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FINDING

KONY
The Effectiveness of International Criminal Law1 in Providing Accountability
Mechanisms for International Humanitarian Law2 Violations when International
Demands for Justice and Local Demands of Peace (Allegedly) Collide
By: Catherine S. Panaguiton

“We need to abandon the idea that the International Criminal Court3
in Uganda exemplifies a general incompatibility of peace and justice
and to conceive of the controversy in terms of a tension between
different actors with different agendas and priorities. Ultimately, the
goal is the same: to end the terrible war and to allow hundreds of
thousands of Northern Ugandans to live a life in dignity and
prosperity.”4

Introduction


The ICC’s prosecuting attorney 5 ’s refusal to lift indictments and the

United States’6 increase in forces to hunt down and capture Joseph Kony from

Uganda, ICC’s Most Wanted Criminal7 to ultimately mete out punishment under

international criminal and humanitarian laws came amidst Uganda’s President

Museveni and local authorities’ acrimonious protests to the contrary. The latter

instead clamored to resort to non-prosecutorial modes of providing

accountability, such as the Acholi’s “mato oput” and peace negotiations8. The

main issue in the study of ICL’s effectiveness in providing accountability for

violations of IHL in the Ugandian context is summarised in Museveni’s own



1Hereinafter, “ICL”.
2 Hereinafter, “IHL”.
3 Hereinafter, “ICC.”
4David Lantz, ‘The UCC’s Intervention in Northern Uganda: Beyond Simplicity of Peace vs. Justice’

(2007)<http://reliefweb.int/sites/reliefweb.int/files/resources/EC66215A0071F156C1257391
0051D06D-Full_Report.pdf>.
5 Frank Nyakairu & Agencies, ‘Uganda: ICC Lawyer Refuses to Meet Kony’s Men’ (2008)

<http://allafrica.com/stories/200803041173.html>.
6 Hereinafter, “US”.
7 Gary Chen, ‘US and International Community’: Stop Joseph Kony Once and For All’ (2012)

<http://www.change.org/petitions/us-and-international-community-stop-joseph-kony-once-
and-for-all>.
8 Oroma Gladys, ‘Could Uganda Prosecute Joseph Kony?’ (2014) <http://iwpr.net/report-

news/could-uganda-prosecute-joseph-kony>.
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accusatory words, whether “sovereignty was being undermined” by the ICC’s

work in Africa.9

The Joseph Kony/Lord’s Resistance Army 10 -Uganda government-ICC

debacle perfectly encapsulates recent debates on the matter of the existence of a

dichotomy between International Demands for Justice and Local Demands for

Peace in certain areas of conflict 11. It likewise begs the following questions: (1)Is

there really such a dichotomy? Or is it just the matter of collision of different

groups having divergent value interpretations of accountability, that which is

related to their own political intentions? (2) How does ICL handle the said

tensions or divergences in the Kony case? Does the way ICL is crafted tend to

foster/enable accountability of those accused of war crimes? Or does it contain

loopholes that impede accountability and allow impunity to foster? Finally, (3)

How are the applicable ICL provisions practically enforced in the Joseph Kony

case and what does it say about accountability mechanisms under prevailing

international law, in general?

This paper intends to venture to answer the foregoing queries in its

objective to provide a review of the effectiveness of ICL in providing

Accountability Mechanisms for Violations under IHL. Be it noted that the

foregoing discussion is only limited to the issues that arise in Joseph Kony’s case

and his co-accused before the ICC and nothing more.

Part I. Case Study: Joseph Kony and the Ugandian tragedy


9 Ibid.
10 ,Hereinafter, “LRA”.
11 Nora Boustany, ‘Uganda Rebel Reaches Out to International Court’ (2008)

<http://www.washingtonpost.com/wp-
dyn/content/article/2008/03/18/AR2008031803054.html>.
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The LRA and Joseph Kony

From the year 1987, the LRA, composed of the marginalised Acholi tribe

of North Uganda, became notorious for its heinous acts against the civilian

population in Uganda.12 During dreadful raids on Acholi villages, the LRA would

kill, rape, and mutilate civilians, loot property, and, most infamously, kidnap

children. UNICEF estimated that in two decades of war, some 20,000 children

have been abducted by the LRA; girls are kept as sex slaves and wives for LRA

combatants, while boys, and some girls, are brutally indoctrinated and

transformed into child soldiers. Joseph Kony is the founder and spiritual leader

of the LRA.13

In December 2003, Museveni then asked the ICC to investigate and

prosecute the LRA14. This he did due to the continued violence inflicted by the

LRA, international pressure and more importantly, political reasons- it was

theorised that such move helped legitimise Museveni’s government, as well as its

commitment to a military solution against Kony and the LRA. It painted

Museveni the leader of a good government fighting against a satanic rebel group

and its psychotic leader. Uganda reaped the rewards of military aid and

international legitimacy.15

The Office of the Prosecutor16 thereafter investigated all crimes within


12 Linda Keller, ‘Achieving Peace with Justice: The International Criminal Court and Ugandan

Alternative Justice Mechanisms’ citing Tim Allen, Trial Justice: The International Criminal Court
And the Lord’s Resistance Army (Zed Books, 2006),60-71.
13 Ibid, 42.
14 Ibid, 82.
15 Mark Kersten, ‘Plus CA Change: Museveni and the ICC’ (2013)
<http://justiceinconflict.org/2013/06/12/plus-ca-change-museveni-and-the-icc/>.
16 Hereinafter, “OTP”.

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Northern Uganda.17 Later, the OTP determined that there was sufficient evidence

to open a formal investigation in July 2004.18 As such, it sought and was granted

arrest warrants against five top commanders of the LRA, including Kony.19 The

warrants, which were unsealed in October, 2005, charged several counts of war

crimes and crimes against humanity.20 Specifically, Kony was charged with 12

counts of crimes against humanity and 21 counts of war crimes21. At this time,

Museveni seemed to be in full support of the ICC prosecution.

