More on Amnesty and the ICC Arrest Warrants

U.N. Secretary-General Kofi Annan has praised the issuance of the ICC arrest warrants for top Ugandan LRA rebels. He noted that “the ICC only intends to prosecute those LRA senior leaders who are alleged to bear the greatest responsibility for the most serious crimes. He therefore urges all eligible LRA combatants to take advantage of existing disarmament and reintegration programmes.” This is an interesting take on what the ICC may be doing. The ICC prosecutor’s approach may be one of attempting to drive a wedge between the indicted top LRA rebels on the one hand, and the rank and file LRA soldiers on the other, hoping that the latter will lay down their arms in exchange for an assurance of amnesty. The U.N. has more on the Annan statement here.

Meanwhile the ICC prosecutor also has issued a statement in which he emphasized that the matter was referred to the ICC by the Government of Uganda in December 2003 and confirmed again in July 2004. One might well interpret such a State referral as obviating the need for compliance with the complementarity doctrine, as the State is requesting the prosecution before the ICC rather than national courts. Put differently, can there be an Article 17 objection based on complementarity where there is an Article 14 referral by a State?

The problem with this position is that in this case a Ugandan government agency, the Uganda Amnesty Commission, is still maintaining that all LRA rebels–including those indicted by the ICC–are eligible for amnesty. According to the chair of that commission, Ugandan high court judge Peter Onega, “As far as the amnesty law is concerned, all the people who surrender to us are still eligible for a blanket amnesty including the five who were indicted by the ICC.” That conclusion is based on the Ugandan Amnesty Act of 2000 which defines amnesty as “pardon, forgiveness, exemption, or discharge from criminal prosecution or any other form of punishment by the State” and is broadly extended to anyone who “engaged in war or armed rebellion against the government of the republic of Uganda.” Thus under Ugandan amnesty law, the LRA rebels are guaranteed that they will not be “prosecuted or subjected to any form of punishment for the participation in the war or rebellion for any crime committed in the cause of the war or armed rebellion.”

So what happens when a high court judge who chairs a government commission pronounces that amnesty is still available under local law to individuals indicted under the ICC, but at the same time the government has referred the entire conflict to the ICC for investigation? Article 17(1)(b) states that a case is inadmissible under the complementarity doctrine if a “State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” Can amnesty guaranteed under local law render a case inadmissible notwithstanding a subsequent State referral? It is difficult to reach a firm conclusion without an intimate knowledge of the ICC and Ugandan law.