How ICC Can Break Juba Deadlock
If the government itself were to have a case to answer for some of the atrocities in Northern Uganda by the National Resistance Army (NRA) and its successor, UPDF, prior to 2002 it is possible that the three-way deadlock scenario could be resolved
Members of Parliament in Uganda from Acholi are reported to have recently completed documenting all the war crimes and crimes against humanity committed by the Lord’s Resistance Army (LRA) and Uganda People’s Defence Forces (UPDF), the national army in the two decade conflict in Northern Uganda.
The dossier will apparently be “good for reconciliation purposes”, according to Reagen Okumu, Aswa MP. It is also pretty clear that the MPs embarked on this exercise in the full knowledge that the matter of the alleged atrocities has well moved to an arena whose dynamics is going to be a determining factor in the on-going Juba peace talks.
It could actually help break the deadlock at the Juba Peace Talks to end Uganda's war.
This dossier can be of use to advance the peace process by bringing government to account through the ICC by invoking the Continuing Violation Doctrine.
In December 2003, the government of Uganda referred to the International Criminal Court the situation concerning the Lord’s Resistance Army acts of atrocities committed in Northern Uganda. On July 8, 2005, the Chief Prosecutor of ICC, Luis Moreno-Ocampo, after concluding his investigations, issued arrest warrants for the Lord's Resistance Army leader Joseph Kony, his deputy Vincent Otti, and LRA commanders Raska Lukwiya, Okot Odiambo, and Dominic Ongwen. On October 13, 2005, Pre-Trial Chamber II decided to unseal the warrants. Of these commanders, Raska Lukwiya was reportedly killed in August 2006.
As of now, action on the warrants appear to be on hold until the results of the Juba peace talks between the Uganda government and the Lord's Resistance Army are known. However, the LRA has said it will not agree to a final settlement unless ICC chief prosecutor Moreno-Ocampo withdraws these indictments. The government’s position at present is a promise not to turn the LRA commanders over to the ICC if they sign a peace deal.
Moreno-Ocampo for his part has consistently said that the arrest warrants against Kony, Otti and others must be executed. His views were echoed on August 20 by Uganda Judge Sebutinde, who is sitting in the case of former Liberian leader Charles Taylor. Her view is that for the war crimes and crimes against humanity, the LRA top commanders must appear before an impartial and independent tribunal.
If the government itself were to have a case to answer for some of the atrocities in Northern Uganda by the National Resistance Army (NRA) and its successor, UPDF, prior to 2002 it is possible that the three-way deadlock scenario could be resolved. In accordance with the limits on the ICC’s jurisdiction, the Court’s arrest warrants focus on events from 2002 onwards. If the MPs’ dossier contains provable allegations of atrocities committed by NRA/UPDF prior to ICC limitation period, which the government failed to act on, then it is possible to commence a case under Continuing Violation Doctrine.Though not explicitly mentioned in the Rome Statue, the "Continuing Violation Doctrine" does exist in international law upon which ICC is predicated.
Furthermore, when the ICC Chief Prosecutor started the investigation of the LRA he confirmed that the ICC would continue collecting information on all relevant parties, reserving the right to prosecute others in the future. The Continuing Violation theory is applicable in relation to the Northern Uganda conflict where the Ugandan State failed to investigate or prosecute those who committed human rights violation before Rome Statue but where the effects of these violations continue after 2002 especially the many atrocities committed by UPDF around Internally Displaced People’s camps (IDPs) right up to the commencement of the Juba talks.
For the core idea of the continuing violation theory to take effect in respect of atrocities committed by the government it is imperative first to establish that any violation exists during the statutory period. Two other criteria must subsequently be fulfilled; that the act which occurred within the limitation period relates to those after it. This should be determined by examining the totality of the circumstances.
The other criteria that must be satisfied is whether the violations either were part of a series of related acts or was caused by an operational system in effect both during and after the limitations period.
The ICC operates on a system of complementarity, in that the Court is intended to complement national efforts rather than displace them. A way would be found where both the LRA indictments and any case the Uganda government has before ICC would then revert to Uganda national justice systems for determination.
This would allow the Juba peace process parties to proceed to a final resolution without any further hitch.
The writer is an a Software Developer based in London
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