Later on, Museveni seemed to do an “about face”. Uganda eventually

agreed with the LRA to ask the ICC to withdraw the warrants, if the LRA agreed

to alternative justice measures22 and completed the peace process after peace

negotiations resumed in earnest in 200623. This, Uganda did apparently to show

the strength and self-reliance of its government to provide accountability in the

domestic sphere. The LRA, despite its initial reluctance24, apparently agreed on


17 Keller above n 12, citing OTP 3-Year Report.
18 Press Release, ICC, ‘Prosecutor of the International Criminal Court Opens an Investigation into

Northern Uganda’ (July 29, 2004) http://www.icc-cpi.int/press/pressreleases/33.html.


19 See generally ICC No 02/04-01/05, Warrant of Arrest (Aug. 7, 2005),

<http://www.icc-cpi.int/cases/UGD/c0105/c0105_docAll1.html [hereinafter Arrest Warrants]


(including the arrest warrants for Kony, Otti, Odhiambo, Lukwiya and Ongwen). See also Decision
to Terminate the Proceedings Against Raska Lukwiya, Prosecutor v. Kony et al. (July 11, 2007),
<http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-248_English.pdf> (discussing that the
ICC terminated proceedings against Lukwiya after confirming his death); Submission of
Information Regarding Vincent Otti, Prosecutor v. Kony et al. (Nov. 8, 2007) (noting OTP’s
continuing investigation into media reports that Otti was killed on Kony’s orders).
20 Keller above n 12, 183-84.
21 Specifically, the crimes charged are: murder - article 8(2)(c)(i); cruel treatment of civilians –

article 8(2)(c)(i); intentionally directing an attack against a civilian population – article


8(2)(e)(i); pillaging - article 8(2) (e)(v); inducing rape – article 8(2)(e)(vi); forced enlistment of
children - 8(2)(e)(vii)). See International Criminal Court Website, ‘The Prosecutor vs. Joseph
Kony’ <http://www.icc-
cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200204/relate
d%20cases/icc%200204%200105/Pages/uganda.aspx>.
22 Hereinafter, “AJMs”.
23 See, e.g., Kimberly Hanlon, ‘Comment, Peace or Justice: Now that Peace is Being Negotiated in

Uganda, Will the ICC Still Pursue Justice?’ (2007) 14 TULSA J. COMP. & INT'L L. 295, 296.
24 Keller above n 12, citing Int’l Crisis Group, ‘Northern Uganda: Seizing the Opportunity for Peace

5’, AFRICA REPORT NO. 124, April 26, 2007,


<http://www.crisisgroup.org/library/documents/africa/central_africa/>
124_northern_uganda_seizing_the_opportunity_for_peace.pdf [hereinafter Seizing Opportunity].
4
June 29, 2007.25

The product of above talks between the Uganda government and the LRA

was the June 2007 Agreement on Accountability and Reconciliation26 . What is

significant to take note about this Agreement is that it provides that ‘alternative

mechanisms including traditional justice ceremonies, such as “mato oput” by the

Acholi, a tribe that has protested the ICC warrants; other tribe-based

mechanisms include the “Langi Kayo Chuk system” and the “Iteso one Aliuc”

shall be promoted, with necessary modifications, as a central part of the

framework for accountability and reconciliation’. It also refers to a body,

apparently a truth and reconciliation commission, to examine the need for

accountability on both sides of the conflict.27

On the face of it, the agreement requires formal criminal or civil justice

proceedings against LRA leaders 28 , which seems to indicate that the

accountability mechanism to be employed would be domestic criminal

prosecution. However, a reading of the same shows that the Ugandan

government has, at the same time indicated, that traditional justice like “mato

oput” would suffice. 29 Herein, there were uncertainties as to whether

prosecutorial or non-prosecutorial modes of accountability would be applied by

Uganda.


25 Ibid, citing Agreement on Accountability and Reconciliation between the Government of the

Republic of Uganda and the Lord’s Resistance Army/Movement, June 29, 2007 (Juba, Sudan),
available at http://www.amicc.org/docs/Agreement_on_Accountability_and_Reconciliation.pdf
[hereinafter Agreement on Accountability & Reconciliation].
26 Ibid.
27 Ibid, citing Henry Mukasa, LRA, Gov’t Agree on Criminals, THE NEW VISION (Uganda), June 13,

2007, available at
http://www.newvision.co.ug/D/8/13/570389?highlight&q=LRA,%20Government%20Agree%2
0on%20 Criminals; Hanlon, supra note 45, at 330.
28 Ibid citing Agreement on Accountability & Reconciliation, supra note 57, at para. 4.1.
29 Ibid.

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Doubts on the above were vanished and it became crystal clear that “the

LRA suspects will not be tried before the new special division of the High Court

at all, but instead will submit to a traditional alternative procedure”30 when the

Agreement’s annexure 31 came out and Kony 32 and Museveni 33 made their

statements affirming the same.

Thus, in June 2007, the Ugandan government indicated that it will

“engage” the ICC after the conclusion of a comprehensive peace agreement.34 But

the ICC has apparently already refused to suspend the arrest warrants and has

all intentions to do so until Kony is caught35. Specifically, in a June 2007 address,

the current prosecutor, Luis Moreno-Ocampo, implied that the ICC would not

give in to what he calls, LRA blackmail and extortion.36 He stated that arrest

warrants “must be implemented.”37 He noted that “other national mechanisms

can be useful for the other combatants.”38 Thus, while the OTP would defer to


30 Ibid citing Amnesty International, Uganda: Agreement and Annex on Accountability and
Reconciliation Falls Short of a Comprehensive Plan to End Impunity 11, AFR 59/001/2008 (Mar.
2008), available at
<http://www.reliefweb.int/rw/RWFiles2008.nsf/FilesByRWDocUnidFilename/LRON-7CTEZN-
full_report.pdf/$File/full_report.pdf>.
31 Ibid.
32 Ibid, citing Columbus Onoo, ‘Refugees Grow Impatient’ (2008).
33 Ibid.
34 Keller citing Uganda: Government to Seek Review of ICC Indictments Against LRA Leaders,

IRIN, June 21, 2007, <http://www.irinnews.org/Report.aspx?ReportId=72861>.


