Complementarity in Uganda

by Kevin Jon Heller

The Institute for War & Peace Reporting has an interesting report today on the Ugandan government’s efforts to prosecute Kony and other LRA members in a special domestic court.  According to the IWPR’s report, the problem is not the lack of political will, but the potential retroactivity of the legislation necessary to make the Rome Statute’s core crimes — war crimes, crimes against humanity, and genocide — punishable under domestic Ugandan law:

ICC judges will examine the cases against the rebel Lord’s Resistance Army, LRA, suspects to determine if they should go ahead, as well as to decide if they can be prosecuted in Uganda’s proposed special court – which was reportedly established after LRA leader Joseph Kony refused to face trial in The Hague.

However, analysts point out that Uganda’s lack of legislation to prosecute war crimes is a clear obstacle to putting Kony and his men on trial in the country.

At the centre of the matter lies a bill that has been languishing in Uganda’s parliament since 2004. The legislation proposes to make the crimes of the Rome Statute – which underpins the rules of the ICC – punishable under Ugandan law. If passed, it would allow the country to prosecute war crimes and crimes against humanity, including genocide.

But law experts say that even if the draft statute is approved, Uganda’s constitution would prevent the legislation from being used to charge the LRA commanders with war crimes committed during the country’s 20-year civil war.

“Under general law, you cannot prosecute an individual for an action that did not constitute a crime [at the time it was committed],” said Joseph Manoba, coordinator of the Uganda Coalition for the International Criminal Court, UCICC, in Kampala.

That means that any crime committed prior to the passage of the ICC bill would be ineligible for prosecution as a war crime, explained Manoba.

It’s an interesting question. Nothing in international law would prohibit Uganda from retroactively criminalizing war crimes, crimes against humanity, and genocide: Article 15 of the ICCPR, which Uganda has ratified, provides that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed.”  Genocide and wartime crimes against humanity have been criminal under customary international law since the late 1940s; peacetimes crimes against humanity have been criminal since at least 1995 (with the ICTY’s Tadic decision); and war crimes in internal armed conflicts have been criminal since at least 1994 (when the Security Council created the ICTR).  International law thus entitles Uganda to prosecute any international crime committed by a member of the LRA after 1995.

The critical issue, therefore, is whether Uganda’s domestic law takes a more restrictive approach to retroactivity than the ICCPR.  The relevant provision of the Ugandan Constitution is Article 28(7): “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.”  You can see the ambiguity: Article 28(7) deviates from the ICCPR by not including international law in the criminalization inquiry, but also does not specifically limit that inquiry to crimes under Ugandan law.  I am not an expert on Ugandan constitutional law — obviously! — so I would be loathe to guess whether the difference between Article 28(7) and Article 15 of the ICCPR is intentional or an artifact of the drafting process.  But it’s obviously a critical question, because Uganda’s ability to avoid an ICC prosecution likely turns on the answer.

Readers?  Any thoughts?

http://opiniojuris.org/2008/11/21/complementarity-in-uganda/

One Response

  1. It seems that there are two different paths on this.  First, the international law obligations of the ICCPR are on the Ugandan state but Uganda may follow the English approach of needing an act to make a treaty applicable internally.  In addition, on customary international law – again an obligation on the state – the problem may be the internal rule on legality that might require a statute for the charging with the crime.  This would be consistent with the resistance to having common law crimes that is something that we have in the US (there are some states in the US that still permit common law crimes such as Florida).
    Second, the issue is not the war crime on the international plane, but vindication of the international law rule under the domestic criminal code that was in place.  One can break down the LRA acts into the kinds of crimes (theft, property damage, assault, murder, conspiracy to murder – whatever is in the code applicable at the time of the crime) and prosecute these persons under those crimes.  It is not as elegant maybe as a “war crimes trial” but it would seem the evidence that could be presented would speak to the “making a record” aspect of international criminal tribunals while also permitting this alleged problem to be circumvented.
    I would thus say that the grounds for the criminal prosecution can be found – the dodge here of hesitancy does sound somewhat in lack of political will.  I recognize that these things are not easy, but that is the nature of criminal prosecution in domestic courts for these types of horrendous facts.  But, I trust that the Ugandans will get to where they need to get.
    Best,
    Ben 

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