Poor ICC Outreach — Uganda Edition

by Kevin Jon Heller

The ICC has always had a legitimacy problem in Uganda. In particular, as Mark Kersten ably explained earlier this year, the Court is widely viewed by Ugandans as partial to Museveni, despite the fact that the OTP is supposedly investigating both the government and the LRA:

From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno-Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno-Ocampo was made aware by his staff of the appearance of partiality that this would create. Moreover, while the referral was later amended to cover the “situation in northern Uganda”, severe damage to the independence of the Court had been done. To many in northern Uganda as well as the Court’s supporters, the Prosecutor had shown his true colours: he would only prosecute the LRA and only the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni Government. Recent events won’t foster much hope that it ever will.

Given this history, you would think the Court would go out of its way to make sure people understand that it is not investigating only the LRA. You would be wrong. As I was perusing the ICC website yesterday, I found myself on the page dedicated to the Uganda situation. Other than providing information about ongoing cases, the page simply links to two press releases — one reporting the 29 January 2004 self-referral, and one reporting the OTP’s 29 July 2004 decision to open a formal investigation. Here is the self-referral press release:

President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC

ICC-20040129-44

Situation: Uganda

In December 2003 the President Yoweri Museveni took the decision to refer the situation concerning the Lord’s Resistance Army to the Prosecutor of the International Criminal Court. The Prosecutor has determined that there is a sufficient basis to start planning for the first investigation of the International Criminal Court. Determination to initiate the investigation will take place in the coming months.

President Museveni met with the Prosecutor in London to establish the basis for future co-operation between Uganda and the International Criminal Court. A key issue will be locating and arresting the LRA leadership. This will require the active co-operation of states and international institutions in supporting the efforts of the Ugandan authorities.

Many of the members of the LRA are themselves victims, having been abducted and brutalised by the LRA leadership. The reintegration of these individuals into Ugandan society is key to the future stability of Northern Uganda. This will require the concerted support of the international community – Uganda and the Court cannot do this alone.

In a bid to encourage members of the LRA to return to normal life, the Ugandan authorities have enacted an amnesty law. President Museveni has indicated to the Prosecutor his intention to amend this amnesty so as to exclude the leadership of the LRA, ensuring that those bearing the greatest responsibility for the crimes against humanity committed in Northern Uganda are brought to justice.

According to the Rome Statute, the Prosecutor has to inform all States Parties to the Statute of the formal initiation of an investigation. Following this the Prosecutor may seek an arrest warrant from the Pre-trial Chamber. To take this step, the Prosecutor must determine that there is a reasonable basis to proceed with an investigation. The Prosecutor will work with Ugandan authorities, other states and international organisations in gathering the necessary information to make this determination.

President Museveni and the Prosecutor of the International Criminal Court will hold a press conference on Thursday 29 January 2004 at 18:00 at the Hotel Intercontinental Hyde Park, London.

And here is the investigation press release:

Prosecutor of the International Criminal Court opens an investigation into Nothern Uganda

ICC-OTP-20040729-65

Situation: Uganda

The Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, has determined that there is a reasonable basis to open an investigation into the situation concerning Northern Uganda, following the referral of the situation by Uganda in December 2003. The decision to open an investigation was taken after thorough analysis of available information in order to ensure that requirements of the Rome Statute are satisfied.

The Prosecutor has notified the States Parties to the ICC and other concerned states of his intention to start an investigation, in accordance with article 18 of the Rome Statute.

Notice the subtle change of language: whereas the first press release refers to “the situation concerning the Lord’s Resistance Army,” the second press release refers to “the situation concerning Northern Uganda.” That change reflects the OTP’s rejection of the one-sided nature of Uganda’s first self-referral, as Mark discusses above. But it’s a subtle change — and the Court does not explain it on the Uganda page or anywhere else on the website. If you’re an ICC expert, you will probably pick up on the difference yourself. But if you’re a layperson, you will come away from reading about the Uganda situation believing precisely what Mark accurately describes as being so devastating to the Court’s legitimacy: namely, that the ICC is investigating the LRA — and only the LRA.

Mark and I have each complained (see here and here) about the ICC’s inability to maintain an accessible and useful website. But at least those complains were just about how difficult it is to get documents in a timely fashion. The issue with regard to Uganda goes much deeper than that — the webpage affirmatively (if unintentionally) misleads the reader about the Court’s work in a manner that can only harm the Court.

For a struggling institution, that’s simply unacceptable.

http://opiniojuris.org/2015/09/22/poor-icc-outreach-uganda-edition/

12 Responses

  1. Thanks for the post Kevin . I couldn’t understand :

    In the first press release it is stated : ” start planning ” means , we deal with a referral , referral of state member , not yet , has to do with nothing with investigation or findings , but planning it . Briefly, based upon referral, not findings (of such or such degree) .