102. La Cour pénale internationale ne retirera pas le mandat d'arrêt contre le chef de la LRA [The
International Penal Court Will Not Withdraw the Warrant for Arrest Against the Chief of the
LRA], Jeune Afrique, June 15, 2007 (Fr.),
<http://www.jeuneafrique.com/pays/ouganda/article_depeche.asp?art_cle=XIN70027lacouarlal
e0>.
35 Ibid.
36 Ibid.
37 Ibid.
38 Ibid.

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Ugandan preferences for lesser perpetrators, it is unlikely that the OTP will drop

the warrants against Kony and other leaders on its own initiative.” 39

The climax of the above events came in 2008. Therein, Kony altogether

suddenly quit talks with Kampala and vanished to renew his war claiming it was

because the ICC in The Hague had failed to heed to his condition of dropping war

crimes and crimes against humanity against him. 40 Until now, he remains at

large and purported to be hiding in the vast jungles of Central Africa even after

the very popular Kony 2012 campaign launched by Invisible Children calling for

worldwide awareness and support for his capture41 and the US increasing42 its

troops in Uganda to hunt him down.

Part II. Probing the ICL in the Uganda Case

Accountability in General: Definition, Values and Goals

Accountability mechanisms refer to the processes, norms, and structures

that hold the population and public officials legally responsible for their actions

and that impose sanctions if they violate the law.43 Accountability is important

to, inter alia, prevent future violations of international humanitarian and human

39 Ibid.
40 Ibid citing <http://www.independent.co.ug/news/news-analysis/8494-kony-

surrender#sthash.QuhatI36.dpuf>.
41 Haggai Matsiko, ‘Kony Surrender’ (2013)
<http://nymag.com/daily/intelligencer/2012/04/what-happened-to-the-kony-2012-
campaign.html>.
42Helene Cooper, ‘ More U.S. Troops To aid Uganda Search for Kony’ (2014)

<http://www.nytimes.com/2014/03/24/world/africa/obama-is-sending-more-resources-for-
joseph-kony-search.html?_r=0>.
43 United States Institute of Peace Website, ‘Accountability to the Law’ (2011)

<http://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/7-
rule-law/accountability-the-la>, citing United Kingdom Department for International
Development, Briefing, “Justice and Accountability”.
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rights law.44

To fully understand and discuss the effectiveness of accountability

mechanisms, one must examine first, why aggrieved individuals seek

accountability and what they want out of the process. This is because states

differ from one another in terms of the metrics they use to know whether

accountability mechanisms are effective. 45

It is not only between differing states whereby metrics of effectiveness of

accountability mechanisms vary. Among different groups involved in a conflict

within one state, such is also the case. Specifically, in the case of Uganda: three

interest groups, namely the Uganda government and the ICC, have varying

takes on the accountability mechanisms that would be effective. This author,

following the framework provided by Stromseth46, postulates that this probably

has to do with the different goals that they set in seeking particular modes of

accountability mechanisms.

The ICC is apparently predicated on retribution, deterrence, expressivism,

and restorative justice. 47 The professed values of the Acholi that elevate

forgiveness and reconciliation over the punishment of retributive justice,48 on

the other hand, is claimed by the Uganda government as basis of wanting the ICC

proceedings suspended and the resort to traditional AJMs. In the opinion of the


44 M. Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian Law and

Other Serious Violations of Human Rights’ (2009), <http://www.sos-


attentats.org/publications/bassiouni.violations.pdf>., citing the classic and profoundly insightful
characterization of George Orwell, "Who controls the past, controls the future. Who controls the
present, controls the past." Thus, to record the truth, educate the public, preserve the memory,
and try the accused, it is possible to prevent abuses in the future.
45 Ibid.
46 Ibid.
47 Ibid, 265.
48 Ibid.

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International Crisis Group49 however, Uganda’s decision to engage in peace talks

(as a mode of accountability mechanism) was motivated by the recognition that

regional partners and the UN could not be relied upon to defeat the LRA

militarily; and by a desire “to polish an image increasingly tarnished by

allegations of corruption, electoral malpractice and inability to end the

humanitarian crisis in the north.”50

A. ICL Accountability Mechanisms to Hold Individuals responsible for


violations of IHL: Highlighting the Complementarity Principle vis-à-
vis the Prosecutor’s Proprio Motu Powers Under the Rome Statute
and Inadmissibility requirements, et al.

The most serious crimes of concern to the international community that

are within the jurisdiction of the ICC are defined in Article 5 of the Rome

Statute, which grants the Court jurisdiction over international disputes,

including crimes of genocide, crimes against humanity, war crimes, and the

crime of aggression. 51 Kony’s acts squarely fall under those crimes. However, for

the ICL to fully apply in his case, a showing of such is not enough. There are still

several preconditions that must be satisfied before the ICC obtains jurisdiction

over this case.

The first hurdle that must be overcome for jurisdiction is ratification of

the Rome Statute. 52 Once a state ratifies the Rome Statute, it grants the ICC


49 Hereinafter, “ICG”.
50 ICG, “Peace in Northern Uganda?” Africa Briefing No. 41, 13 September 2006, 11.
51 Ashley Joy Stein ‘Reforming the Sentencing Regime For the Most Serious Crime of Concern: The

International Criminal Court Through the Lens of the Lubanga Trial 2014 by the Brooklyn
Journal of International Law’ citing Structure of the Court, INT'L CRIMINAL COURT <http://
www.icccpi.int/en_menus/icc/structure%20of%C20the%20court/Pages/structure%20of%C20t
he%c̈ ourt.aspx>.
52 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187

UNTS 90 (entered into force 1 July 2002), Article 12.


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jurisdiction over citizens of that state that ratified the Rome statute53. Uganda

ratified the Rome Statute in June 2002, which means that the ICC has jurisdiction

for the three crimes specified in the Rome Statute – genocide (Art. 6), crimes

against humanity (Art. 7), and war crimes (Art. 8) – committed by Ugandan

nationals or on the territory of Uganda after July 1st 2002.54

The second hurdle that must be overcome for the ICC to exercise

jurisdiction is the precondition of “complementarity.”55 This is the heart of the

discussion of accountability of ICL for the Kony case.

