K.U. Leuven Faculty of Law

Institute for International Law Working Paper No 81 – July 2005

JUSTICE FOR AFRICA: THE CASES OF THE DEMOCRATIC REPUBLIC OF THE CONGO, UGANDA AND DARFUR BEFORE THE INTERNATIONAL CRIMINAL COURT JAN WOUTERS AND STEN VERHOEVEN

The Institute for International Law of the K.U.Leuven groups the teaching and research in public international law and the law of international organisations at the Faculty of Law of the University of Leuven. The Institute also organises colloquia, seminars, workshops and lectures which bring current issues of international law to the fore. The working paper series, started in 2001, aims at a broader dissemination of the results of the Institute’s research in the academic community and in society. It contains both contributions in Dutch and in English. Reference may be made to these working papers with proper citation of source. For more information and a complete list of available working papers, please visit the website of the Institute for International Law on www.internationallaw.be  Institute for International Law, K.U. Leuven, 2001

Institute for International Law K.U.Leuven Tiensestraat 41, B-3000 Leuven Tel. +32 16 32 51 22 Fax +32 16 32 54 64 Prof. Dr. Jan Wouters, Director

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JUSTICE FOR AFRICA: THE CASES OF THE DEMOCRATIC REPUBLIC OF THE CONGO, UGANDA AND DARFUR BEFORE THE INTERNATIONAL CRIMINAL COURT JAN WOUTERS♦ AND STEN VERHOEVEN♦♦

1. INTRODUCTION The International Criminal Court is the world’s first treaty-based international criminal tribunal, whose Statute was established by 120 States at Rome on 17 July 1998. This Rome Statute entered into force on 1 July 2002, entailing that from this date, the Court would be able to prosecute crimes in the purview of its jurisdiction, namely genocide, crimes against humanity and war crimes.1 In as early as July 2003 the Office of the Prosecutor was analyzing and investigating its first possible case, the situation in the Democratic Republic of Congo, and more in particular the violence in the Ituri region. Shortly thereafter, in December 2003, Uganda referred a case to the International Criminal Court relating to the conduct of the Lord’s Resistance Army, an infamous rebel group operating in the north of Uganda. In January 2005, the Prosecutor received a referral of the Central African Republic to start its analysis on the situation of crimes within the jurisdiction of the Court committed anywhere on the territory of the Central African Republic since 1 July 2002. Very recently the situation in Darfur in Sudan was referred by the Security Council to the International Criminal Court on 31 March 2005.2 It can be expected that these first cases will be of the utmost importance of the future of the International Criminal Court. First of all, the law of the Rome Statute will become the law in action and the ongoing procedures will be closely scrutinized by State parties and non-parties alike. Secondly, the first cases will test the true capabilities of the International Criminal Court and the impact of its decisions on countries in a state of conflict, emerging from conflict, or in the process of post-conflict peace-building. If the Court passes the test, it can be expected that the momentum of the Court will be enhanced resulting in positive effects for the fight against impunity around the globe, but especially in Africa, which is sadly the region the most prone to violent conflicts. In this respect, it might not be surprising that the first cases are originating from the African continent.3 This paper will analyse the three aforementioned cases: the situation in the Democratic Republic of Congo and in Uganda, and, to a more limited extent, the situation in Darfur. In the first part, the facts of the cases, the proceedings and the possible crimes will be examined. In the second part, starting from these cases the authors will draw general observations on the actual working of the Court. ♦

Professor of International Law and the Law of International Organizations, Leuven University; Of Counsel, Linklaters De Bandt, Brussels. ♦♦ Assistant, Institute for International Law, Leuven University. 1 Although Article 5 ICC Statute also includes the crime of aggression, it does not fall within the jurisdiction of the Court because of lack of definition. It is to be expected that the crime will be defined at the first Review Conference by the Assembly of State Parties in 2009. 2 UN Security Council Resolution 1593 (2005). 3 Although arguably, other States in Latin America, in particular Columbia with the FARC, and Peru with the Sendero Luminoso, could refer a situation to the Office of the Prosecutor.

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2. THE THREE CASES DISSECTED 2.1. The Democratic Republic of Congo A. Factual Situation4 The first case on the desk of the Prosecutor concerned crimes committed throughout the Democratic Republic of Congo, but with special attention for the situation in the Ituri region. Therefore, this contribution will focus on the situation of this particular region. Despite three peace agreements purportedly ending the five-year Congolese war, fighting in the north–east of the Democratic Republic of Congo intensified in late 2002 and early 2003. In early May 2003, hundreds of civilians were killed in the town of Bunia, and tens of thousands were forced to flee. While the international community focused on the town of Bunia, massacres continued in other parts of Ituri away from media attention. The war in Ituri was a complex network of local, national, and regional conflicts that developed after a local dispute between Hema and Lendu was exacerbated by Ugandan actors and aggravated by the broader international war in the Democratic Republic of Congo. National rebel groups such as the Congolese Liberation Movement (Mouvement pour la Libération du Congo, MLC), the Congolese Rally for Democracy-Liberation Movement (Rassemblement Congolais pour la Démocratie-Mouvement de Libération, RCD-ML) and the Congolese Rally for Democracy-Goma (Rassemblement Congolais pour la DémocratieGoma, RCD-Goma) have supported local militia in their conflicts as a way to expand their own power base in the Democratic Republic of Congo’s transitional government. These national groups, as well as local ethnic groups in Ituri, have been supported by the Ugandan, Rwandan and Democratic Republic of Congo governments. Until 2003, the conflict in Ituri had been largely ignored by the international community. Despite some information to the contrary, the international community viewed the conflict of Ituri as merely a tribal war, which had no relation to the broader war in the Democratic Republic of Congo. Between 1999 and April 2003 the UN Organization Mission in the Democratic Republic of Congo (MONUC) had only a small team of fewer than ten observers covering this volatile area of some 4.2 million people. MONUC forces were urgently increased to several hundreds in April 2003, but they had no capability to protect the thousands of civilians who had fled to them for protection when fighting again broke out between militia groups in early May. The UN Security Council authorized an Interim Emergency Multinational Force, Artemis Operation, with a Chapter VII mandate to protect civilians and UN staff in the town of Bunia until 1 September 2003 while MONUC reinforced its presence.5 After the end of the Artemis Operation, the Ituri Brigade, a subdivision of MONUC, took over in Bunia, with the mission of securing Bunia as a weapon-free zone and of deploying in various locations in Ituri. Furthermore, the MONUC mandate is now extended to use force to protect the civilian population and humanitarian aid workers.6 During 2004, the region slowly stabilized with sporadic clashes between the Ituri Brigade and armed groups (especially the Union for Congolese Patriots). In the meantime MONUC is still trying to 4

Based on report of Human Rights Watch, available at http://hrw.org/reports/2003/ituri0703 and MONUC, available at http://www.monuc.org/home.aspx?lang=en. 5 Security Council Resolution 1484 (2003). 6 Security Council Resolution 1493 (2003).

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collect weapons from the various armed groups and to broken peace agreements between the warring factions. However, the region is still not safe in 2005, which was dramatically demonstrated by the death of nine peacekeepers at the end of February, which led to a battle between the Ituri Brigade and the militia allegedly responsible, the Lendu Nationalist and Integrationist Front, resulting in the death of fifty militiamen, and the MONUC’s ultimatum to hand over weapons in two weeks in the middle of March.7 B. Possible Jurisdiction and Admissibility of the International Criminal Court Jurisdiction In order to establish the jurisdiction of the International Criminal Court, three criteria have to be met. Firstly, only crimes that have been committed after the entry into force of the Rome Statute come within its remit, that is after the first day of the month after the 60th day following the date of the deposit of the instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.8 On 1 July 2002 the Statute entered into force. Since the Democratic Republic of Congo became a party to the Rome Statute on 11 April 2002, the Court has had temporal jurisdiction for crimes committed since 1 July 2002.9 This entails that the crimes committed between 1998 and this date fall outside the scope of the Court’s jurisdiction. However, in the case of continuing crimes, which started before but are continued after the entry into force of the Statute, prior violations could possibly be taken into account. Firstly, in a parallel with the International Criminal Tribunal for Rwanda10, previously committed crimes can be considered as background materials to establish the historical context of the conflict.11 Secondly, crimes committed prior to the entry into force of the Rome Statute can be taken into consideration to establish the mens rea of the perpetrator.12 Indeed, since all crimes listed in the Rome Statute have an aspect of policy or planning13, crimes committed before the entry into force may be related to crimes committed after the entry into force, as part of the same policy. Secondly, the crimes have to be committed on the territory of a State party or by its nationals.14 This is not problematic in the present case, since the Ituri region is part of the territory of the Democratic Republic of Congo, although it was occupied until 2003 by 7

