counts.
But since the indictments were signed, events that have intervened have made the arrest of the accused almost impossible to accomplish. For example, on February 19, 2006 the Uganda government started peace talks in Juba with Kony’s representatives under the chairmanship of the vice-president of South Sudan which produced agreement on five key issues opening the way to the signing of a final peace agreement in Juba by Kony to be followed by President Museveni four days later. As a sign of good faith, the arrests could not be effected while the peace talks lasted.
However, Kony failed to sign the final agreement and absconded to the Garamba forest in the DRC from where he indicated that he would not sign until the warrants of arrest had been withdrawn. But withdrawal of such warrants once issued is not an easy matter since only the court has the power to do so after it has satisfied itself that the accused will be effectively prosecuted for their crimes elsewhere.
This in effect means the court will want to ascertain that there is sufficient willingness and mechanism in the state with jurisdiction to try the accused according to internationally accepted principles and that the attempt to sidestep it is not intended to shield the culprits from justice.
Since the Uganda government has set up a War Crimes Tribunal Court within its judiciary and our administration of criminal justice is well-regarded in Africa it may not be difficult to make out a case at the ICC that Kony can be tried locally. But the process of achieving this is as cumbersome as it is elusive.
The statute allows the accused persons or the state which would have jurisdiction over them to challenge the admissibility of the case before the court and argue that genuine attempts to investigate and prosecute the case is underway in the country concerned but this has never been tried before. A former prosecutor with the Yugoslavia Tribunal may have been speaking the minds of the judges when he opined that if Uganda had its way on such an application it would undermine the work of the court. This leaves open two alternative procedures open to Kony if he is to escape the clutches of the ICC. The first one is to seek amnesty but even if this were to be granted by Uganda, it may not stop the international community from prosecuting him.
The ICC was set up on the principle that no one who has committed heinous crimes of concern to the international community should go unpunished and a distinction has been made between a revolutionary intent to overthrowing a government and a criminal who makes profits from such acts as human trafficking or commits acts of genocide.
To escape international prosecution, Kony would have to bring himself within the category of a revolutionary only intent to overthrow the government which will be a tall order for him.
The issue of amnesty is further complicated by past experiences. In Argentina, members of the junta which ordered the disappearance of over 300,000 people received amnesty under laws which were passed in 1986 and 1987 but later these laws were repealed and the culprits punished.
This means that for any system of forgiveness to work, the victims of the atrocities must be brought on board and be satisfied that justice has been rendered. In this way, there have been suggestions that for real peace in northern Uganda to prevail, resort should be had to traditional judicial systems which emphasise apologies and compensation. Indeed a survey in the north found that there is a preponderance of opinion that Kony should be granted amnesty in exchange for peace but this survey was carried out before Kony moved to the Sudan and eventually to the DRC which rendered him less of a threat to the citizens of the area. What all this means is that there are many players in the peace process whose interests have to be taken into account in resolving the northern conflict.
Meanwhile, the ICC prosecutor’s office has clarified that the warrants of arrest will remain in force until declared inadmissible.
Considering all options open to him, Kony’s best bet may well be to sign the final peace agreement if anyone is still interested and persuade the government to pursue an application in the court for the case to be inadmissible.
The recent announcement about the withdrawal of the UPDF from its operations against the LRA in the DRCongo is likely to turn international attention from the military activities of the 20-year rebellion in northern Uganda to the role of the International Criminal Court (ICC) in bringing to book perpetrators of crimes against humanity the world over.
The ICC is the first permanent international criminal court set up to end impunity for the perpetrators of heinous crimes of international concern. The court was preceded in the 1990s by the International Criminal Tribunals for the former Yugoslavia and Rwanda which were based on the consensus that impunity in crimes against humanity was unacceptable.
However, these tribunals were limited to specific conflicts until a milestone was reached on July 17, 1998 when 120 countries adopted the Rome Statute, the basis of the ICC. The jurisdiction of the court which became operational on July 1, 0002 after 60 countries had signed the statute is limited to cases of genocide, crimes against humanity and war crimes.
The court may only exercise its jurisdiction in three instances, namely if the accused is a national of the state party, the crime took place on the territory of the state party or if the United Nations Security Council has referred the situation to the court prosecutor irrespective of nationality.