The Complementarity Principle

The principle of complementarity is set out in the Rome Statute’s

Preamble, Articles 1, 15,17, 18 and 19. 56 It is there to uphold the overall

principle of international law of sovereignty of states. It requires that states

“utilize the Court only as a last resort, after first attempting to litigate ICC Article

5 crimes domestically in their local courts.” 57 The way the statute is crafted is

that the ICC’s institutional mandate is to prosecute or to facilitate prosecution at

the national level first.58 It is only after the state is “unwilling or unable” to

charge the individuals who violated Article 5 in their own domestic courts that


53 See id. Barry E. Carter & Allen S. Weiner, International Law 1141, 1145 (6th ed. 2011).
54 See above n 3.
55 Ashley Joy Stein, ‘Reforming the Sentencing Regime For the Most Serious Crimes of Concern:

The International Criminal Court Through the Lens of the Lubanga Trial 2014’, Brooklyn Journal
of International Law 2014.
56 Antonio Cassese, et al. The Rome Statute of the International Criminal Court: A Commentary,

Volume I. (Oxford University Press, 2002).


57 Ibid.
58 John T. Holmes ‘Complementarity: National Courts versus ICC’ in The Rome Statute of the

International Criminal Court: A Commentary, Volume I. (Oxford University Press, 2002), 679.
10
the ICC may exercise jurisdiction over the case59 and the state party may refer a

situation to the ICC Prosecutor60 for further investigation.

Uganda claims that this principle was not applied in the Uganda case and

thus, there is a derogation of their sovereignty proscribed by international law.

The veracity of accusation will be discussed below.

Be it noted first that complementarity issues can arise in different ways at

different phases in ICC proceedings61, i.e. during the investigation stage or even

when arrest warrants have already been issued.

In the Uganda case, it is clear that the complementarity principle was

applied during the stage prior to the commencement of investigation by the OTP

so therefore, there is no issue on this. It was Uganda itself that referred the

situation to the ICC.62 Thus, the OTP was acting consistently with the Rome

statute, particularly, the complementarity principle, when it undertook an

investigation and on the basis of evidence at hand, applied for arrest warrants

that that were later on granted by the ICC. By way of its referral to the ICC,

Uganda unequivocally consented to the court’s jurisdiction due to its own

cognizance of its unwillingness or inability to undertake prosecution. Thus, in

this case, it is clear as day that their allegation that sovereignty has been

impaired in this stage does not hold water.


59Ibid.
60 Rome Statute, supra note 51, art. 14.
61 International Criminal Court. ‘The Principle of Complementarity in Practice’, Informal Expert

Paper (2003) < http://www.icc-cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-


907F631453ED/281984/complementarity.pdf>.
62 See ICC, Facts and Procedure Regarding the Situation in Uganda, Basic

Information No. ICC20051410.056.1-E, 1 (Oct. 14, 2005)<http://www.icc-


cpi.int/library/cases/ICC_20051410-056-1_English.pdf>.
11
Answering the question of whether the said principle has been applied is

more difficult however during the stage when investigation by the OTP has

already ceased and arrest warrants have already been made. At this point,

Uganda did an about-face and clamored that Kony and his co-conspirators’

prosecution be handled domestically. The OTP outright refused said request.

This is the stage where complementarity issues arise. First, is there a violation of

the application of the complementarity principle in this case? Second, on the

matter of deferrals as requested by Uanda, what is the general rule and exception

during the stage wherein the Prosecutor has already determined that there

would be a reasonable basis to commence an investigation63 and the ICC has

already issued warrants of arrest as it found that there are reasonable grounds

to believe that the person has committed a crime within the jurisdiction of the

Court? Is it the general rule that: deferrals upon the request of States are

honored, subject only to the exception when the most dubious circumstances

permit it? Or is it the other way around, when the general rule is that ICC

proceedings must continue to proceed once initiated and exceptions for deferrals

are made only upon extraordinary circumstances? Construing the

complementarity principle strictly, the former rule should ideally apply.

However, the way it appears in the Uganda case, the latter seems to hold true.

Deferrals to local authorities in favor of non-prosecutorial modes (AJMs) to


promote accountability

It is not clear how the Ugandan government will attempt to remove the

ICC warrants, as there is no provision stating in clear and unequivocal terms the

63 Rome Statute, supra note 51, Article 18 (1).

12
enabling withdrawal of a state referral 64, particularly in favor of local authorities

handling the case and resorting to non-prosecutorial methods (AJMs) of

accountability, as it appears in this case65. Keller postulates though that the

Rome statute, interpreted broadly, could allow the same. She continues that the

possibilities under the Rome Statute that justify the resort to AJMs applying the

complementarity principle are the following: (1) Security Council66 deferral

(Article 16)67, requiring the ICC to suspend the Ugandan prosecution as a threat

to international peace; (2) ne bis in idem (Article 20), treating the Ugandan AJM

as prior prosecution blocking subsequent ICC proceedings; (3) prosecutorial

discretion (Article 53), allowing the Prosecutor to decline to prosecute in the

interests of justice; and (4) inadmissibility (Article 17), interpreting the

principle of complementarity such that the Uganda AJM render the case

inadmissible. 68 (In the Uganda case though, only (3) and (4) are more

applicable69, and will be discussed in more breadth in subsequent sections).

However, she constructs a framework based on a broad interpretation of

the Rome statute, whereby deferrals in favor of nonprosecutorial methods

(AJMs) are allowed, subject to the limitation there is an unequivocal showing

that doing so will achieve similar aims of the ICC and ICL.70 Specifically, she

recommends that the relevant ICC and/or OTP, in evaluating the above


64 Keller citing Cf. Adel Maged, ‘Withdrawal of Referrals - A Serious Challenge to the Function of

the ICC’, 6 INT'L CRIM L. REV. 419, 422 (2006).