See http://news.bbc.co.uk/1/hi/world/africa/4348579.stm. Article 11 (1) and Article 126 (1) ICC Statute. 9 A different situation arises if a State has become a party after the entry into force of the Rome Statute. Article 126 (2) ICC Statute provides that the Statute enters into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession. 10 The Statute of International Criminal Tribunal for Rwanda determined in Article 1 that the tribunal was only competent for crimes between 1 January 1994 and 31 December 1994, which is quite similar (apart from the end date) to the ICC Statute. 11 Hassan Ngeze and Ferdinand Nahimana v. the Prosecutor, Decision on the Interlocutory Appeals, Appeals Chamber, 5 September 2000, ICTR-99-52-A, available at: www.ictr.org. 12 S. BOURGON, “Jurisdiction Ratione Temporis”, in A. CASSESE, P. GAETA, J.R.W.D. JONES (eds.), The Rome Statute of the International Criminal Court, A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 551. 13 With regard to genocide, this is a crime characterized by a special intent, namely to destroy in whole or in part a national, ethnical, racial or religious group, and which in turn implies preparation and planning over time; see also Elements of Crimes, available at: http://www.un.org/law/icc/asp/1stsession/report/english/part_ii_b_e.pdf; with regard to crimes against humanity, the definition of Article 7 ICC Statute speaks of a widespread or systematic attack directed at a civilian population, which implies a course of conduct involving the multiple commission of acts against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; with regard to war crimes, Article 8 (1) ICC Statute explicitly mentions the jurisdiction of the Court when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 14 Article 12 (2) ICC Statute. 8

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Uganda15 and was at the end of 2002 and the beginning of 2003 a fierce battleground between Rwanda, Uganda and the Democratic Republic of Congo, each supporting local armed groups. As a result not only Congolese nationals, but also the nationals of Uganda and Rwanda risk being prosecuted for crimes within the jurisdiction of the International Criminal Court, although Rwanda is not a party to the Rome Statute. Thirdly, the crimes should fall within the substantive jurisdiction of the International Criminal Court.16 This is probably not problematic since the crimes committed can be qualified as genocide, crimes against humanity or war crimes. For example, Human Rights Watch estimates that at least five thousand civilians died from direct violence in Ituri between July 2002 and March 2003, often simply because of their ethnicity17, which brings the violence under the heading of the crime of genocide. Furthermore, the crimes committed can be certainly regarded as crimes against humanity, since they involved a widespread or systematic attack against a civilian population. Lastly, the crimes could be qualified as war crimes committed in an international or internal armed conflict. Indeed, although the international community mainly saw the violence in Ituri as a tribal war, and hence as an internal armed conflict, the Ituri region was also the battleground between Rwanda, Uganda and the Democratic Republic of Congo, and thus it can be held that an international armed conflict took place.18 Furthermore, it cannot be excluded that the conduct of the local armed groups is attributable to Uganda or Rwanda, which both supported various local groups, under the condition that these countries exercised effective control.19 Concluding, the crimes committed in Ituri can be qualified as genocide, crimes against humanity or war crimes in an international or internal armed conflict, and fall within the substantive jurisdiction of the International Criminal Court. Admissibility The Rome Statute did not confer priority of prosecution on the International Criminal Court. Instead, the drafters explicitly introduced the complementarity principle20: national jurisdictions have priority in prosecuting international crimes and only when States are genuinely unwilling or unable to prosecute, will cases be held admissible. In any event, it will be the International Criminal Court which has to decide if a case is admissible or not.21 In the case of the Democratic Republic of Congo, the situation will probably be held admissible since it is likely that the International Criminal Court will decide that the State concerned is unable to initiate prosecutions. Indeed, the Democratic Republic of Congo has been torn apart by a five-year war, causing the collapse of the State institutions, including the judiciary. Although the rebuilding of the State infrastructure has started, one can argue that there is still a substantial inability present, since the Democratic Republic of Congo can be held unable to conduct its proceedings, as required by Article 17 (3) ICC Statute, certainly in the Ituri region 15

The occupation of a territory does not have an effect on the sovereignty over that territory, see Article 42 and following Regulations concerning the Laws and Customs of War on Land, Annex to Convention (IV) Respecting the Laws and Customs of War on Land, which speaks of authority and not sovereignty over occupied territory. 16 Article 5 ICC Statute. 17 Supra note 4. 18 An international armed conflict is defined as every conflict between States that leads to the intervention of members of the armed forces, see J. PICTET, Les Conventions de Genève du 12 août 1949, Commentaire, Genève, CICR, 1958, III, 23. 19 Article 8 International Law Commission Draft Articles on State Responsibility for Internationally Wrongful Acts (2001); Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, I.C.J. Rep. 1986, § 109 and § 115. 20 Tenth recital of Preamble ICC Statute; Article 1 and 17 ICC Statute. 21 Article 17 (1) ICC Statute: “The Court shall determine…” (emphasis added).

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which is not yet fully under its jurisdiction. Although at a first glance, the case will be admissible, one has to take into account Article 18 ICC Statute, which determines that in case of State referral, the Prosecution has to notify all States which possibly could exercise jurisdiction and that within one month of receipt of this notification, a State can inform the International Criminal Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to crimes listed in article 5 ICC Statute and which relate to the information provided in the notification to States.22 Since the Democratic Republic of Congo referred the case in March 2004 and no State has requested a deferral, this last hurdle also has been cleared and the situation in the Democratic Republic of Congo can be held admissible. C. Proceedings After receiving alarming communications from NGOs, the Prosecutor decided in July 2003 to closely monitor the ongoing violence in the Democratic Republic of Congo and signalled that the case would be the first priority of the Office of the Prosecutor.23 Moreover, in September 2003 the Prosecutor announced to the Assembly of State Parties that if necessary he would seek authorization of a Pre-Trial Chamber to start investigations into the situation of the Democratic Republic of Congo and more particularly the Ituri region, using his own powers, but that a referral of the State concerned would be most helpful.24 The wishes of the Prosecutor were realised by a referral of the Democratic Republic of Congo in March 2004, announced publicly on 19 April 2004.25 The Prosecutor now examined if the reported situation would fall within the personal, substantive and temporal jurisdiction of the International Criminal Court and if the conditions of admissibility are fulfilled.26 Finally, some two months later, on 23 June 2004, the Prosecutor officially stated that the International Criminal Court would start its initial investigation.27 The Presidency immediately decided to constitute three Pre-Trial Chambers on 24 June 200428, followed by the decision to assign the situation of the Democratic Republic of Congo to Pre-Trial Chamber I on 5 July 200429 and the election of a President for that chamber30. The Pre-Trial Chamber suddenly became active on 17 February 2005 when it issued a decision to convene a status conference on 15 March 2005 on the situation in the Democratic Republic of Congo since it saw a need inter alia to provide for victim and witness protection and the preservation of evidence.31 It would be a closed session with only the Prosecutor or his representatives present. On 8 March 2005 the Prosecutor in his reply questioned the

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Article 18 (1) and (2) ICC Statute. See http://www.icc-cpi.int/pressrelease_details&id=19.html. 24 Ibid. 25 Ibid. 26 According to Article 53 Rome Statute, the Prosecutor is obliged to examine the jurisdiction of the International Criminal Court and the possible admissibility of the case. Moreover, the Prosecutor has to take into account the gravity of the crime, the interests of the victims and the interest of justice. 27 http://www.icc-cpi.int/pressrelease_details&id=26&l=en.html. 28 Available at: http://www.icccpi.int/library/about/officialjournal/basicdocuments/Decision_on_the_Constitution_of_PTC.pdf. 29 Avalaible at: http://www.icc-cpi.int/cases/current_situations/DRC.html. 30 http://www.icc-cpi.int/library/about/officialjournal/basicdocuments/Election_of_the_Presiding_Judge_of_PreTrial_Chamber_I.pdf.. 31 Available at: http://www.icc-cpi.int/library/organs/chambers/ICC_01-04_e.pdf 23