There are further limitations to the court’s jurisdiction in that it can only deal with events taking place after July 1, 2002 and on the principle of complementality certain cases will be inadmissible where a state with jurisdiction is also investigating the same case situation.
Where the court is seized with jurisdiction, the prosecutor immediately institutes his investigations and passes on his findings to the president of the court who assigns the case to a pre-trial chamber for the purpose of deciding whether indictments should be issued against the accused persons. Uganda was the first country to refer a case to the ICC when it made a referral in 2005 over the atrocities committed by Kony and his commanders.
However, the prosecutor’s investigations moved slowly as they were hindered by debates over whether methods of traditional justice rather than retributive international trials would be more appropriate in dealing with Kony’s crimes. Eventually, on May 6, 2005 the court heard the prosecutor’s application for warrants of arrest to be issued against Kony and four of his commanders and after deliberations indictments were issued against Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen on 33 counts.
But since the indictments were signed, events that have intervened have made the arrest of the accused almost impossible to accomplish. For example, on February 19, 2006 the Uganda government started peace talks in Juba with Kony’s representatives under the chairmanship of the vice-president of South Sudan which produced agreement on five key issues opening the way to the signing of a final peace agreement in Juba by Kony to be followed by President Museveni four days later. As a sign of good faith, the arrests could not be effected while the peace talks lasted.
However, Kony failed to sign the final agreement and absconded to the Garamba forest in the DRC from where he indicated that he would not sign until the warrants of arrest had been withdrawn. But withdrawal of such warrants once issued is not an easy matter since only the court has the power to do so after it has satisfied itself that the accused will be effectively prosecuted for their crimes elsewhere.
This in effect means the court will want to ascertain that there is sufficient willingness and mechanism in the state with jurisdiction to try the accused according to internationally accepted principles and that the attempt to sidestep it is not intended to shield the culprits from justice.
Since the Uganda government has set up a War Crimes Tribunal Court within its judiciary and our administration of criminal justice is well-regarded in Africa it may not be difficult to make out a case at the ICC that Kony can be tried locally. But the process of achieving this is as cumbersome as it is elusive.
The statute allows the accused persons or the state which would have jurisdiction over them to challenge the admissibility of the case before the court and argue that genuine attempts to investigate and prosecute the case is underway in the country concerned but this has never been tried before. A former prosecutor with the Yugoslavia Tribunal may have been speaking the minds of the judges when he opined that if Uganda had its way on such an application it would undermine the work of the court. This leaves open two alternative procedures open to Kony if he is to escape the clutches of the ICC. The first one is to seek amnesty but even if this were to be granted by Uganda, it may not stop the international community from prosecuting him.
The ICC was set up on the principle that no one who has committed heinous crimes of concern to the international community should go unpunished and a distinction has been made between a revolutionary intent to overthrowing a government and a criminal who makes profits from such acts as human trafficking or commits acts of genocide.
To escape international prosecution, Kony would have to bring himself within the category of a revolutionary only intent to overthrow the government which will be a tall order for him.
The issue of amnesty is further complicated by past experiences. In Argentina, members of the junta which ordered the disappearance of over 300,000 people received amnesty under laws which were passed in 1986 and 1987 but later these laws were repealed and the culprits punished.
This means that for any system of forgiveness to work, the victims of the atrocities must be brought on board and be satisfied that justice has been rendered. In this way, there have been suggestions that for real peace in northern Uganda to prevail, resort should be had to traditional judicial systems which emphasise apologies and compensation. Indeed a survey in the north found that there is a preponderance of opinion that Kony should be granted amnesty in exchange for peace but this survey was carried out before Kony moved to the Sudan and eventually to the DRC which rendered him less of a threat to the citizens of the area. What all this means is that there are many players in the peace process whose interests have to be taken into account in resolving the northern conflict.
Meanwhile, the ICC prosecutor’s office has clarified that the warrants of arrest will remain in force until declared inadmissible.
Considering all options open to him, Kony’s best bet may well be to sign the final peace agreement if anyone is still interested and persuade the government to pursue an application in the court for the case to be inadmissible.