Confronting Impunity through the ICC: Is Africa ready and waiting?

The establishment of the International Criminal Court (ICC) in 1998 has been widely heralded as a breakthrough in the fight against impunity in reference to the most serious crimes of concern to the international community. Indeed, it has triggered overwhelming numbers of communications detailing situations that may merit investigations. At first sight, observers feel that the first cases the ICC is going to handle are likely to come from Africa. Sure enough, the ICC Prosecutor has received and accepted a referral of the situation concerning the Lord's Resistance Army (LRA) in Northern Uganda. This referral, made by Uganda in December 2003, is the first from any of the ICC's 92 States Parties. Instructively, however, the Prosecutor is closely monitoring the situation in Ituri in the Democratic Republic of the Congo (DRC), and has indicated on several occasions that that is his priority.

It is appropriate for the ICC to focus on Africa. There is, however, one matter of concern, which relates to the continent's preparedness. While the ICC aroused relatively strong support from Africa, the Ugandan referral appears to engender considerable disenchantment amongst some interests in the continent. These developments necessitate a newer focus on the role of the ICC, largely because the manner of confronting impunity in Africa may not only have major implications for justice (and hence, peace) in the region, it could determine the future of the ICC. Several concerns are discernible in this emerging debate on the contribution that the ICC can make.

First, there is the broad question of the appropriateness of the Ugandan referral. Some argue that it is politically motivated. During the negotiations for the ICC there was scepticism that the Court might in fact be turned into a forum for politically-motivated international justice. This has brought to the fore problems relating to the political context in which the alleged crimes in the Ugandan referral were committed. Critics point out that there is an armed conflict involving various parties. They assert that the alleged crimes of the LRA have obscured equally serious crimes by the government. Besides, there are reports that the Sudanese government might have played a role in the conflict, say in supplying the LRA with weapons and bases. If these claims carry great weight, the Prosecutor might probe the Ugandan government. He might also have to indict political leadership in the Sudan. However, there are fears that the referral might be limited to crimes committed by one party to the conflict, namely the LRA. Although the Prosecutor has reiterated his impartiality and independence, he says he is unable to make the referral public because it contains confidential information.

In the circumstances, it is helpful to ponder the principle of complementarity. According to this principle, such as it is in the ICC, it is the duty of each state to investigate and try individuals for gross crimes. The ICC will only intervene if the state is unwilling or unable genuinely to perform that duty. Given that most African countries lack relatively developed legal systems, should they be encouraged to prosecute cases themselves (rather than letting the ICC intervene)?

For several reasons, it makes a lot of sense for a state to leverage the complementarity provisions. First, it forestalls an ICC investigation. This would help ease the risks of the ICC becoming the default jurisdiction for African countries, thereby increasing its credibility and legitimacy. Second, it would enhance the national judicial systems in countries that do not meet the high international fair trial standards, thereby improving access to justice generally. To be sure, the ICC envisages states will make extra efforts to improve domestic administration of criminal justice. Third, investigations and trials at the national level might be preferable to referrals to the ICC for policy and strategic reasons. For instance, they could prevent backlogging the ICC. Moreover, the interests of justice, victims and defendants might be better served when investigations and related activities are conducted close to the place where most of the particulars pertaining to the crime are located.

At all events, complementarity provisions were enshrined in the ICC to create a presumption in favour of national jurisdiction. In reality, during the ICC negotiations, the possibility that a state might voluntarily decide to relinquish its jurisdiction in favour of the ICC was considered as being inconsistent with some delegations' understanding of the principle of complementarity. In so 'relinquishing' its national jurisdiction, a state might be seen as being cooperative. But the agreement was that the ICC should not undermine the effectiveness of national justice systems and should only be resorted to in exceptional cases. One would reasonably expect this to mean that, while not being under obligation to do so, in practice states would only resort to the ICC as a matter of necessity rather than choice.

So, why would Uganda resort to the ICC? Unquestionably, there is enormous pressure being exerted on states to make referrals. The Prosecutor has suggested that states parties should make referrals to the ICC regarding certain situations in Africa. Although some would go along with the Prosecutor, others take the view that the ICC should be fully operationalized and efforts made toward universal support for the ICC before investigations can begin. The major issue would then be whether or not a state is willing or able to perform its obligations. For many, Uganda has the judicial capacity and political will to carry out prosecutions itself. On the face of it, there is no reason to believe that Ugandan authorities have decided to shield anyone from criminal responsibility for the crimes foreseen in the ICC statute. However, Uganda passed an amnesty law in order to protect those involved in the conflict from prosecution. Now the Ugandan President says he intends to amend the amnesty law to exclude the LRA leadership from its protection. This raises more questions.

Firstly, might amnesties rather than prosecutions be the better option for Africa, and secondly, what is the effect under the ICC of amnesties? Even if they are not better, the momentous political reality is that amnesties are likely to be granted in Africa especially in transitions. Negotiations on a national amnesty or official pardon are ongoing in Liberia (re Charles Taylor) and Uganda (re LRA rebel leader Joseph Kony and his deputies). Moreover, there are suggestions that amnesties might be indispensable in Sudan (talks are ongoing in Kenya to end the civil conflict in the south) and Somalia (where the Ugandan President, as current chair of IGAD, is leading peace talks).