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compliance of the decision with the Rome Statute32 and argued that in order to make such a decision, the Pre-Trial Chamber first had to hear the submissions of the Prosecution.33 Furthermore, the Prosecutor feared that the impartiality of the Pre-Trial Chamber would be infringed, since only the Prosecution would be heard and no other involved parties.34 Lastly, according to the Prosecutor, there was no immediate situation requiring for the protection of witnesses or victims or for the preservation of evidence.35 The Pre-Trial Chamber, however, swept the submissions of the Prosecutor aside in its decision on 9 March 2005, largely on a procedural basis36, and ordered the redaction of the Prosecutor’s Position since it contained parts of confidential documents.37 Subsequently the Prosecutor filed a leave for appeal38 on 11 March 2005 against the decision of 8 March 2005, emphasizing the fundamental right to be heard, and arguing that a prior appeal against the decision of 17 February was not necessary. Furthermore the Prosecution requested to suspend the status conference pending final determination of the Appeals Chamber’s decision. Again, the Pre-Trial Chamber dismissed the arguments of the Prosecutor on 14 March 2005 on the basis that the Prosecutor failed to show the danger of an unfair trial by not directly appealing against the decision of 17 February 2005.39 These decisions were followed by a procedure regarding a unique investigation opportunity under Article 56 ICC Statute, in which the Pre-Trial Chamber followed the Prosecutor’s request and appointed an ad hoc defence council.40 Lastly, on 26 May 2005 the Pre-Trial Chamber received a request of victims to participate in the proceedings and to not disclose any information which could lead to their identification. The Pre-Trial Chamber subsequently adopted an order requesting additional information for the reasons of non-disclosure of identity from the victims wanting to participate in the proceedings.41 2.2. Uganda A. Factual Situation42 The Lord’s Resistance Army, an armed rebel group led by Joseph Kony, operates in the north of Uganda from bases in southern Sudan to establish a government based on the Bible’s Ten Commandments. Although its activities are mostly concerned with destabilizing northern 32

Prosecutor’s Position on Pre-Trial Chamber I’s Decision to convene a Status Conference, § 12 and following, available at: http://www.icc-cpi.int/library/organs/otp/ICC0104Anx_2005March08-e.pdf. 33 Prosecutor’s Position on Pre-Trial Chamber I’s Decision to convene a Status Conference, § 8 and following, available at: http://www.icc-cpi.int/library/organs/otp/ICC0104Anx_2005March08-e.pdf. 34 Prosecutor’s Position on Pre-Trial Chamber I’s Decision to convene a Status Conference, § 2, available at: http://www.icc-cpi.int/library/organs/otp/ICC0104Anx_2005March08-e.pdf 35 Prosecutor’s Position on Pre-Trial Chamber I’s Decision to convene a Status Conference, § 25 and following, available at: http://www.icc-cpi.int/library/organs/otp/ICC0104Anx_2005March08-e.pdf 36 Article 82 (1) (d) provides for an appeal against decisions of the Pre-Trial Chamber or the Trial Chamber in case of danger to a fair trial. According to Rule 155 (1) of the Rules of Procedure and Evidence this appeal has to be lodged within five days of being notified of the decision, in a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal. The Prosecutor’s Position of 8 March 2005 was hence too late. 37 Available at: http://www.icc-cpi.int/library/organs/chambers/Decision_PTCI_20050309.pdf. 38 Available at: http://www.icc-cpi.int/library/organs/otp/ICC0104_2005March11Application-e.pdf 39 Available at: http://www.icc-cpi.int/library/organs/chambers/ICC_01-04_2005March14_e.pdf 40 See the various decisions available at: http://www.icc-cpi.int/library/cases/ICC_01-04_19_e.pdf; http://www.icc-cpi.int/library/cases/ICC-01-04-21_e.pdf and http://www.icc-cpi.int/library/cases/ICC-01-0435_En.pdf. 41 Available at: http://www.icc-cpi.int/library/cases/20050526ordonnanceRDC_En.pdf. 42 Based on http://www.icc-cpi.int/library/press/pressreleases/Uganda_200401_EN.doc and http://www.globalsecurity.org/military/world/para/lra.htm.

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Uganda, the Lord’s Resistance Army has also linked up with Interahamwe rebels around the Bunia area. Furthermore, the scope of the conflict was even bigger since Sudan allegedly supported the Lord’s Resistance Army in response to suspected Ugandan support to the Sudan People’s Liberation Army, the rebel movement fighting against the Sudan government, causing a freeze in the diplomatic relations between the two countries. However, relations have improved in recent years. In 1999, Sudan and Uganda signed an agreement under which Sudan would stop aiding the Lord’s Resistance Army and Uganda would stop aiding the Sudan People’s Liberation Army. Furthermore, in 2000 Uganda adopted an amnesty act43 initially for six months, which was also applicable to the rebels of the Lord’s Resistance Army, but the law has subsequently been extended six times, lastly on 14 January 2004, for three months, but excluding the leadership of the Lord’s Resistance army. The Lord’s Resistance Army, however, continued to carry out its attacks and although its levels of activity diminished somewhat compared with 1997, the area that it targeted grew. The civil strife in the north has led to the violation of the rights of many members of the Acholi tribe, which is largely resident in the northern districts of Gulu and Kitgum. Both government forces and the Lord’s Resistance Army rebels, who themselves are mainly Acholi are reported to be committing the violations. Uganda’s Gulu and Kitgum districts have been displaced by the fighting and fled inhabitants are living in temporary camps, supposedly protected by the army, which was accused in a report of May 2004 by Christian Aid of herding civilians into camps ostensibly to protect them from the Lord’s Resistance Army without offering them the protection they needed. The Ugandan government subsequently rejected the report. The continued rebel attack in northern Uganda raised questions about planned peace talks between the Lord’s Resistance Army and Uganda’s government. Despite this, President Yoweri Museveni agreed to peace talks brokered by Ugandan religious leaders, but the Ugandan army remained sceptical of this new approach since it does not believe that Joseph Kony is interested in peace at all. In February 2003 Sudan allowed troops from neighbouring Uganda to enter its territory to attack the Lord’s Resistance Army rebels. By early 2003 optimism was growing that 16 years of fighting in northern Uganda might soon come to an end. Rebels of the Lord’s Resistance Army declared a ceasefire and stated to hold talks with the government of Yoweri Museveni. This change in stance may be due to the destruction of the Lord’s Resistance Army’s bases in southern Sudan by Ugandan troops following an agreement with the Sudanese government. This meant the rebels’ main sources of food and military supplies to be located in northern Uganda, making them much more vulnerable to attacks by government troops. However, optimism was short lived since in June 2003 Joseph Kony, instigated his fighters to destroy Catholic missions, kill priests and missionaries, and beat up nuns. In 2004 the government of Uganda continued to combat the Lord’s Resistance Army, but leaving the way open for negotiations. The Lord’s Resistance Army, however, was still capable of striking back by attacking camps for internally displaced persons in northern Uganda. By the beginning of 2005, a ceasefire had been adopted, which only lasted 18 days, after which the violence flared up and persists even till this day. B. Possible Jurisdiction and Admissibility of the International Criminal Court Jurisdiction

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The Act is available r.org/accord/uganda/accord11/downloads/2000_Jan_The_Amnesty_Act.doc.

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at

http://www.c-

As demonstrated above the jurisdiction of the International Criminal Court has four pillars, namely temporal, territorial, personal and substantive jurisdiction. The referral by Uganda of the situation concerning the Lord’s Resistance Army probably will fall under the jurisdiction of the International Criminal Court. Firstly, Uganda became a party to the Rome Statute on 14 June 2002, before the entry into force of the Rome Statute and hence the Court will have jurisdiction over crimes committed in Uganda from 1 July 2002, the entry into force of the Statute.44 This entails that a significant part of the crimes committed by the Lord’s Resistance Army will not fall under the temporal jurisdiction of the International Criminal Court, but crimes committed prior to the entry into force will be taken into account as background information, or to establish the mens rea of the perpetrator.45 Secondly, the crimes were committed on the territory of Uganda, a State party and most perpetrators will have the Ugandan nationality. Thirdly, the acts of the Lord’s Resistance Army fall within the scope of Article 5 ICC Statute, more particularly, crimes against humanity and war crimes committed in an internal armed conflict. The crimes may probably not qualify as genocide, since the necessary special intent is missing. In fact, the Lord’s Resistance Army only aims to topple and replace the Ugandan government. Moreover, the Lord’s Resistance Army is composed of members of the Acholi tribe, which lives in the north of Uganda and is suffering most of the attacks of the Lord’s Resistance Army. Furthermore, the conflict cannot be regarded as an international armed conflict, although it has transboundary effects. The conflict is between a State and a rebel group that until 2003 operated from another country, Sudan. Although this country has in the past assisted the Lord’s Resistance Army, its involvement was very likely not substantial46. Moreover, Sudan and Uganda concluded an agreement in 1999 ending Sudan’s support of the Lord’s Resistance Army and Sudan allowed Uganda to operate on its territory against the rebel group. As a result, there is no armed conflict between two States and hence no international armed conflict.47 With regard to the first qualification, crimes against humanity, the Lord’s Resistance Army is notorious for its abductions of children and civilians, turning the victims into soldiers, slave labourers or sex slaves. This happened on a massive and systematic scale: human rights NGOs reckons the number of abducted children still held captive by the group at around 3000, although estimates vary substantially. As a result, the crimes fall within the scope of Article 7 (c), (g) and (i), prohibiting enslavement, sexual slavery and enforced disappearances. Secondly, with regard to war crimes, this conduct certainly falls under Article 8 (2) (c) (ii) and (e) (vi) and (vii), forbidding outrages upon personal dignity, sexual slavery and enlisting children under 15 years in an armed group in an internal armed conflict. The Lord’s Resistance army has furthermore also conducted attacks on refugee camps and humanitarian relief personnel, which is also prohibited under Article 8 (2) (e). Lastly, while Uganda has referred the situation of the Lord’s Resistance Army to the International Criminal Court, in particular with the intention of prosecuting the leadership of the group, this does not entail that the Prosecution will only examine crimes allegedly 44

