Global Policy Forum

By Peter Magomu-Mashate

The fundamental difference between the International Court of Justice (ICJ) or World Court which is a civil tribunal that hears disputes between countries, is that, the International Criminal Court (ICC) is able to investigate and prosecute those individuals accused of crimes against humanity, genocide, and crimes of war, and will step in only if national courts are unwilling or unable to investigate or prosecute such crimes.

The ICC is charged to help defend rights of those, such as women and children, who have often had little recourse to justice. The UN contributes funds, especially when the ICC investigates and prosecutes cases referred to it by the UN Security Council.

The treaty gives the ICC jurisdiction that is complementary to existing national judicial systems or jurisdictions. This 'principle of complementarity' as it is known gives states the primary responsibility and duty to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if states fail to implement their duty.

The dilemma with the Ugandan government is therefore this: If in the interest of peace in northern Uganda the government as the complainant in the case against Kony at the ICC withdraws the case and in doing so fails to carry with it the rest of the masses who have suffered at the hands of Kony's brutality, then any individual or pressure group like Human Rights Watch in the spirit of the ICC can arguably lodge individual and separate complaints against Kony.

This is arguably the case because the state would have failed to prosecute Kony under the 'principle of complementarity' and therefore trigger the ICC's intervention because, in the case of Kony there is arguably no shortage of evidence and since the ICC is not a political court but judicial court, then the Ugandan government entering of a nolle prosequei is not an option since it is not the prosecuting authority but a complainant. In any event, any actions by the Ugandan government (complainant) may not be binding and may arguably not be able to bar future complaints against Kony by any individual or pressure group to the ICC.

Indeed, the other way out of the Kony quagmire is arguably a referendum on the peace deal. This is necessary if the case for national reconciliation is going to be made including fundamentally barring any individuals petitioning the ICC subsequently and risking scampering the settlement. In the event, any pressure groups like Human Rights Watch could be barred on the basis of lack of sufficient interest otherwise locus standi since the entire nation would have democratically exercised a say through the vote.

The Nuremberg trials, at which Nazi leaders were arraigned for crimes against humanity, set a key precedent. Despite its perhaps inevitable flaws, the process of bringing the fascist leaders to justice broke new ground. The leaders of what had been a sovereign government were being called to account for actions they had taken as supposedly sovereign entity which were in breach of human rights.

The first challenge for the ICC is therefore the 'constitutional compatibility'. For example, there are no immunities for heads of state (e.g. Charles Taylor and Gen Pinochet) (one wonders how then Kony can be immunised from future complaints), transferring one's nationals to an international criminal court (e.g. Milosevic), life imprisonment, cultural and religious and issues. Whether all these aspects can be pulled together and harmonised to answer the needs of the new world order seems to be the biggest challenge of the ICC.

Similarly, America's hostility to the court prior to 9/11 but ironically by the cynical attempt to pick and choose, directly or by proxy trials that can come before the ICC, is a big complicating factor, for example the trial of Milosevic being suitable as opposed to that of Saddam Hussein. This bid to politicise the tribunal can not be excused in the 9/11 events. This is because the ICC is built on an additional strength of being a permanent, treaty-based institution, for the prosecution of crimes committed after its creation.

Many safeguards are purported to exist in the ICC treaty to prevent frivolous or politically motivated cases. For example, all indictments require confirmation by a pre- Trial Chamber. In addition, any investigation initiated by the Prosecutor should first be approved by the pre-trial Chamber. What then needs to be investigated is how best to reconcile or at best bridge or narrow the gap between the rest of the world and the US in particular in as far as free and fair trials are concerned. The US Guantanamo (Cuba) detention centre trials provide a specimen of the dilemma posed in the post-9/11 and the needs of the international community as symbolised by the aspirations of the standard set by the ICC.

Unilateralism as exercised outside the UN mandate in the recent Iraq removal of Saddam Hussein even when the cause is just only antagonises otherwise viable international institutions. This perhaps explains on one extreme Guantanamo bay on the one hand and the ICC on the other with America unwilling to bring Saddam Hussein to such a court. Furthermore, on the basis of the 'principle of complementarity', dilemmas remain where there are wide cultural differences in terms of perception of justice and the penal codes particularly in jurisdictions of Sharia laws even where such states are signatories to the ICC. Hence in the case of the Kony saga, for those who think that Kony represents a legitimate struggle like the way the people in Northern Ireland in the United Kingdom held the IRA, would certainly strive for a political rather than a judicial resolution to the Kony saga.

However, that presupposes as I have argued above that no individual is ever going to petition ICC because such individual sees failure and/or appeasement by the Ugandan government of Kony, perhaps, at whose hands he might have lost the loved ones. The British hand in the recent peace efforts in northern Uganda is evident and welcome, not least buoyed by the recent successes in Northern Ireland conflict resolution. Hence, the British in the circumstances do have moral authority and experience to bring to the Ugandan issue.

However, even the British involvement is limited by their perception of genocide and terrorism based on the American perspective. For example, during his whistle-stop tour of West Africa in April 2002, Tony Blair, addressing the Ghana Parliament argued that increased financial support to Africa was part of the process of fighting "terrorism" because engaging African States for example, could reduce the risk of them becoming "breeding grounds for the kind of people who carried out the US attacks".

However, it is submitted that unless such financial interventions are contingent on democratisation, free and fair elections, they are doomed to fail. Moreover, African States support will depend on how the US plays its role both against the Arab States and the American role, if any, in the ICC. The recent American pressure on Sudan and the emerging picture of a settlement in southern Sudan, notwithstanding the Dafour crisis has led to these rapid developments in the Kony affair, which can only be welcomed and certainly long overdue.

The US hostility to the ICC has increased dramatically in 2002. The crux of the US concern relates to the prospect that the ICC may exercise its jurisdiction to conduct politically motivated investigations and prosecutions of US military and political personnel, for example Gen Wesley Clarke who led NATO in bombing Milosevic out of power in Belgrade. Indeed, the US opposition is in stark contrast to the strong support for the Court by most of America's closet allies.

Is the ICC therefore predominantly a European affair? And if it is, what has it got to do with Kony? Isn't politically Alternative Dispute Resolution (ADR) including the African Union (AU) offer the best local way forward? this question needs to be clearly answered as it smacks a hidden agenda and justice cannot be dispensed with a hidden agenda because the legal maxim is that justice must not only be done, but must be seen to be done.

On the other hand, even if Kony is tried in the ICC, pertinent questions arise because if it is an international criminal court, and if there is to be transparency in the dispensation of justice, to what extent can Uganda's classified information which under normal circumstances is privileged and withheld on the grounds of national security be withheld from an international tribunal where there are varying standards due to constitutional compatibility, of what is truly perceived as classified information in the interest of national security? It follows that, questions of what extent defendant Kony may be construed to have had a free and fair trial will arise, and with them the credibility of the ICC.