While Uganda's intended amnesty amendment to exclude LRA leadership is aimed at ensuring that those bearing the greatest responsibility are brought to justice, it concerns some that the ICC's credibility could be questioned regarding its determination to subject only a select few to its justice. However, there is little prospect of such arrangements. Generally speaking, under international law amnesties may not be a bar to prosecution for such serious crimes as those that fall within the jurisdiction of the ICC. Having said that, there remains concern about impunity gap - one of the idiosyncrasies of ICC - that relates to the capacity of justice institutions to prosecute only a small number of perpetrators who are deemed to bear the greatest responsibility. This concept is one that in international law is controversial and unsettled. Perhaps more importantly, it is a curious paradox that this might be left to the Prosecutor's discretion in line with the ICC statute (Article 53). After taking into account all the pertinent circumstances, the Prosecutor may conclude that prosecution is not in the interests of justice.

In that context, the Ugandan referral has broached the subject of the role of advocating peace in Africa by means of dialogue. There could be cases in Africa where it might genuinely be 'expedient or a requirement of justice' that amnesties rather than prosecutions are pursued. Whilst it is arguable that no one has immunity for the most serious crimes under international law, there are cases where amnesties or pardon have been given jurisprudential recognition. Examples include South Africa and East Timor. Forget about the hair-splitting legal arguments about the clear definitions of the relevant technical terms as they applied in those specific cases. Nobody ever got to the bottom of those definitions. The imperative is whether or not in the context of the ICC it is cogent to argue that ending impunity in Africa does not necessarily mean that prosecutions will have to be pursued in every case.

An additional reason why the Ugandan referral calls for a cautious approach relates to the appropriateness of making the referral at a time when peace talks appear to be bearing fruit. In light of that, the Ugandan Amnesty Commission argues for the pursuit of amnesties rather than prosecutions. No one wants impunity in Africa to continue. Equally, nobody wants peace talks to fail. But probing LRA leaders could jeopardize a peaceful solution to the conflict.

I grant that Africa has a poor record of adjudication of crimes of the ICC type. But the key to successful national prosecutions seems to be judicial capacity and political will. There are fears that this could be a trump card in reference to Africa. Take ability to prosecute in the Ituri situation, for instance. The prevailing argument is that the Congolese judicial system would be unable to prosecute those crimes because the conflict is taking part in the extreme northeast of DRC and the central government has little control over that region. Yet, according to the Prosecutor, plans are underway for 'a consensual division of labour', whereby the ICC would target the leaders while the DRC deals with other accused persons. If one were to accept that the DRC is indeed unable to prosecute because its judicial system is fractured, it would be difficult to see why the ICC is proposing the said scenario. In any event, were African countries under the ICC's spotlight to actually initiate their own investigations and trials, it would still be open to the Prosecutor to prove that any fraudulent investigations and trials were not 'genuine'. As regards the political will of the DRC to prosecute, a major concern lies in the fact that a UN investigation points fingers at the Movement for the Liberation of Congo (MLC). MLC's leader is now in the government as part of a peace deal. Naturally, this makes it politically tricky for the DRC government to see the cases to trial.

In reference to Uganda, its national judicial system is intact and readily available, and the state is able to obtain the necessary evidence and testimony. However, to the extent that Uganda has not enacted implementing legislation, one could argue that it might be incapable of effectively discharging its ICC obligations. This is because, for instance, Ugandan national criminal legislation might not foresee the crimes in the ICC statute, thereby making it difficult to sustain adjudication. In that regard, it is noteworthy that Uganda has requested technical assistance in drafting the relevant legislation. Moreover, Uganda might be unable to carry out investigations and trial of the suspected individuals because government forces have failed to arrest them. This particularly weighs against the critics because the LRA leadership is reportedly based in a neighbouring country. While it is arguable that Uganda has been allowed to access suspected rebel bases in the Sudan, it is apparent that Ugandan forces may not have adequate and effective control in that region. Therefore, the most plausible determining factor of Uganda's inability to carry out its national proceedings regarding the LRA situation is the fact that it has not obtained the accused persons. But it is also probable that Uganda genuinely felt it needed the impartiality and/or expertise of ICC.

It is not intended here to suggest that Uganda's referral is an abuse of the ICC process, nor that it should not be supported. My modest opinion, however, is that it might be unwise for African states to either squander the complementarity provisions or use the ICC system for a purpose or in a manner that might threaten the effective execution of the object and purpose of the ICC statute as a whole. One hopes that cooperation will be extended to investigation into crimes allegedly committed by government forces, especially now that some states seem willing to either 'relinquish' their jurisdiction in favour of the ICC or consent to division of labour. Considering the intrinsic nature and the beneficiaries of the ICC, we should all work together to protect the integrity of the ICC. To state that the success of the ICC largely depends on the political will of states is one thing, to politicize the use of the ICC system, quite another. Political will is the very stuff of international law. But politicization of the ICC system will only serve to weaken universal support for the Court and erode its credibility and legitimacy.

*Josphat Ayamunda, a Kenyan lawyer, is a Rhodes Scholar at the University of Oxford and a researcher at Fahamu.

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