See Article 126 ICC Statute. See supra, II.1.B. 46 Article 3 (g) Definition of Aggression, Annex to General Assembly Resolution 3314 (XXIX), includes the sending by or on behalf of the State armed bands which carry out acts of armed force against another State or its substantial involvement therein as part of aggression, or the use of one State’s armed force against the sovereignty, the territorial integrity or political independence of another State, if the acts amount to a certain gravity. Hence, if a State is substantially involved in the sending of an armed group against another State, an international armed conflict is likely to arise. 47 Supra, note 18. 45

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committed by the commanders of this group, but it can also start investigations against other members of the Lord’s Resistance Army and against the members of the Ugandan armed forces, who have also allegedly committed crimes which can fall under the jurisdiction of the International Criminal Court.48 Admissibility The finding that the International Criminal Court has jurisdiction does not automatically entail that it will examine a case, since it has first to look into the admissibility of the case. As shown above, a case will only be admissible if a State is genuinely unable or unwilling to prosecute.49 In the case of Uganda, there might arise some problems. Firstly, it is hard to see that Uganda is unable to prosecute members of the Lord’s Resistance Army, its leadership or members of its armed forces. The inability should result from a total or substantial collapse or unavailability of its national judicial system, which is determined by the inability to apprehend the accused, to obtain the necessary evidence and testimony or to conduct proceedings.50 However, the judicial system in Uganda is still operational, although probably slightly less so in the northern part. Furthermore, Uganda was capable of apprehending members of the Lord’s Resistance Army: officials at a monthly press briefing in Bombo declared that 791 rebels were either captured by the army or surrendered between 1 January 2003 and 1 January 200451, and that evidence had been gathered. There are lastly no indications that Uganda is unable to conduct proceedings, for example because of lack of qualified personnel52. One could however argue that Uganda is unwilling to prosecute since it has granted amnesty to members of the Lord’s Resistance Army who have voluntarily surrendered to the government.53 This granting of amnesty can be regarded as an unwillingness to prosecute alleged perpetrators.54 However, the amnesty was amended to exclude the granting of amnesty to the leadership of the Lord’s Resistance Army, clearly demonstrating the willingness to prosecute the persons concerned, if captured. Consequently, the possibility exists that if the leadership of the Lord’s Resistance Army is arrested, the International Criminal Court could declare that specific case inadmissible. Proceedings The proceedings on the situation of Uganda are not as far developed as in the situation of the Democratic Republic of Congo and hence less turbulent. In December 2003 Uganda referred the situation concerning the Lord’s Resistance Army to the International Criminal Court. On 5 July 2004 the Presidency assigned the case to Pre-Trial Chamber II55, which consequently 48

See for example the Report of Human Right Watch, available at: http://hrw.org/reports/2004/uganda0404/6.htm#_Toc67373911 49 See supra, II.1.B. 50 Article 17 (3) ICC Statute. 51 Available at: http://www.globalsecurity.org/military/world/para/lra.htm 52 J.T. HOLMES, “Complementarity: National Courts versus the ICC”, in A. CASSESE, P. GAETA, J.R.W.D. JONES (eds.), The Rome Statute of the International Criminal Court, A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 678. 53 Article 4 (1) Amnesty Act. 54 See J. DUGARD, “Possible Conflicts of Jurisdictions with Truth Commissions”, in A. CASSESE, P. GAETA, J.R.W.D. JONES (eds.), The Rome Statute of the International Criminal Court, A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 702. 55 Available at: http://www.icccpi.int/library/about/officialjournal/basicdocuments/Decision_on_Assignment_Uganda-OTP_Annex.pdf.

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elected a President on 16 September 200556. The last procedural step was the designation of a single judge to the situation in Uganda.57 2.3 Darfur A. Factual Situation58 The roots of the present conflict in Darfur are very complex. One of the historical causes lies in tribal feuds resulting from desertification. Other factors are the availability of modern weapons, deep layers relating to identity, governance, and the emergence of armed rebel movements which enjoy popular support among certain tribes. The two rebel groups in Darfur, the Sudan Liberation Movement/Army (SLM/A) and the Justice and Equality Movement (JEM) began organizing themselves in the course of 2001 and 2002 in opposition to the Khartoum government, which was perceived to be the main cause of the problems in Darfur. While only loosely connected, the two rebel groups cited similar reasons for the rebellion, including socio-economic and political marginalization of Darfur and its people. In addition, the members of the rebel movements were mainly drawn from local village defence groups from particular tribes, which had been formed as a response to increases in attacks by other tribes. Both rebel groups had a clearly stated political agenda involving the entirety of the Sudan, demanding more equal participation in government by all groups and regions of the Sudan. The rebels started their first military activities in late 2002 and in the beginning of 2003 through attacks mainly directed at local police offices, where the rebels could loot government property and weaponry. The government was apparently in no position to retaliate and did not initially consider the rebellion a serious military threat. Furthermore, for the government the rebellion came at a particularly inopportune time, as it was in the process of intense peace negotiations with the SPLM/A, and negotiations were advancing rapidly. In March and April 2003 the rebels attacked more government installations. The government armed forces were taken by surprise by the intensity of the attacks, which led to the strengthening of the rebel groups because of their capture of more governmental weaponry. In addition, the government of Khartoum did not posses sufficient military resources, as many of its forces were still located in the South, and those present in Darfur were mainly located in the major urban centres. Following the attacks by the rebels against rural police posts, the government decided to withdraw most police forces to urban centres, leaving the de facto control of the rural areas to the rebels. Moreover, the government was faced with an additional challenge since the rank and file of the Sudanese armed forces was largely made up of Darfurians, who were probably reluctant to fight their own people. Faced with a military threat from two rebel movements and combined with a serious deficit in terms of military capabilities on the ground in Darfur, the Government called upon local tribes to assist in the fighting against the rebels. In this way, it exploited the existing tensions between different tribes. In response to the Government’s call, mostly Arab nomadic tribes 56

Available at: http://www.icccpi.int/library/about/officialjournal/basicdocuments/Election_of_the_Presiding_Judge_of_PreTrial_Chamber_II.pdf. 57 Available at: http://www.icc-cpi.int/library/cases/ICC-02-04-PTChamber_II.pdf. 58 Based on the report of the UN International Commission of Inquiry on Darfur available at: http://www.un.org/News/dh/sudan/com_inq_darfur.pdf.

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without a traditional homeland and wishing to settle, given the encroaching desertification, responded to the call. They perhaps found in this an opportunity to be allotted land. Some reports also indicate that foreigners, from Chad, Libya and other States, responded to this call and that the Government was more than willing to recruit them. These new recruits were to become what the civilian population and others would refer to as the “Janjaweed”, or Arab militias fighting for the government. Efforts aimed at finding a political solution to the conflict began as early as August 2003 when President Deby of Chad convened a meeting between representatives of the Government and rebel groups in Abeche. The talks, which the JEM refused to join because it considered the Chadian mediation to be biased, led to the signing on 3 September 2003 of an agreement which envisaged a 45-day cessation of hostilities. Several rounds of talks then took place under Chadian mediation. On 8 April 2004, the Government and the SLM/A and JEM signed a humanitarian ceasefire agreement, and in N’Djamena on 28 May they signed an agreement on ceasefire modalities. Subsequent peace talks took place in Addis Ababa, Ethiopia, and in Abuja, Nigeria, under the mediation of the African Union. On 9 November in Abuja, the Government, the SLM/A and the JEM signed two Protocols, one on the improvement of the humanitarian situation and the second on the enhancement of the security situation in Darfur. In the context of further negotiations, the parties have not been able to overcome their differences to agree on a comprehensive solution to the conflict. Besides the political negotiations, the African Union has also been playing a leading role, through the African Mission in Sudan (AMIS), in seeking a solution to the conflict and in monitoring the ceasefire through the establishment of the AU Ceasefire Commission in Darfur, including the deployment of monitors. In spite of all of these efforts and the signing of several protocols, fighting and violations of the ceasefire between the rebels and the Government and its militias were still being reported in January 2005. One positive fact was the signing on 9 January 2005 of the Comprehensive Peace Agreement between the government of Sudan and SPLM/A in Nairobi. Apart from the African Union, the Security Council has also adopted various resolutions urging the Sudanese government to disarm the Janjaweed59, creating UNMIS60 and adopting sanctions for perpetrators of atrocities against the civilian population61; the last resolution concerning Darfur referred the situation to the International Criminal Court62. B. Possible Jurisdiction and Admissibility of the International Criminal Court Jurisdiction The mere fact of referral of a situation to the International Criminal Court does not mean that the requirements of jurisdiction should not have been met.63 In particular, the Security Council can only refer a situation to the International Criminal Court if the crimes fall within