65 Please note though that the meaning of ‘deferrals for local justice’ herein is limited to local non-

prosecutorial AJMs and NOT prosecution by domestic courts. This is because a study of events
that transpired shows that the Ugandian government in calling for a deferral, does not intend
that the case will be handled by domestic courts and processes but to resort to Alternative Justice
Mechanisms.
66 Hereinafter, “SC”.
67 Ibid.
68 See Keller above n 12.
69 Ibid.
70See Keller above n 12, 260.

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provisions and deciding whether deferral is proper, should not only consider

statutory interpretation, but also assess the AJM considered to be applied by the

national authorities. First, the Court should evaluate whether resort to

nonprosecutorial AJM are necessary and legitimate. If so, it should examine

whether the alternative advances the goals of international criminal justice.

Where the AJM further retribution, deterrence, expressivism, and

restorative justice to a similar extent as international prosecution, the ICC

and/or the OTP should defer as has been suggested above regarding

Uganda. The underlying principle of this framework is that the ICC should not

defer solely on the ground that deferral would further peace. Although this is a

crucial consideration, the ICC was created with a core prosecutorial mandate

aimed at ending impunity. This framework is permissible under the Rome

Statute for as long as the ICC and/or the OTP decides to apply said framework in

invoking their powers under Article 17 and Article 53, respectively. 71

Now, the above framework proffered by Keller reveals an interesting

inconsistency within the said law in terms of the complementarity principle. In

applying Keller’s framework, the Rome Statute seems to permit a derogation or

eschewing of the complementarity principle by way of a stricter threshold

against national authorities from having jurisdiction over the case when it offers

AJMs. The Principle of Sovereignty of states is upheld by the Statute and yet there

are provisions that likewise justify it being withheld in the same statute.

This author deems that this is justified considering the real goals set by

Uganda in its pursuit of deferral- which is not really because they are willing and


71 Ibid.

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able to pursue local means of justice, but because this is more a function of

politicking, when they clearly do not have the justification and the means in

providing accountability. They did not meet the requirements of “unwillingness

and ability” under Article 17 of the Rome Statute and doing so would not be “in

the interests of justice” as required under Article 53 (2). There is still a

problematique, however noble the means are.

Keller states that the flexibility built into the Statute and the Rules is good

because its broad statements make amendments to the Statute unnecessary72.

This author believes that it is reasonable to infer that there, Keller means that it

is good that the Statute is drafted in a broad manner that can accommodate the

needs of every situation.

To this, this author does not wholly agree. Be it noted that the Rome

Statute gives wide latitude discretion to the ICC73 to determine whether deferral

to AJMs would promote or defeat accountability mechanisms in the ICL and

international law in general. Therefore, pains must taken that the ICC is objective

in interpreting the above rules in a particular situation, else, its credibility in the

international arena may be questioned and this could lead to dire circumstances.

The OTP, for instance, has gotten much critique due to its vast powers

under Article 53(2) of the Rome Statute, wherein on the basis of several

grounds, it can unilaterally conclude whether there is or there is no sufficient

basis for prosecution. This power the OTP specifically exercised in the Uganda


72 See above n 57, 667-686.
73 It is important to remember that it is the Court itself which will determine its ability to address

these questions (WON State is not genuine in its investigatory or prosecutor efforts i.e. that it is
actively blocking the pursuit of justice), in an efficient and fair manner, and ultimately therefore,
whether the Court is a success or not.
15
case, wherein Luis Moreno-Ocampo perenially refused to move for a deferral74.

He deemed that deferral would not serve the "the interests of justice."75 . He has

characterized the LRA demands as blackmail and extortion. Maybe doubts on

biases on the part of the OTP and/or ICC may be lessened if the Statute is clearer,

that there are specific grounds for deferral (i.e. in this case, that the AJMs

presented do not meet the standards of the ICC and the actual list standards, by

which Keller’s framework may be looked into). Or in the case of the OTP above,

the establishment by the OTP of guidelines as to how the phrase “interests of

justice” should be construed 76 may be beneficial. In having more specific

provisions and guidelines, the ICC and the OTP’s objectivity and integrity in

applying the law may be preserved and they could continue to perform their

mandates with the full support of the states. In addition, it will be beneficial so

that said provisions may also not be open to abuse.

The Non-retroactivity Principle of the Rome Statute

Articles 11, 24 and 26 of the Rome Statute echo the basic principle of

non-retroactivity of criminal law in affirming that it cannot exercise retroactive

jurisdiction77. Thus, although the conflict began as early as 1987, the ICC only has

jurisdiction over crimes committed since its inception in 2002. Further, it was

only in 2005, that the government of Ugandan president Yoweri Museveni

referred the 20-year conflict with the LRA to prosecutors in The Hague, thus, it

74 Keller citing Nora Boustany, Ugandan rebel reaches out to International Court, WASH. POST,

(Mar. 19,
2008) <http://www.washingtonpost.com/wp-
dyn/content/article/2008/03/18/AR2008031803054.html>.
75 Rome Statute, supra note 51, Article 18 (1) and Article 53 (2).
76 Human Rights Watch Policy Paper, ‘The Meaning of “Interests of Justice” in Article 53 of the

Rome Statute’ (2005) <http://www.hrw.org/news/2005/06/01/meaning-interests-justice-


article-53-rome-statute>.
77 See above n 57, 572.

16
was only in this year that Kony was charged with 33 counts of war crimes and

crimes against humanity committed in northern Uganda between 2002 and

2005. Kony at the present has become less accountable than he should really be

based on these two (2) counts: One, he has committed violations of law for as

early as 1987, and because the ICC was not established then, he cannot be held

liable for all his mass killings and perpetuation of rapes from the period of 1987-

2002, when the ICC was finally established and the Rome Statute came into force.

Kony therefore has impunity for the crimes committed on this duration in the

ICC.

