War Crimes, Crimes Against Humanity—International Criminal Court (ICC) Issues First Arrest Warrants: Uganda

In a recent address to the U.N. General Assembly in New York last week, International Criminal Court (ICC) President Philippe Kirsch discussed last July’s first-ever report of the ICC to its parent organization, the United Nations (U.N.).^[1] In it, he noted that the issuance of the Court’s first arrest warrants signals the end of its organizational startup phase and the beginning of its judicial phase of its operations. The warrants were issued for five high-ranking members of the Ugandan Lord’s Resistance Army (LRA) who are accused of crimes against humanity and war crimes. Additionally, President Kirsch announced that in the intervening three months since the ICC report was submitted, Mexico had deposited its instrument of ratification with the Court Secretary-General, thereby becoming the 100th State to become a Party to the Rome Statute.^[2]

Now that the ICC has issued its first arrest warrants, the first trials could begin as early as next year. Article 13 of the Rome Statute establishes jurisdiction of the ICC over individuals accused of these crimes in one of three ways: By the referral of State Party, referral of the UN Security Council, or referral of the ICC Office of the Prosecutor itself.^[3] In this instance, the matter was brought to the attention of the Prosecutor’s office by way of a Letter of Referral from the Government of Uganda.^[4] Uganda became a State Party to the ICC in June 2003.^[5] This year, it becomes the first State Party to refer an action to the ICC.^[6]

If the manner in which this case is unfolding before the eyes of the world is typical, the Pre-Trial phase in which referral, investigation, indictment, and arrest take place, is likely to take approximately two years; there is nothing to indicate that in this case the Court has been slowed down by budgetary, staffing, or legislative concerns. In his October 14 statement, the Chief Prosecutor, Luis Moreno-Ocampo, stated that his office received Uganda’s Letter of Referral in December 2003 and opened its investigation on July 28, 2004.^[7] By May 6, 2005, the Prosecutor applied for the arrest warrants, and on July 8, 2005 sealed warrants were issued by the Pre-Trial Chamber. Subsequently, after all security measures were in place concerning alleged victims, potential witnesses, and the multinational investigative team, the Pre-Trial Chamber unsealed the warrants on October 13, thus making the alleged acts and the names of the accused (Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen) open to the public.^[8] These LRA leaders are now considered fugitives; however, Dominic Ongwen is rumored to have been killed during a raid in September of this year.^[9]

What happens next depends on when and how the five Ugandan leaders find themselves in front of the ICC in The Hague. If they choose to surrender, they may make a voluntary appearance before the Pre-Trial Chamber to respond to the charges. The more likely scenario is that they will be the target of a worldwide search, with or without cooperation of their national governments. Without a police force of its own, the ICC must rely on the assistance of national law enforcement and governments of the Party States, as well as “the support of the international community.”^[10] There has already been protest against the arrest warrants in Uganda, including members of the same Acholi tribe alleged to have been victimized by the LRA over the past two decades. Their objection is that an international legal process will impede a more peaceful solution—one based on the Acholi cultural tradition of forgiveness and reintegration of victims and aggressors alike.^[11] Experience gained through proceedings at the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) indicates that, in spite of express cooperation by state governments—and even in cases where the individuals being sought no longer held positions of political power—there have been successful attempts to thwart the reach of international adjudication.^[12] This will be the first opportunity to see how well the Court’s enforcement regimen works at the pre-trial phase.

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[1] Text of Mr. Kirsch’s address is available from the ICC website (http://www.icc-cpi.int/) in English and French. The full ICC report to the UN is available in both English and French. As specified in the 20 August 2004 Relationship Agreement between the ICC and the UN, the Court may submit reports on its activities to the UN. The relationship between the UN and the ICC dates back to the 17 July 1998 "United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court," when UN member states formally adopted the Rome Statute (documented in the Resolution A/RES/53/105, 26 January 1999).
[2] See the ICC press release here. Under Article 125(2) of the Rome Statute, ratification occurs when a signatory state deposits an instrument of ratification with the UN Secretary-General.
[3] Rome Statute of the International Criminal Court (1998), Article 13. Available in English here.
[4] This procedural background is documented in the Statement of the Chief Prosecutor on the Uganda Arrest Warrants, October 4, 2005 and is authorized in the Rome Statute, Art. 13.
[5] The ICC provides a browseable listing of all State Parties here, with dates of signing and ratification. As of 14 November 2005, 100 countries are States Parties to the Rome Statute of the International Criminal Court. The procedure for ratification is authorized in the Rome Statute, Art. 125.
[6] See the Statement of the Chief Prosecutor on the Uganda Arrest Warrants
[7]Id.
[8]Id.
[9] Most news sources have reported the rumored death of Ongwen, although none at this date have confirmed. Representative articles include The Washington Times, Nov. 10, 2005 and International Herald Tribune, October 14, 2005.
[10] See Statement of the Chief Prosecutor, page 7.
[11] For coverage of the Acholi response, see AllAfrica.com Press Release, October 17, 2005 (subscription required).
[12] In spite of increased levels of official commitment by states, ICTY Prosecutor Carla Del Ponte had this to say about pre-trial cooperative enforcement as it related to the ongoing fugitive status of Radovan Karadzic, Ratko Mladic, and Ante Gotovina, among others: “The reasons why these two fugitives are still at large after ten years are not too mysterious. In the first years after Dayton, there was no political will to bring them to The Hague. Over the last few years, the political pressure of the international community has increased. As a result, Belgrade, Podgorica and Banja Luka have seemingly stepped up their efforts. I have no evidence however that, now, the political will is truly there. As long as there will be only nice words but no concrete results, doubts will remain.” In 1993, the ICTY issued a gag order for Slobodan Milosevic after he was discovered to be participating in parliamentary elections in Serbia while on trial and in detention in The Hague.