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UN Security Council Resolution 1547 (2004); UN Security Council Resolution 1556 (2004); UN Security Council Resolution 1564 (2004); UN Security Council Resolution 1591 (2005). 60 UN Security Council Resolution 1590 (2005). 61 UN Security Council Resolution 1591 (2005). 62 UN Security Council Resolution 1593 (2005). 63 L. CONDORELLI and S. VILLALPANDO, “Referral and Deferral by the Security Council”, in A. CASSESE, P. GAETA and J.R.W.D. JONES (eds.), The Rome Statute of the International Criminal Court: a Commentary, Vol. I, Oxford, Oxford University Press, 2002, 634.

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the ambit of the Rome Statute64, or in other words can be labelled as genocide, crimes against humanity or war crimes committed in an international or internal armed conflict. However, in the situation of Darfur, this does not pose a problem since a UN Commission indicated in its report of 25 January 2005 that the crimes committed in Darfur can be considered as crimes against humanity and war crimes in an internal armed conflict.65 Although the Commission did not find a policy by the government of Sudan to commit genocide, it did not exclude that some individuals of the Janjaweed or of the government indeed had a genocidal intent.66 As a result, the crimes committed in Darfur clearly fall under the substantive jurisdiction of the International Criminal Court. With regard to the second aspect of jurisdiction, the personal or territorial jurisdiction, Article 12 (2) ICC Statute in combination with Article 13 (b) ICC Statute allows the Security Council to refer a situation to the International Criminal Court even if a State has not ratified the Rome Statute, which is the case for Sudan which has only signed the Rome Statute. Concerning temporal jurisdiction it is accepted that the Security Council can refer a situation to the International Criminal Court even for facts that occurred before the Rome Statute’s entry into force.67 However, Resolution 1593 only refers crimes committed since 1 July 2002 to the International Criminal Court, which is the date of the entry into force of the Rome Statute. Admissibility It is clear from the Preamble and Article 1 ICC Statute that the principle of complementarity is one of the core principles of the Rome Statute, which applies in every situation, even if a situation is referred by the Security Council. Furthermore Article 17 ICC Statute does not make a distinction between referrals by States, investigations under the proprio motu powers of the Prosecutor or referrals by the Security Council. Moreover, Article 53 ICC Statute permits the Prosecutor to consider the issue of admissibility in deciding whether to initiate a particular investigation without making an exception to Article 13 (b) ICC Statute. Therefore, the requirement of admissibility has to be fulfilled in the case of referral by the Security Council.68 Nevertheless, in the situation of Darfur it has been shown that Sudan was not willing to put an end to the atrocities and to punish the perpetrators. If however, Sudan prosecutes a particular perpetrator and is genuinely willing to punish him or her, the Prosecutor will be barred from initiating his own criminal proceedings under the admissibility requirement. Proceedings In the situation of Darfur no significant proceedings have started because of the recent referral by the Security Council. However, the UN Secretary General Kofi Annan handed over a sealed list containing the names of 51 suspects on 5 April 2005, based on the report of the International Commission of Inquiry in Darfur created by the Security Council.69 The Prosecutor of the International Criminal Court, Luis Moreno-Ocampo, declared that he will assess the crimes and admissibility of the case and urged the international community to 64

Ibid. Available at: http://www.un.org/News/dh/sudan/com_inq_darfur.pdf. 66 Available at: http://www.un.org/News/dh/sudan/com_inq_darfur.pdf. 67 L. CONDORELLI and S. VILLALPANDO, l.c., 636. 68 L. CONDORELLI and S. VILLALPANDO, l.c., 637; A. CASSESE, “The Statute of the International Criminal Court: Some Preliminary Reflections”, E.J.I.L. 1999, 158-159; P. GARGIULO, “The Controversial Relationship between the International Criminal Court and the Security Council”, in F. LATTANZI and W. SCHABAS (eds.), Essays of The International Criminal Court, Vol. I., Ripa Fagnano Alto, Il Sirente, 1999, 82-85. 69 At: http://www.un.org/apps/news/story.asp?NewsID=13871&Cr=sudan&Cr1. 65

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provide as much information as possible. He furthermore noted that the government of Sudan has already started investigations, which will be objectively and independently scrutinized.70 On 21 April 2005 the situation in Darfur was assigned to Pre-Trial Chamber I of the International Criminal Court71, followed by an announcement on 6 June 2005 of the Prosecutor to start investigations into the region of Darfur, concluding that the statutory requirements for initiating an investigation were satisfied.72 3. THE INTERNATIONAL CRIMINAL COURT’S FIRST AND FUTURE CHALLENGES 3.1. Balance between the Pre-Trial Chambers and the Prosecution The situation of the Democratic Republic of Congo has sparked a lively debate between the Pre-Trial Chamber and the Prosecution on procedural issues, the importance of which cannot be underestimated. The Rome Statute was a delicate balance and compromise between the tasks of the Prosecution and the International Criminal Court. While the Prosecutor was granted the authority to initiate proprio motu investigations and has a broad margin of discretion to conduct his or her investigation, these powers were not without checks: the Prosecutor may only initiate proprio motu investigations after the authorization of the PreTrial Chamber73 and the broad margin of discretion is limited by a review by the Pre-Trial Chamber.74 Hence, respecting the balance and compromise is first of all vital for the proper functioning of the Court, but moreover, it strengthens the credibility and legitimacy of the International Criminal Court towards States party and non-party. Furthermore, the Rules of Procedure and Evidence play an important part in the functioning of the International Criminal Court and in the guaranteeing of a fair trial. In contrast to the International Criminal Tribunals for the Former Yugoslavia and Rwanda where rules of evidence and procedure were drafted by judges, the binding75 Rules of Procedure and Evidence were adopted by the Assembly of State Parties. The result was a highly complex and elaborate set of rules subject to a stringent regime of amendments. All States had the opportunity to discuss at length the proposed provisions and to make proposals. Finally, the Rules of Procedure and Evidence were adopted by consensus by approximately 120 State delegations.76 As a consequence, the possibility of judge-made law was excluded and judges of the International Criminal Court have to be cautious in interpreting and applying these rules in order not to deviate from them and to usurp the powers of the Assembly of State Parties. In the case at hand, the Pre-Trial Chamber in the situation of the Democratic Republic of Congo decided to convene a status conference inter alia to take measures for witness 70

At: http://www.icc-cpi.int/press/pressreleases/99.html. At: http://www.icc-cpi.int/library/cases/ICC-02-05-1_e.pdf. 72 At: http://www.icc-cpi.int/press/pressreleases/107.html. In this announcement, the Prosecutor again emphasized the need for other mechanisms outside the International Criminal Court and honoured traditional justice systems as a tool to achieve local reconciliation. 73 Article 15 ICC Statute. 74 Article 53 ICC Statute. 75 Article 51 ICC Statute. 76 See on this issue: F. GUARIGLIA, “The Rules of Procedure and Evidence for the International Criminal Court: a New Development in International Adjudication of Individual Criminal Responsibility”, in A. CASSESE, P. GAETA and J.R.W.D. JONES (eds.), The Rome Statute of the International Criminal Court: a Commentary, Vol. II, Oxford, Oxford University Press, 2002, 1111-1133; S.A. FERNÁNDEZ DE GURMENDI and H. FRIMAN, “The Rules of Procedure and Evidence of the International Criminal Court”, Yearbook Int. Hum. Rights L. 2000, 290292. 71