Second, he started committing his crimes from as early as 1987, but

warrants of arrest were only made eight (8) years after and up to now, he has

continued to evade authorities. This is due to the alleged local demands for AJMs

that were argued to be justifiable reasons to suspend the proceedings in the ICC

under the Rome Statute. The invocation of the strict complementarity criteria in

the ICL has significantly lengthened proceedings and delayed punishment, which

already lessens accountability. The famed legal maxim states that “justice

delayed is justice denied”78. Thus, prosecutors oftentimes ensure that criminal

proceedings are swift, charges are made before the years pass and all the

evidence are lost and witnesses elemental to the prosecution of the case start

disappearing. In this case, what seemed to be a statute to uphold the basic

principle of sovereignty of states was being used as a tool to delay

administration of justice and impede accountability.



78 Suzy Platt (ed.). Entry 954. William Ewart Gladstone (1809–98). Respectfully Quoted: A

Dictionary of Quotations Requested from the Congressional Research Service. Library of Congress,
1989. (Attributed to WILLIAM E. GLADSTONE. — Laurence J. Peter, Peter’s Quotations, p. 276
(1977). Unverified.)
17

There must then be sufficient dialogue with the national authorities in

order that crimes committed from 1987- 2002 can be prosecuted under

Uganda’s national laws and individuals responsible will still be held

accountable 79 . However, since Uganda seems to have already ruled out

prosecutorial modes of accountability, this does not seem possible.

Penalties mandated by/permitted to be imposed by the Rome Statute

Nonprosecutorial models of accountability offered by Uganda President

such as the “mato oput”-that prescribe reparations to the families of victims as a

penalty; and truth commissions, with public shaming as a penalty, do not meet

the test of proportionality considering the gravity of crimes committed by Kony.

What is more, the potential punishment under the ICC (a maximum term of

thirty years, with life imprisonment for extremely grave and depraved crimes) is

often perceived as insufficient as well. Arguably, no term of incarceration could

be proportional to an international crime like genocide. Since neither AJM nor

the ICC mete out proportional punishment80, the subject of penalties is likewise a

problem area in effectively providing accountability under the ICL.

B. Accountability of States to uphold ICL under the Rome Statute

Now, if Uganda is found based on Keller’s framework that it is using AJMs

as a ploy to impede accountability for political reasons, can sanctions be imposed


79 Ibid.
80 Ibid.

18
against it for such measures? Or in the case whereby the ICC proceedings

proceed and Kony was thereafter adjudged liable to account for his crimes i.e.

fines and forfeitures, what are the responsibility of states in relation to the ICC?

Beyond the general framework of substantive ICL (established through

treaties, customary international law and judicial practice) are also important

obligations upon States. For ICL to be put into practice, States must fulfill these

obligations. They include obligations to investigate, prosecute and punish

international crime and generally to cooperate with the ICC to promote

accountability.

Responsibility of States in ensuring domestic judicial processes are carried out:


Obligation of States to investigate, prosecute and punish international crime

In the domestic sphere, States must investigate international crime, and if

there is sufficient evidence, to prosecute the alleged perpetrators. Those

convicted must be punished according to international law. In short, there is not

simply a legal obligation of individuals to refrain from committing international

crimes, there are obligations to investigate, prosecute and punish such crime.

The responsibility to investigate is codified in several treaties including

the Geneva Conventions, and recognized as binding obligation under customary

law. Soft law instruments including the Basic Principles and Guidelines on the

Right to a Remedy and Reparations for Victims of Gross Violations of

International Human Rights Law and Serious Violations of International

Humanitarian Law (Van Boven Principles) offer a useful restatement of the

law. These principles highlight the duty to, inter alia: “investigate violations

19
effectively, promptly, thoroughly and impartially and where appropriate, take

action against those allegedly responsible in accordance with domestic and

international law.” 81

Nothing in the Rome Statute though obliges States to strengthen their

capacity to prosecute genocide, crimes against humanity or war crimes and on

its face, this gives the impression that the law is weak in terms of enforcing

accountability of States. However, in practice, the rule is generally followed.

States that do not strengthen their national criminal legislation may run a risk of

being held “unwilling or unable” to genuinely carry out proceedings. Most States

will want to be certain that they can meet the complementarity test and retain

the choice of prosecuting persons domestically, particularly where the person is

a national or where the crime was committed on the territory of the State.82

Responsibility of States in the international arena: The Duty to Cooperate


In the international sphere and its relationship with the ICC, the states

have a different obligation-which is to cooperate in the implementation of ICL.

This obligation as laid down in Part 9 of the Statute, however, is generally to be

discharged upon the request by the Court. This is unequivocally implied by

Article 87, the first sentence of which reads as follows: ‘The Court shall have the

authority to make requests to State parties for cooperation.’ Please note that


81 Diakonia, ‘International Crimes and Accountability’ (2013)

<https://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/acountability-
report-2.pdf>.
82 Darryl Robinson, ‘The Rome Statute and Its Impact On National Law’ in The Rome Statute of

the International Criminal Court: A Commentary, Volume II. (Oxford University Press, 20012),
1860.
20
Part 9 of the Statute, is couched in terms of ‘requests’ sent by the Court to State

parties to enlist their cooperation [Article 87 1 (a)], rather than using

“mandatory language” such as ‘orders of the Court’. This is largely due to the

nature of the ICC as not being over and above states akin to domestic courts.83

Thus, enforcement of international law and judgment of the ICC then is

decentralised – there is no central authority for enforcement, in the same way

that domestic legal systems have police forces, courts, and governments. The ICC

website clearly states “the Court does not have its own police force. Accordingly,

it relies on State cooperation, which is essential to the arrest and surrender of

suspects.” Thus, the matter of implementation and enforcement of ICL and IHL to

promote accountability, which rests on the responsibility of States, becomes

problematic84. With a few exceptions, implementation and enforcement of IHL is

often voluntary, and there are no compulsory means for the settlement of

disputes or for ensuring enforcement of IHL.

Because of this structure, state participation and cooperation is crucial to

the court’s efficiency and effectiveness. It is individual states’ military and police

forces that actually do the grunt work and arrest those with outstanding

warrants, many of whom have been in hiding for years.