    In the second press release ,we deal , naturally , with findings already consolidated , and then comes it appears : ” situation concerning Northern Uganda ” .

    So , why couldn’t you do a simple think Kevin , and show us , that the different language , derives or not , from new perspective , after investigating . Let alone , while the LRA are not mentioned in the second one ,but :” the situation in ….. ” Means maybe , that all options are now available in light of new configuration .

    With all due respect , it may look as a sort of false or baseless accusation from your part ( innocently of course , and yet , may look so ) .

    Thanks

  2. With a delay of some ten years since the last update is there any reason to believe THAT ANY INVESTIGATION IS ACTUALLY UNDERWAY?

  3. ER,

    Did you even bother to read the post? It’s very simple: Uganda tried to refer just the LRA; the OTP rightly redescribed the situation as including all of Northern Uganda; yet the website still makes it seem like the OTP is only investigating the LRA. That’s it. That all I was pointing out. Your comment has nothing to do with my post and makes no sense whatsoever.

  4. Kevin , are you serious ?? Being based upon those press releases , no connection at all between them and your argumentation concerning partiality .

    On the contrary, they were supporting the opposite argument:

    The first press release had to do with the referral and not the prosecutor, and the second one:

    Enlarging the scope of investigation, to northern Uganda, and not only the LRA, one could clearly understand.

    So , how could it be reconciled with your main argument in the post itself , has to do with partiality of the ICC ??

    My suggestion to you, is for you, to read again your post, written by you, I don’t know in what condition, but written by you, read again for Christ sake.

    P.S: Don’t hesitate to write my full name, as presented:” El roam ” , not the initials: ER, such denial wouldn’t spare you critics Kevin . Did you think ,I woudn’t notice ??And you would get away with it ?? Laughable !!

  5. Mark and I have each complained (see here and here) about the ICC’s inability to maintain an accessible and useful website. But at least those complains were just about how difficult it is to get documents in a timely fashion. The issue with regard to Uganda goes much deeper than that — the webpage affirmatively (if unintentionally) misleads the reader about the Court’s work in a manner that can only harm the Court.

    For a struggling institution, that’s simply unacceptable.

    Yes, because the struggle the ICC faces is that it doesn’t spend enough money on communications. And particularly, communications to academics with dedicated and unencumbered internet access.

  6. NL,

    Feel free to caricature my argument all you want. The fact remains, as Mark has explained at length, that the ICC website is just as important to individuals directly affected by the Court’s work as it is to academics, which makes the quality of the information on the website critically important to the Court’s efforts at outreach.

    You might also note that it’s 2015, not 1995. Believe it or not, people in the Global South actually have this newfangled thing called internet these days. Or do you think they still use telegrams to communicate?

  7. ER,

    So , how could it be reconciled with your main argument in the post itself , has to do with partiality of the ICC?

    You obviously didn’t read the post, because that is not by any stretch of the imagination my “main argument.” It is, in fact, precisely the opposite of what I argued.

  8. My suggestion to you, is for you, to read again your post, written by you, I don’t know in what condition, but written by you, read again for Christ sake.

    You are free to ramble on the blog all you want. But any future ad hominem attacks — such as the above — will be deleted.

  9. [Note from KJH: I am deleting this comment, having warned el roam in the comment above. It is ad hominem and has nothing to do with the substance of the post.]

  10. [Note from KJH — same. In response to one of ER’s baseless claims, I will add that I have never deleted one of his/her comments without acknowledging it as I’m doing here.]

  11. Internet penetration is estimated in Uganda at 16% of the total population, Kenya at 36%, Central African Republic at 3%, Sudan at 24%, Libya at 21%, Cote d’Ivoire at 2.72%, and Mali does the best with 75% penetration of situations currently before the court.

    Source: http://www.internetlivestats.com/

    Mobile technology will, and obviously is, changing this, but let’s not over-estimate the importance of decade old press releases on the ICC web site to the populations most affected by the Court’s work. The Court should be focusing on results — and outreach efforts have to be geared to the communities affected. That is what will build confidence in the institution and give it the credibility to deal with actors who wish to undermine its work. No one is saying ignore the web site or the internet as a vehicle of communication, but let’s not overestimate it either and assume our problems navigating a web site, are the world’s problems.

    Plus, KJH, I can’t always pick on Julian!

  12. NL,

    Sorry for the intemperate reply. I was still steaming from ER’s absurd comments.

    (And sorry to insult you deeply by not bothering to write out your nom de plume.)

    Your point is well taken. I was not trying to suggest that the Court is doomed because of two old press releases. That said, I don’t think the Court’s website is irrelevant. I imagine — without having statistics to back it up — that many people, particularly laypeople, use the website to get “official” information about situations and cases. So I still think it is disturbing that the Uganda webpage is very likely to reinforce one of the most basic criticisms of the Court — that it takes sides in conflicts.

    Now go back to attacking Julian…

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