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protection and the conservation of evidence. This is quite remarkable since this decision comes at a very early stage in the proceedings before anyone has been indicted. As a result, the question arises if the Pre-Trial Chamber did not infringe the tasks of the Prosecutor and if it had the legal authority to convene a status conference. The creation of an independent Prosecutor with proprio motu powers was hailed as an important innovation.77 Furthermore, this Prosecutor was granted wide authority in conducting his investigations and prosecutions. Indeed, Articles 53 and 54 ICC Statute respectively determine the discretion of the Prosecutor to initiate a case, and his powers during his investigation. According to Article 54 ICC Statute the Prosecutor can extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility; he can investigate incriminating and exonerating evidence equally; take appropriate measures to ensure the effective investigation and prosecution of crimes; collect evidence; request the presence of and interrogation of alleged perpetrators, victims and witnesses; enter into arrangements with States or international organizations to facilitate investigations; agree not to disclose information obtained on the condition of confidentiality (only for the purpose of creating new evidence); and take measures to ensure the confidentiality of information, the protection of any person or the preservation of evidence. However, this does not entail that the Pre-Trial Chamber does not have any impact on this stage. With regard to the discretionary power of the Prosecutor, the Pre-Trial Chamber can overrule the decision of the Prosecutor not to start an investigation made solely on the basis of the interest of justice.78 With regard to the investigation, the Prosecutor firstly has to obtain the authorization of the Pre-Trial Chamber if he or she starts a proprio motu investigation.79 Secondly, if the Prosecutor encounters a unique investigation opportunity, or evidence, testimonies or statements which may not be available for subsequent trial, the Pre-Trial Chamber has to be notified to protect the efficiency and integrity of the trial, in particular the rights of the defence.80 Thirdly, the Prosecutor needs the authorization of the Pre-Trial Chamber to obtain arrest warrants and to conduct investigations on the territory of a State which has not consented to co-operation. Furthermore, the Pre-Trial Chamber can where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information.81 As a result, the Pre-Trial Chamber can indeed decide on its own motion to take measures to protect evidence and witnesses.82 In this respect, the decision of 17 February 2005, which aims at the protection of witnesses and victims and preservation of evidence, seems in line with the Rome Statute. However, it remains to be seen if this can be done by the convening of a status conference. Status conferences have their origins in the International Criminal Tribunals for the Former Yugoslavia83 and Rwanda84 and are a procedural device for efficiently organizing imminent or ongoing judicial procedures. Under the Rome Statute and the Rules of Procedure the PreTrial Chamber can only authorize a status conference in the case of a confirmation hearing under Article 61 ICC Statute. Rule 121 Rules of Procedure and Evidence explicitly states that 77

A.M. DANNER, “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International criminal Court”, A.J.I.L. 2003, 515. 78 Article 53 ICC Statute and Rules 109-110 Rules of Procedure. 79 Article 15 (3) ICC Statute. 80 Article 56 ICC Statute. 81 Article 57 ICC Statute. 82 Article 57 (3) (c) and Rule 87 Rules of Evidence and Procedure. 83 Rule 65bis ICTY Rules of Procedure and Evidence. 84 Rule 65bis ICTR Rules of Procedure and Evidence.

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The Pre-Trial Chamber can hold status conferences to ensure that disclosure takes place under satisfactory conditions before the confirmation hearing which deals with the confirmation of charges against the accused. This is the sole reference to status conferences in the Pre-Trial phase and as a result, there can be no status conferences outside this context. It is moreover not useful to hold status conferences on other occasions in the Pre-Trial phase: status conferences are based on the model introduced by the Criminal Tribunal for the Former Yugoslavia and Rwanda to ensure that all evidence relevant for the confirmation hearing is disclosed by the Prosecutor to the accused and that all evidence is communicated to the PreTrial Chamber which has to rely on it to confirm the charges against the accused.85 As a result, the decision of 17 February 2005 is in breach of the Rome Statute and the Rules of Procedure and Evidence, since no person was at that time accused. Hence, there was also no need to disclose evidence to the accused or to hold a status conference. 3.2. Amnesty and Traditional Justice as Means of Conflict Resolution and the International Criminal Court A second problem arises in the situation of Uganda, where an amnesty was granted to members of the Lord’s Resistance Army who voluntarily surrendered. More generally, there is a tension between the Rome Statute requiring penal prosecution and other forms of justice and reconciliation, such as truth and reconciliation commissions, amnesties as part of a peace process, and traditional justice mechanisms integrating perpetrators back into society. However, the Rome Statute is not as such opposed to truth and reconciliation commissions and reintegration of perpetrators into society by traditional justice. Rather, the strain exists between prosecutions and amnesties, regardless of whether or not amnesties are granted by truth and reconciliation commissions or by traditional justice.86 The Rome Statute itself remains silent on the issue of amnesty. During the deliberations on the Rome Statute, South Africa and the United States sought to introduce concepts of amnesty and truth and reconciliation commissions in the Rome Statute, which led to a heated exchange of opinions which could not be reconciled at the conference.87 Clearly, amnesties and the Rome Statute do not sit easily together. Indeed the preamble states that the most serious crimes of concern to the international community as a whole must not go unpunished88, declaring to put an end to impunity of perpetrators of these crimes89 and reminding every State of its duty to prosecute these criminals90. However, there are deliberate ambiguities in the Rome Statute, which leave open the possibility of recognising amnesties.91 Before examining the this issue, one has to consider if amnesties for genocide, war crimes and crimes against humanity are legally permitted under international law at all. If not, then the 85

M. MARCHESIELLO, “Proceeding before the Pre-Trial Chambers”, in A. CASSESE, P. GAETA and J.R.W.D. JONES (eds.), The Rome Statute of the International Criminal Court: a Commentary, Vol. II, Oxford, Oxford University Press, 2002, 1242. See also S.A. FERNÁNDEZ DE GURMENDI and H. FRIMAN, l.c., 306, who mention rule 121 in the stage of confirmation hearings. 86 D. ROBINSON, “Serving the Interest of Justice: Amnesties, Truth Commissions and the International Criminal Court”, E.J.I.L. 2003, 484. 87 D. ROBINSON, l.c., 483. 88 Fourth recital Preamble ICC Statute. 89 Fifth recital Preamble ICC Statute. 90 Sixth recital Preamble ICC Statute. 91 M.P. SCHARF, “The Amnesty Exception to the Jurisdiction of the International Criminal Court”, Cornell I.L.J. 1999, 522; A. SIEBERT-FOHR, “The Relevance of the Rome Statute of the International Criminal Court and Truth Commissions”, Max Planck U.N.Y.B. 2003, 561-562.

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question whether the Rome Statute leaves open the option to grant amnesty, is futile. Although there exists some current practice in the field of conflict resolution which provides for amnesty92, international law is heading towards prohibiting amnesty for genocide, war crimes, crimes against humanity and gross human rights violations.93 Firstly, States are sometimes under a treaty-based obligation to prosecute: the Genocide Convention, whose provisions are also binding on States non-party94, explicitly requires that the crime of genocide be prosecuted95. The Geneva Conventions, applicable in international armed conflicts, to which nearly all States are party, also oblige to prosecute grave breaches96 that are a particular kind of war crimes.97 Furthermore, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment provides for prosecution of perpetrators of torture, which a fortiori is required when the torturous acts can be regarded as a crime against humanity, as does the International Convention on the Suppression and Punishment of the Crime of Apartheid.98 As a result, the granting of amnesty for these crimes directly violates the above-mentioned conventions and the only option available is prosecution. Secondly, with regard to crimes against humanity and war crimes committed in internal armed conflicts, there is indeed no generally accepted treaty provision which determines that States are obliged to prosecute these crimes. However, one could argue that customary international law requires States to prosecute individuals who allegedly have committed crimes against humanity, or that at least there is a strong tendency towards the formation of this rule of customary international law. Moreover, there is a treatybased duty to prosecute the perpetrators of certain crimes against humanity.99 Furthermore, war crimes committed in an internal armed conflict were included in the Statutes of the ad hoc Tribunals for Yugoslavia and Rwanda reflecting the opinion of the international community that impunity for these violations is not longer tolerable.100 Thirdly, human rights bodies frequently have demanded that violations of human rights be investigated and “brought to justice”.101