In the Ugandian case though, thanks to a very successful Kony 2012

campaign which highlights the importance of the media in holding individuals

accountable, such is not that problematic, albeit the delay. The US, who has no


83 Ibid.
84Ibid.

21
direct relation to the conflict this year has further mobilised its troops to find

and capture the world’s most wanted man largely due to the above campaign.

However, the question is can this political will be translated in each and

every criminal, even those coming from richer countries such as the US?85

Because if it is not, then the strength of the Rome Statute will be put to naught

when it cannot even be enforced in practice uniformly in the first place. The

same vigilance and commitment not only by the US but all states in enforcing

provisions of ICL for violations of IHL for ALL accused, regardless of which state

they come from, must be present to ensure the effectiveness of ICL.


Further, the duty to cooperate encompasses many different areas.

States Parties are under an obligation to cooperate with respect to requests by

the Court for ‘arrest and surrender’ and ‘other forms of assistance’ under Part 9

(Articles 89-92 and 101-102; and Articles 93-96 and 99, respectively).

Moreover, they have to give ‘international cooperation’ with respect to the

Court’s proceedings for ‘offenses against its administration of justice” (Article

70) and ‘enforcement of fines or forfeiture measures” ordered by the Court

(Article 109).

While request for arrest and surrender and other forms of cooperation

are to be complied with in accordance with the modalities detailed throughout

Part 9, pursuant to Article (70) 2, the conditions for providing international

cooperation to the Court with respect to its proceedings over offences against its


85US up to the present has not ratified the Rome Statute, though it has signed the same. See Maria

Smith, ‘The Rome Statute: A Missed Opportunity’<http://hir.harvard.edu/the-rome-statute-a-


missed-opportunity>.
22
administration of justice “shall be governed by the domestic laws of the

requested State”. Similarly, under Article 109 of the Statute, States parties shall

give effect to “fines and forfeiture measures ordered by the Court “in accordance

with the procedure of their national law”. Therefore, while States Parties are

indeed under an obligation to comply with all the above-mentioned requests,

they are free to determine the way in which they give effect to the Court’s

orders,under both Article 70 (2) and Article 109 of the Statute.86

The Rome Statute recognises that penalties applied to a particular crime

need not be the same as those in the Rome Statute. Ideally, implementing States

should ensure that penalties are commensurate with the seriousness of the

crimes. Penalties of course may be firmer than those in the Rome Statute, but

States considering such an approach should bear in mind relevant constitutional

principles and human rights laws, such as the prohibition of cruel, inhuman or

degrading punishment.87

However, the way the provision is crafted does not make the above

precepts mandatory. Thus, a state party who, in compliance with its domestic

law, may set the fines or forfeitures that are lower than that should the ICC set it

in accordance to the prescribed in the ICC’s Rules of Evidence and Procedure.88

And this would not be an outright violation of the Statute for as long as they are

done “in accordance with the procedure of their national law”. This could

likewise be problematic in making violators fully accountable. Thus, even if the



86 Annalisa Ciampi, ‘The Obligation to Cooperate’, 1613 in The Rome Statute of the International

Criminal Court: A Commentary, Volume I. (Oxford University Press, 2002), 679


87 International Covenant on Civil and Political Rights, Dec 16, 1966, 999 UNTS 171, Art. 7.
88 ICC Website, ‘Rules of Procedure and Evidence of the International Criminal Court’

<http://www.icc-
cpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20journal/Documents/RPE.4th.
ENG.08Feb1200.pdf>
23
ICC ultimately render judgment in the Kony case, Uganda’s domestic laws may be

applied with respect to the penalties. Given that Uganda only want to undergo

AJMs, it is a huge possibility that a lower punishment than the ICL maximum

penalty will be meted out in the Uganda case, which significantly lowers

accountability.

Part III. Strengths and Weaknesses of Accountability Mechanisms under


the ICL: A Review

For Accountability to be in full, there must be a riddance of the thinking

that there is a dichotomy between International Demands for Justice and Local

Demands for Peace, meaning the call for international and criminal prosecution

and resort to local AJMs for Peace, respectively. All of these mechanisms used

together as applicable, can increase the chances of bringing Accountability, as

opposed to using just one over the other.

Further, political decisions such as that of Ugandian President Museveni’s,

must not be automatically interpreted as “the local demand for peace”. Before

doing so, the question is asked, is this really the people’s will? Please note that in

a democracy, the President acts in behalf of the people, to perform what he

deems to be the people’s will. In the Uganda case, there is convincing evidence

that shows that on the contrary, people want prosecution89 and NOT resort to


89 A study of Northern Ugandans revealed that the majority wished that the government pursue

prosecutorial mechanisms of accountability and not AJMs. Specifically, (76%) indicated that
perpetrators of abuses should be held accountable, with non-Acholi districts holding this belief
more prevalently.When asked about accountability, the most common response (66%) was
punishment, i.e., trial and imprisonment/execution. See Keller above n 12, citing Phuong Pham
et al., ‘Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in
Northern Uganda’ 34 (Int’l Center for Transitional Justice & Human Rights Ctr., July 2005),
<http://www.ictj.org/images/content/1/2/127.pdf>.

24
AJMs. For them, this will bring peace. In the Uganda case therefore, it is a terrible

mistake to conclude that there is a clash between the ICC and local take on the

matter. On the other hand, ICC and the Uganda people both want Kony to be

accountable for his actions and not resort to AJMs, that appear to just be a mere

slap in the wrist. It is only the local bureaucrats of Uganda who thought

differently just so the legitimacy of their rule is not put into question. Heck, even

the punishment under the ICL is not enough to make him pay for his atrocities,

and the bureaucrats at Uganda want him to get an even lower punishment. This

must be taken into account by the ICC.

Further, although this paper stands that generally, the Rome Statute

provides effective accountability mechanisms and that there is moral and legal

propriety in the application of the rules by the ICC and the US in their recent

aggressive posture towards Kony’s international prosecution, it opines that the

ICL is still far from perfect. Key provisions in the Rome Statute, such as that

pertaining to the Rome Statute, are crafted in general terms and provide the ICC

with tremendous discretionary powers. Thus, the ICC has a profound

responsibility in treading the balance between domestic and international law’s

different treatments on accountability. Perhaps, guidelines in the interpretation

of provisions acting as limits to the ICC’s discretionary powers are in order.

