Nobody could know for certain how the International Criminal Court would work in practice when the Rome Statute was adopted in 1998. The first surprise was the speed at which the Statute was ratified by the 60 states necessary for the treaty to enter into force. The required number of states parties was reached already on 11 April 2002. Another surprise was how fast the ICC was confronted with its first cases and the way these cases were referred to the Court. The first three situations in Uganda, the Democratic Republic of Congo and the Central African Republic were so-called self-referrals; they were referred to the Court by the respective states themselves. The Rome Statute is not explicit about the possibility of these self-referrals (see Article 14). The modus operandi for state referrals foreseen in the Rome Statute was rather one of states parties referring cases of other states parties to the court. For a helpful discussion of the legal issues arising from these self-referrals please refer to this article by Payam Akhavan.
The emergence of self-referrals as an unexpected trigger for ICC investigations has led to some problems. This is particularly true as the Chief Prosecutor encouraged these self-referrals to obtain state cooperation. The fact that a state invites the ICC to investigate crimes committed on its own territory might raise questions concerning the ICC’s independence if these investigations are not handled extremely carefully. After all, why should a state invite the ICC to investigate if this entails negative repercussions for the very government which invited the Court? The suspicion that the government in question has cut some kind of deal with the ICC is quite natural for those who do not trust the independence of international institutions. Unfortunately, Uganda is a case in point for the problems that arise from self-referrals.
First of all, the Chief Prosecutor took the unfortunate decision to announce his investigations in Uganda side by side with the Ugandan President, Yoweri Museveni, despite the national army and the government being accused of having committed atrocities during the Lord’s Resistance Army conflict in northern Uganda. This led to immediate doubts about the independence of the ICC among the local population. Many thought that the ICC was indeed a tool for the Government of Uganda to mobilise international support against the LRA. The Chief Prosecutor quickly declared that he is independent in his investigations and would investigate all parties in Uganda, a statement that did not convince the local population.
The initial mistake of announcing investigations at the side of one of the conflict parties could have been redeemed in the course of the investigations by showing that the ICC is committed to thoroughly investigate both parties. Unfortunately, the Office of the Prosecutor (OTP) has so far largely failed to convincingly demonstrate that it has indeed investigated allegations against the Uganda People’s Defence Forces (UPDF) and the Government of Uganda. To be fair, the situation in northern Uganda is highly complicated and it is not an easy task to carry out independent investigations that satisfy the local population in this context. First of all, some of the most serious atrocities the UPDF is accused of having committed took place in the late 1980s, when the UPDF was still the National Resistance Army (NRA). There were extensive human rights violations in northern Uganda when the NRA moved to the north in pursuit of the remnants of Milton Obote’s army, after taking power in Kampala. Additionally, there were reports of extensive cattle rustling, extrajudicial killings, beatings, rape, torture and some massacres committed against the civilian population that was seen as being supportive of the former army chased out of Kampala by the NRA. The most notorious massacre attributed to NRA forces during that time is the Mukura Massacre during which the NRA allegedly herded civilians into train wagons which they later set on fire. It has taken the ICC a lot of work to explain to the local population that the Rome Statute only allows investigations of crimes committed after July 2002 and that those massacres can thus not be investigated by the ICC (see Mark’s earlier post on this).
But the problem does not stop here. Many victims of the LRA conflict firmly believe that they have suffered atrocities after July 2002 at the hands of the UPDF and the Local Defence Units (LDU) recruited by the government during the war. It is very difficult to verify these claims, even when being on the ground in northern Uganda. The main problem is that the LRA and the UPDF were using very similar or even the same uniforms. I have read a firsthand account by a former LRA fighter in which he described how the LRA removed the uniforms from UPDF soldiers killed in combat in order to wash and reuse them. This is one reason for the persistent rumours about UPDF and LDU involvement in massacres. For example, some informants claimed that the infamous Barlonyo massacre, in which over 200 people were killed by the LRA at the Barlonyo IDP Camp, was in fact perpetrated by LDU forces. Despite these rumours, former LRA Commanders have confirmed to me that the massacre was in fact committed by the LRA. Documented atrocities committed by the UPDF are on a much smaller scale. For example, the Gulu prison was stormed by UPDF soldiers in September 2002. An inmate was shot on the spot and numerous others were illegally taken into army detention facilities where they were reportedly mistreated. The army claims that the inmate was shot during an escape attempt and denies allegations of torture.
Even though reports of massacres committed by the UPDF are next to impossible to verify on the ground these rumours do exist and the doubts concerning the records of the UPDF and LDU during the northern Ugandan conflict after 2002 are very real. And this is where a transparent information policy of the OTP would be much needed. Up to today, even though the court has spent large sums on outreach in northern Uganda, many people still think that the ICC is a tool of the Ugandan government. They accuse the court of never having investigated the government or the UPDF in earnest in order to not jeopardise state cooperation. Informants have pointed out how ICC prosecutors moved with army escorts into the north and how Moreno Ocampo announced the investigations together with President Museveni to prove their point.
At the same time, the OTP has not made any useful information about its UPDF investigations public. The official line is that the OTP has investigated both sides. The OTP says that while the investigation of the UPDF is still ongoing, so far the nature and gravity of the crimes committed by the LRA have led to arrest warrants only being issued against LRA commanders. Even though this decision by the OTP is legitimate, it could have been accompanied by more detailed information on investigations of UPDF crimes. After all, the OTP has investigated the Ugandan situation for nearly seven years, and after such a long period a statement that investigations against the UPDF and the government are still ongoing is just not enough. Simply publishing a list of cases connected to the UPDF or the LDUs which were investigated by the ICC would prove many of the rumours among the local population wrong and would go a long way towards showing that the ICC is indeed an independent actor in Uganda.
The real question is: Why has the OTP decided to not make any of this information public despite long-standing accusations of bias against the Court? Do concerns of confidentiality matter more than the victims’ right to truth? If the ICC is indeed a victim centred court, it should react to the needs raised by the victims on the ground. Between 55 and 76 percent of the people in the northern communities have consistently been calling for the UPDF and the government to be held to account in surveys conducted in 2005, 2007 and 2010. One of the key characteristics for an institution created to deliver justice should be transparency, and the situation in northern Uganda clearly shows the problems that can arise out of a lack of transparency.