Paul Amoru
4 October 2008
Kampala — The planned War Crimes Division of the High Court is facing legal hurdles that now threaten to delay its operations, Justice James Ogoola has said.
And in separate interviews with experts on international criminal law, it has emerged that the hurdles might limit the court's jurisdiction to try war crimes only committed after 2007.
The war crimes court is expected to apply the International Criminal Court (ICC) standards, which include; investigation, prosecution and protection of the victims and witnesses.
"But what will be the crimes of those who will come to this court?" Justice Ogoola asked, at a recent conference about the ICC bill.
Justice Ogoola was speaking at a one day consultative meeting organised by the Uganda Human Rights Commission (UHRC) to discuss best human rights practices in the administration of justice in Kampala recently.
According to Justice Akiiki-Kiiza who heads the Uganda's War Crimes High Court Division, the court is a result of the Juba Peace Agreement between the government and leaders of the Lords Resistance Army (LRA), which is yet to be signed by either parties to allow for domestic trial of the LRA top brass indicted by the ICC.
But Justice Ogoola feels that the new court could have its scope severely limited due to the absence of an appropriate law to give it teeth. "I am pointing out all these terrible challenges that face those of us, to you, who will design the mechanism within which the court can operate," he said.
"Do we retro-activate the Criminal Rome Statute...or should we apply the Geneva Convention? But does it capture all the crimes (coded by the ICC)," Justice Ogoola wondered. The Geneva Convention of 1964 criminalises wilful killing, torture or inhuman treatment as grave war crimes.
Other crimes include wilfully causing great suffering or serious injury to body or health, transfer or unlawful confinement of a protected person. Geneva's concept of grave breaches only applies to international armed conflict and does not cover crimes against humanity.
It is believed that if the ICC Rome Statute is domesticated, it would pave way for the Uganda War Crimes High Court Division to try serious war crimes and crimes against humanity, which are not catered for in the country's criminal law and procedure.
However, Justice Ogoola says the Statute is not sufficient. "The ICC Statute cuts us off from 2002," he said. Experts on international criminal law who spoke to Saturday Monitor agreed with Justice Ogoola's view that the War Crimes Division's jurisdiction (powers) would be limited to the time when the local law which creates the court was enacted by Parliament.
This is contrary to the wishes of the people of northern Uganda and their representatives in Parliament who want the court to try cases of crimes committed by the worrying parties since 1986.
The Rome Statute, which created the ICC, does not work backwards. The Rome Statute came into force on July 1, 2002, which means that the ICC can only investigate and prosecute war crimes committed after July 1, 2002.
The legal dilemma is also compounded by Uganda's failure to domesticate the ICC statute through a bill in Parliament which would eventually give birth to the local war crimes court. The bill is already four years late.
The Penal Code, which could provide an option, does not define genocide, crimes against humanity, and war crimes. Mr Godfrey Musila, a researcher on international crime in Africa with the Institute for Security Studies told Saturday Monitor that if the ICC Act comes into force this year, the court can only prosecute crimes committed from 2007 onwards, knocking out all the charges preferred by the ICC on LRA leaders since they were committed earlier.
"Let Uganda use the available law under the Penal Code to try the LRA leaders," Mr Musila advised. Justice Ogoola's comments suggest the judiciary is pursuing a similar line. But under the Penal Code, Kony could be charged with murder and rape, which are less sounding and it is not clear whether the ICC will entertain such an arrangement.
Swedish consultant on international criminal justice PÃ¥l Wrange says: "Even if Parliament passed the ICC Statute today, the law does not work backwards. It would only be effective for future crimes." "The purpose of this principle is to ensure that an individual knows before s/he acts whether that act is penalised or not," Mr Wrange said.
According to Article 28(7) of the Ugandan Constitution: "No person shall be charged with or convicted of a criminal offence which is founded on an act or omission that did not at the time it took place constitute a criminal offence."
"But if there is an obligation to prosecute for the crimes charged (by the ICC) against Kony, then Uganda lawmakers and judges might find themselves in a very uncomfortable position - breach the Constitution or breach international law," Mr Wrange said.
He said Parliament can adopt the ICC Bill with retrospective effect, to ensure that Kony and his co-accused are tried locally. Two of the five people indicted by the ICC are now dead - Raska Lukwiya was killed in a fire fight with Ugandan forces in 2006 while Vincent Otti was killed last October, apparently in an execution ordered by Kony.
Recent reports suggested that a third man, Okot Odhiambo, had died during a clash between rival LRA factions. If confirmed, that would leave just Kony and Dominic Ongwen as potential ICC detainees.
Before Uganda can persuade the international community that a national legal process is valid, it must adopt legislation that knits ICC procedures and standards into its own laws, so that the proposed special court division is fully compatible with the Hague court.
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