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See for example the amnesties of South Africa and Haiti, mentioned in M.P. SCHARF, l.c., 509-510; the amnesty in Sierra Leone, mentioned in J. GAVRON, “Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court”, I.C.L.Q. 2002, 107. 93 D. ROBINSON, “Serving the Interest of Justice: Amnesties, Truth Commissions and the International Criminal Court”, E.J.I.L. 2003, 490-493; D.G. NEWMAN, “The Rome Statute, Some Reservations concerning Amnesties, and a Distributive Problem”, American University International Law Review 2005, 306. 94 Reservations to the Genocide Convention, Advisory Opinion of 28 May 1951, I.C.J. Rep. 1951, 23. 95 Article IV Genocide Convention (1948). 96 Article 49 Geneva Convention I (1949); Article 50 Geneva Convention II (1949); Article 129 Geneva Convention III (1949); Article 146 Geneva Convention IV (1949). 97 M.P. SCHARF, l.c., 515. 98 Article 4 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (1989) and Article IV (b) International Convention on the Suppression and Punishment of the Crime of Apartheid. 99 For example the crimes against humanity of torture and apartheid, respectively . 100 J. GAVRON, “Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court”, I.C.L.Q. 2002, 103-106. 101 Barbato v. Uruguay Case, Human Rights Committee (84/81), § 11, at http://www1.umn.edu/humanrts/undocs/session38/84-1981.htm; Bleier v. Uruguay Case, Human Rights Committee (R.7/30), § 15, at http://www1.umn.edu/humanrts/undocs/session37/7-30.htm; Muteba v. Zaïre Case, Human Rights Committee (124/82), §§ 12-13, at http://www1.umn.edu/humanrts/undocs/session39/1241982.htm; Goninez Cruz Case, Inter-American Court on Human Rights, IACHR Series A, No. 5, § 179; A. v. The United Kingdom Case, European Court on Human Rights, 23 September 1998, E.H.R.R. 1999, p. 611 § 22; X. and Y. v. The Netherlands Case, European Court on Human Rights, 26 March 1985, Publ. Court, Series A, Vol. 91, § 27.

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Apparently, international law chooses the path of prosecution, instead of allowing amnesties, in cases of genocide, war crimes, crimes against humanity and gross human rights violations. But does this mean that amnesty is always precluded? Firstly, a closer examination of the duty to prosecute reveals that this duty is governed by the due diligence rule102, entailing that it is not an absolute duty, but that reasonable efforts need to be made to investigate and punish serious human rights violations.103 Indeed, it is sometimes impossible to prosecute everyone, since this would lead to the imprisonment of a substantial part of the population.104 Consequently, an amnesty for the individuals at the bottom of the hierarchical ladder would be possible, excluding those who have committed the gravest atrocities.105 In this respect, the Ugandan amnesty could be compatible with international law since it excludes the leadership of the Lord’s Resistance Army and since the low-level perpetrators were often victims themselves of child abduction and often forced to commit atrocities.106 Secondly, States could argue that they are granting amnesty because of necessity to end an ongoing conflict or to prevent the re-emergence of the conflict. International law indeed provides that States can invoke a state of necessity, which precludes the wrongfulness of the breach, namely the duty to prosecute, but under stringent conditions, laid down in Article 25 of the International Law Commission Draft Articles on State Responsibility for Internationally Wrongful Acts (2001). According to this provision a state of necessity may not be invoked, unless it is the only way a State can protect an essential interest against a grave and imminent peril and the necessity does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. Although the conditions are strict, one cannot exclude that an amnesty is indeed the only way to safeguard a State against a grave and imminent peril, for example if the refusal to grant amnesty would result in civil war or in genocidal acts. The question arises if and how the International Criminal Court can get confronted with an amnesty during its proceedings. Nowhere does the Rome Statute provide for the mandatory prosecution by the State Parties of genocide, war crimes and crimes against humanity.107 On the contrary, the possibility of amnesty and its barring effect to initiate prosecutions might even be included in the Rome Statute if the amnesty is consistent with general international law. Firstly, under Article 16 of the ICC Statute the Security Council can request the International Criminal Court to defer a case for a period of twelve months by a resolution adopted under Chapter VII of the Charter of the United Nations, which can be renewed by the Security Council under the same conditions. One could argue that this article leaves open the option of an amnesty if the Security Council requests a case to be deferred because it fears that the International Criminal Court will undo the amnesty by prosecuting the perpetrators. However, the Security Council can only act under Chapter VII if there is a threat to international peace and security and one could debate whether the undoing of an amnesty falls within that category after a considerable period of time has passed.108 Still, when the UN is trying to settle a conflict and the provision of an amnesty is on the bargaining table the

102

Velasquez Rodriguez Case, Inter-American Court on Human Rights, IACHR Series C, No.4, § 174. Velasquez Rodriguez Case, Inter-American Court on Human Rights, IACHR Series C, No.4, § 177 104 For example in the cases of Lebanon, South Africa, Sierra Leone, the former Yugoslavia. 105 D. ROBINSON, l.c., 493-495. D.F. ORENTLICHER, “Setttling Accounts: The Duty to prosecute Human Rights Violations of a Previous Regime”, Yale Law Journal 1991, 2598-2599 (arguing for a general duty to prosecute, but limited in case of transitional regimes to the prosecutions of the most important violators and leaders). 106 Children were often forced to maim, kill and torture others, including other children; see http://www.globalsecurity.org/military/world/para/lra.htm. 107 A. SIEBERT-FOHR, l.c., 559. 108 J. GAVRON, l.c., 108-109; A. SIEBERT-FOHR, l.c., 583-584. 103

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Security Council could indeed decide to request a case to be deferred because of a threat to peace and security. Secondly, amnesties could bar prosecution in relation to the complementarity principle. Article 17 (1) ICC Statute provides that a situation will be inadmissible if the case is being investigated or prosecuted by a State which has jurisdiction over it and if the State after an investigation has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. According to some scholars, amnesty, under certain conditions, can fall under this provision109, but much depends on the interpretation of the terms “investigation”, “decision” and “unwillingness or inability”;110 the narrower they are interpreted, the more unlikely amnesty will fall under its scope. Thirdly, the granting of amnesty might bar prosecution by the International Criminal Court on the basis of Article 53 ICC Statute, which gives the Prosecutor the discretion to refuse to initiate proceedings because there are substantial reasons to believe that an investigation would not serve the interests of justice, taking into account the gravity of the crime and the interests of victims.111 The Prosecutor might indeed find that, for example, in cases where truth and reconciliation commissions have helped the transitional process and have not granted blanket amnesty, any prosecution will not be in the interest of justice, but on the contrary risks inflaming the conflict anew. 3.3. The Possible Problems of the Referral by the Security Council of the Situation in Darfur The referral of the situation in Darfur by the Security Council in Resolution 1593 creates some problems. Firstly, even although the resolution obliges the government of Sudan to ‘cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’, it also recognizes that States that are not a party to the Rome Statute are under no legal obligation to assist, even though the Security Council urges those States to co-operate fully. This leaves the door open for non-assistance by States not party to the Rome Statute, although the situation in Darfur creates a threat to the international community as a whole. However, Resolution 1593 does not oblige those States to assist the International Criminal Court and hence to aid in combating this threat. Furthermore, the resolution only invites the International Criminal Court and the African Union to discuss practical arrangements that will facilitate the work of the Prosecutor and of the Court. This is not very strong language. Secondly, the resolution excludes nationals from a contributing State outside Sudan that is not a party to the Rome Statute. These nationals will be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State. This is perfectly legal under Article 12 (2) ICC Statute combined with Article 13 (b) ICC Statute, which allows the Security Council to sidestep the requirement of personal and territorial jurisdiction.112 This entails that the Security Council can refer a situation of a State not party to the Rome Statute to the International Criminal Court, but with the exclusion of certain individuals. While 109

A. SIEBERT-FOHR, l.c., 567-572; M.P. SCHARF, l.c., 524-525; D. ROBINSON, l.c., 498-500. D. ROBINSON, l.c., 499-500. 111 M.P. SCHARF, l.c., 524; D. ROBINSON, l.c., 486-488; J. DUGARD, “Possible Conflicts of Jurisdiction with Truth Commissions”, in A. CASSESE, P. GAETA and J.R.W.D. JONES (eds.), The Rome Statute of the International Criminal Court: a Commentary, Vol. I, Oxford, Oxford University Press, 2002, 702. 112 See supra, 2.3.B. 110