Further, provisions on non-retroactivity and penalties under the Rome Statute


25
are insufficient to provide accountability of crimes, as seen in the case of Uganda.

Domestic cooperation is entailed and further studies on the matter should be

undertaken to address these issues.

ICL does not only demand compliance of obligations by individuals but

also states to guarantee these individuals’ accountability under IHL. This is

because it is only through the compliance of states of their obligations that

individuals are held liable under the law. It becomes then a matter of political

will, that which is very much present in Uganda’s case (albeit with much delay).

But this is worrying as there is no assurance that such will will be translated in

all cases of violations of IHL between differing states. The challenge is that this

political will be uniformly applied to all states and citizens, without any

discrimination.

Providing accountability of violators requires the full cooperation of both

International and domestic authorities. Efforts must be made towards this so

that ultimately, criminals are caught, incarcerated and they are rendered

incapable of committing crimes. This way, the road towards healing and

eventually, peace becomes all the more clearer.

26

Part IV. Bibliography

A. Articles/Books/Reports

Antonio Cassese, et al. The Rome Statute of the International Criminal Court: A
Commentary, Volume I. (Oxford University Press, 2002)

Barry E. Carter & Allen S. Weiner, International Law 1141, 1145 (6th ed. 2011)

B. Treaties

Rome Statute of the International Criminal Court, opened for signature 17 July
1998, 2187 UNTS 90 (entered into force 1 July 2002)



C. Websites

Dictionary.com website ( 19 April 2014) Definition of idealist
<dictionary.reference.com/browse/idealist >

Darryl Robinson, ‘The Rome Statute and Its Impact On National Law’ in The
Rome Statute of the International Criminal Court: A Commentary, Volume II.
(Oxford University Press, 20012)

David Lantz, ‘The UCC’s Intervention in Northern Uganda: Beyond Simplicity of
Peace vs. Justice’
(2007)<http://reliefweb.int/sites/reliefweb.int/files/resources/EC66215A0071
F156C12573910051D06D-Full_Report.pdf>

Diakonia, ‘International Crimes and Accountability’ (2013)
<https://www.diakonia.se/globalassets/documents/ihl/ihl-resources-
center/acountability-report-2.pdf>

Frank Nyakairu & Agencies, ‘Uganda: ICC Lawyer Refuses to Meet Kony’s Men’
(2008) <http://allafrica.com/stories/200803041173.html>

Gary Chen, ‘US and International Community’: Stop Joseph Kony Once and For
All’ (2012) <http://www.change.org/petitions/us-and-international-
community-stop-joseph-kony-once-and-for-all>

Haggai Matsiko, ‘Kony Surrender’ (2013)
<http://nymag.com/daily/intelligencer/2012/04/what-happened-to-the-kony-
2012-campaign.html>

Helene Cooper, ‘ More U.S. Troops To aid Uganda Search for Kony’ (2014)
<http://www.nytimes.com/2014/03/24/world/africa/obama-is-sending-more-

27
resources-for-joseph-kony-search.html?_r=0>

Human Rights Watch Policy Paper, ‘The Meaning of “Interests of Justice” in
Article 53 of the Rome Statute’ (2005)
<http://www.hrw.org/news/2005/06/01/meaning-interests-justice-article-53-
rome-statute>

International Criminal Court. ‘The Principle of Complementarity in Practice’,
Informal Expert Paper (2003) <http://www.icc-
cpi.int/NR/rdonlyres/20BB4494-70F9-4698-8E30-
907F631453ED/281984/complementarity.pdf>

ICC, Facts and Procedure Regarding the Situation in Uganda, Basic
Information No. ICC20051410.056.1-E, 1 (Oct. 14, 2005)<http://www.icc-
cpi.int/library/cases/ICC_20051410-056-1_English.pdf>

Legal Answers Website, ‘Implementation and Enforcement of IHL’
<http://www.legalanswers.sl.nsw.gov.au/guides/hot_topics/intnl_humanitarian
_law/enforcement_ihl.html>

Linda Keller, ‘Achieving Peace with Justice: The International Criminal Court and
Ugandan Alternative Justice Mechanisms’ citing Tim Allen, Trial Justice: The
International Criminal Court And the Lord’s Resistance Army (Zed Books, 2006)

Maria Smith, ‘The Rome Statute: A Missed
Opportunity’<http://hir.harvard.edu/the-rome-statute-a-missed-opportunity>

Mark Kersten, ‘Plus CA Change: Museveni and the ICC’ (2013)
<http://justiceinconflict.org/2013/06/12/plus-ca-change-museveni-and-the-
icc/>

M. Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian
Law and Other Serious Violations of Human Rights’ (2009), <http://www.sos-
attentats.org/publications/bassiouni.violations.pdf>

Nora Boustany, ‘Uganda Rebel Reaches Out to International Court’ (2008)
<http://www.washingtonpost.com/wp-
dyn/content/article/2008/03/18/AR2008031803054.html>

Oroma Gladys, ‘Could Uganda Prosecute Joseph Kony?’ (2014)
<http://iwpr.net/report-news/could-uganda-prosecute-joseph-kony>.
Structure of the Court, INT'L CRIMINAL COURT <http://
www.icccpi.int/en_menus/icc/structure%20of%C20the%20court/Pages/struct
ure%20of%C20the%c̈ ourt.aspx>

Phuong Pham et al., ‘Forgotten Voices: A Population-Based Survey on Attitudes
about Peace and Justice in Northern Uganda’ 34 (Int’l Center for Transitional
Justice & Human Rights Ctr., July 2005),
<http://www.ictj.org/images/content/1/2/127.pdf>
28
United States Institute of Peace Website, ‘Accountability to the Law’ (2011)
<http://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-
web-version/7-rule-law/accountability-the-la>, citing United Kingdom
Department for International Development, Briefing, “Justice and Accountability”




29