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legally correct, this mechanism is hardly morally defensible since it introduces two standards. Thirdly, the Security Council has usurped the powers of the General Assembly by declaring that none of the expenses incurred in connection with the referral will be borne by the United Nations and that such costs have to be paid by the parties to the Rome Statute and those States that wish to contribute voluntarily. Article 115 (b) ICC Statute, however, determines that the UN will provide funds to the International Criminal Court especially in the case of referrals by the Security Council, subject to the approval of the General Assembly. This matter was subsequently dealt with in the Negotiated Relationship Agreement between the International Criminal Court and the United Nations.113 Article 13 of this agreement determines that this has to be done by separate arrangements. Since this involves issues of budgetary matters, the General Assembly has to approve every separate arrangement114 and hence the Security Council cannot within its powers decide that the UN will not have to bear the costs of the referral. Moreover, it is awkward that an established threat to international peace and security is not borne by the whole international community. In sum, the most positive result of Resolution 1593 is that, at least, there is an instrument to end the impunity in Darfur. Besides the tainted wording of the referral of the Security Council, various difficulties in conducting the investigations in the field could emerge. The first major problem is the conducting of investigations in the hostile environment of Sudan. Although the Security Council has obliged Sudan to co-operate with the International Criminal Court the situation on the ground is at this point certainly not secure enough to conduct large-scale investigations. Naturally, the African Union and the International Criminal Court will have to make arrangements providing security for the investigators by the African Union peacekeeping troops. Even if this succeeds, this will not guarantee a thorough investigation since until now the African Union unfortunately has not had the military personnel and materiel to establish and keep the peace in Darfur. Although recently pledges have been made to provide funding of $300m, more support from the European Union, NATO and other donors is needed to augment the presence of the African Union peace-keeping force from 2000 to 8000.115 Until then, it is not sure if the Office of the Prosecutor can start its on-site investigations. However, timing is of the essence since evidence needs to be preserved and witnesses have to be interrogated. The more time passes, the more difficult this will become. A second major difficulty might be Sudan itself. As mentioned above Sudan will not be keen to co-operate with the International Criminal Court, despite its obligation to abide by Security Council Resolution 1593, certainly when high-ranking officials are involved. Indeed, Sudan can hamper the work of the International Criminal Court. Firstly, Sudan can try to hide behind the complementarity principle, even though the Commission of Inquiry has rather convincingly demonstrated that Sudan is unable and unwilling to prosecute. However, the Commission was not a judicial organ and the International Criminal Court has to determine in each case if the complementarity principle is fulfilled. Hence, Sudan could undertake criminal proceedings against alleged perpetrators, which on the surface might seem like genuine proceedings but are in fact mock trials. Indeed, Article 19 ICC Statute allows a State that can claim jurisdiction over the crimes concerned to challenge if it has started criminal proceedings 113

Available at: http://www.icc-cpi.int/library/asp/ICC-ASP-3-Res1_English.pdf. Article 17 UN Charter; in the Advisory Opinion on Certain Expenses of the United Nations it was argued that expenses related to the maintenance of peace and security were to be decided by the Security Council and not by the General Assembly, which the ICJ however rejected: see Certain Expenses of the United Nations, Advisory Opinion, I.C.J. Rep. 1962, 162-165. 115 Recently NATO and the EU decided to assist the African Union in providing more airlifts; see: http://news.bbc.co.uk/1/hi/world/africa/4078514.stm. 114

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itself. This will result in the referral of the situation to a Pre-Trial Chamber, which has to rule on this issue. In the meantime, however, the Prosecutor has to suspend his investigation, though there are exceptions: necessary acts of investigation taken to preserve evidence, the occurrence of a unique investigation opportunity or the existence of a considerable risk that such evidence would no longer be available and the continuation of examination which has already started before the challenge of admissibility.116 Needless to say, the procedure provided in Article 19 ICC Statute could easily be misused to gain time. Secondly, Sudan could try to prevent the transfer of accused perpetrators to the International Criminal Court, claiming that attempts to track down and arrest the persons concerned were unsuccessful. As we have seen with the failure to capture Europe’s most wanted perpetrators of international crimes, Messrs Mladic and Karadzic, this is a very real possibility indeed. Sudan is a huge country, bordering Egypt, Libya, Eritrea, Ethiopia, Kenya, Uganda, Democratic Republic of Congo, Central African Republic and Chad and has a sometimes hostile geography. As a result it is easy to hide in Sudan or in various border regions and to escape capture even if the government of Sudan would act diligently to obtain the arrest of the alleged criminals. The problem is even bigger for the leaders of the rebel movements, which are also accused of having committed international crimes. Since the government of Sudan and the African Union cannot fully operate in Darfur, these people may easily escape justice. In addition, most suspects wield great authority and status and hence can rely on the willingness of the population to help them hide. Therefore, it would not be an easy task to arraign those people to The Hague, certainly not after the declarations of Sudan that it will not co-operate with the International Criminal Court and refuses to hand over suspects to the International Criminal Court.117 A related problem is who to prosecute. The atrocities committed in Darfur are very widespread and involve a large number of perpetrators. However, the International Criminal Court is not designed, and it was never intended, to prosecute all criminals. In this respect, the UN Secretary-General handed over a list of 51 names to the Prosecutor. This should be the focal point of the Office of the Prosecutor, but probably it will not suffice. During the investigations other names will come to the surface and the question will be to decide who to prosecute and who not. But what of the alleged criminals who cannot be prosecuted? Who will prosecute them? Who will compensate the victims and who will mete out justice in these cases? In any event, the International Criminal Court has to make sure that it is not overloaded with cases, as it is already very active in the two other cases dealt with earlier on in this paper, i.e. the Democratic Republic of Congo and Uganda. These cases cannot be neglected just because of a referral by the Security Council. In this respect, the referral may not be at the right time and risk overloading the International Criminal Court, unless the Assembly of States Parties agrees to substantially increase the Court’s 2006 budget. A fourth aspect is the ongoing peace process. Will the main actors in the conflict continue their negotiations if they are aware that if peace comes, they risk being held accountable before the International Criminal Court? In this regard, one cannot ignore the reality that peace negotiations that end in a peace treaty sometimes provide for an amnesty, even for international crimes. While the validity of such provisions has been contested in international law118, they are sometimes the sole means of ending the conflict rapidly. On the other hand one could argue that the main task of the International Criminal Court is to provide justice, which is only one aspect of a new peaceful society. However, establishing peace is the duty of 116

Article 19 (7) and (8) ICC Statute. At http://news.bbc.co.uk/1/hi/world/africa/4612005.stm. 118 See supra, 3.2. 117

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the international community, in particular the Security Council, other organizations of the UN and the African Union. The International Criminal Court is only one of the actors here, albeit a necessary one. The last problem is linked to all the others, namely the loss of legitimacy of the International Criminal Court because of a failure to bring justice in Darfur. As demonstrated above, the challenges the International Criminal Court faces are not the easiest, but the Court must succeed. Until now, the story of the International Criminal Court has been successful: already 99 States are party to the Rome Statute, which is about the half the world. If the International Criminal Court proves to be successful in the handling of its cases, and certainly the case of Darfur, the momentum of the International Criminal Court is expected will pick up, which will result in more ratifications from hesitating States. If, however, the International Criminal Court fails, this will not only slow down the process of ratification, but will also weaken the legitimacy of the International Criminal Court as a suitable instrument for combating international crimes. Hence, referrals by the Security Council could decrease. It seems that the International Criminal Court is being put to the test by the very referral of the situation in Darfur by the Security Council. Whether it will pass the test or not will have an impact on its future as an instrument in combating international crimes. 4. CONCLUSION The situations in the Democratic Republic of Congo, in Uganda and in Darfur, Sudan are the first major tests for the International Criminal Court. From the facts of the cases, it is clear that important decisions will have to be made. The issues of the complementarity principle and the conformity of amnesty with the ICC Statute, which both have provoked controversy among legal scholars, will land on the desk of the International Criminal Court in the near future and its verdicts will not only have a great impact on the future case law of the Court, but also on general international law relating to the legal status of amnesties. Furthermore, the case of the Democratic Republic of Congo has brought to the fore some of the problems caused by the unique compromise reached between the inquisitorial and accusatorial legal systems in the ICC Statute: the interplay between the Prosecutor and the Pre-Trial Chamber remains open for legal conflicts between these two bodies. Until amendment of the ICC Statute and adaptation of the Rules of Procedure and Evidence, both entities have to respect strictly the division of powers laid down in those instruments. This is of vital importance for the credibility and the legitimacy of the International Criminal Court. In this respect it is regrettable that the Pre-Trial Chamber erred in its decision to hold a status conference. Furthermore, with the Darfur case the first referral by the Security Council has become reality. From the language of Resolution 1593, however, it is clear that this referral was not wanted by all members of the Security Council. A result of the resolution’s weak wording could be that the International Criminal Court’s ability to gather evidence and conduct investigations may be in jeopardy. If the International Criminal Court manages to tackle all these problems effectively, it will enhance its reputation and can play the significant role expected of it in the fight against impunity. But there is an important caveat: the International Criminal Court should always bear in mind what it can achieve and what not, leaving room for legitimate alternatives, such as truth and reconciliation commissions and traditional local justice mechanisms. This important balancing act between “top-down” and “bottom-up” approaches in dealing with post-conflict situations is not always properly understood by the international community.

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