By Rosebell Kagumire
Govt drafts law to save the President from prosecution
Uganda has officially become the second African country after South Africa to block a visit by Sudanese President Gen. Omar al-Bashir.
Bashir faces a similar situation in 28 other African countries and more than 90 others worldwide which are signatories to the International Criminal Court’s (ICC)Rome Statute. The number of potential arrest spots for Bashir swells if countries that are not signatories but are cooperative with the ICC are included.
Uganda placed itself between a rock and a hard place when it invited him to the 19th edition of the International Global Smart Partnership dialogue in Kampala between July 26 and 28.
Since then, analysts have pointed out that, the narrowing of space for Bashir has implications for President Yoweri Museveni and other African leaders too.
Bashir has a warrant of arrest hanging over his head issued by The Hague-based ICC for alleged war crimes and crimes against humanity in Sudan’s restive western region of Darfur between 2003 and 2008.
But African Union (AU) leaders at their July 4 summit in Sirte, Libya, had resolved not to cooperate with the ICC ‘pursuant to the provisions of Article 98 of the Rome Statute on the ICC…or the arrest and surrender of African indicted personalities.’
Since the arrest warrants were issued in March, Bashir has defiantly visited several African countries and the Middle East. But coming to Kampala would be significant because it would be the first visit to a country which is a signatory to the Rome Statute that established the ICC.
South Africa blocked Bashir from attending President Jacob Zuma’s inauguration in May with a warning that it would arrest him to honour its obligations to the ICC.
Initial indications that Bashir would attend shifted world attention to whether Uganda, as a signatory to the Rome Statute, would flout the AU position, uphold its international obligation to the ICC, and arrest him.
At the time, Lina Zedriga, a women’s peace and security advocate in Kampala, argued that although the Rome Statute puts obligations on the signatory countries to arrest the suspects, it does not impose legal punishments on countries which do not comply.
‘The institutional framework to practically deliver this arrest seems to be largely absent even at the ICC level. There is a gap as the court operates on the cooperation, so failure to cooperate is not fatal to Uganda,’ she said.
But David Mpanga, a senior lawyer in Kampala, argued that Uganda could not risk undermining the ICC.
Profile: Luis Moreno-Ocampo
Luis Moreno-Ocampo was born on June 4th, 1952 in Argentine. A lawyer by training, Ocampo has been Prosecutor of the ICC since June 16th 2003. He previously worked as a prosecutor in Argentina, combating corruption and prosecuting human rights abuses by senior military officials.
Ocampo graduated from the University of Buenos Aires Law School in 1978. From 1980 to 1984 he worked as a law clerk in the office of the Solicitor General.
1984-1992, Ocampo was a prosecutor in Argentina. He first came to public attention in 1985, as Assistant Prosecutor in the ‘Trial of the Juntas.’ The first time since the Nuremberg Trials those senior military commanders were prosecuted for mass killings. Nine senior commanders, including three former heads of state, were prosecuted and five of them were convicted.
He served as District Attorney for the Federal Circuit of the City of Buenos Aires 1987-1992 during which time he prosecuted the military commanders responsible for the Falklands War. In 1987, he helped USA prosecutors extradite Gen. Guillermo SuÃ¡rez Mason to Argentina.
He resigned in 1992 and established a private law firm, Moreno-Ocampo & Wortman Jofre. He represented the victims in extradition proceedings against Nazi war criminal Erich Priebke, and also in the trial of the murderer of Chilean General Carlos Prats.
‘Uganda cannot go with the AU on the Bashir indictment. That would not be politically expedient in light of the fact that Uganda now chairs the UN Security Council,’ Mpanga reasoned. ‘There is also the matter of Kony; how does Uganda urge the DRC and others to apprehend Kony if they lay their hands on them but then let Bashir slip through its hands?’
On the face of it, Uganda appeared to be reacting with classic confusion. Later analysis revealed, however, that it could have been orchestrated confusion.
The unstated view of most AU leaders who signed the Sirte resolution is that most of the ICC accusations of war crimes have been against Africans. Former Liberian President Charles Taylor is locked up at The Hague on trial under the jurisdiction of the Special Court for Sierra Leone, while former Democratic Republic of Congo (DRC) Vice President Jean Pierre Bemba and former DRC warlords Thomas Lubanga, Germaine Katanga, and Mathieu Ngudjolo are on trial by the ICC.
To this group, Bashir’s indictment proves that the ICC is only working at the whims of western leaders. Most African leaders fear that they could end up on trial in The Hague should they fall out of favour with the West.
On March 29, 2006 Taylor was arrested and handed to the ICC despite a 2003 assurance of immunity from prosecution from his host, then Nigerian President Olesegun Obasanjo, then South African President Thabo Mbeki and the international community. On the day Taylor was arrested Obasanjo had a scheduled meeting with then US President George Bush. Insiders claim Bush gave Obasanjo an ultimatum: ‘Arrest Taylor or meeting is off.’
At a broader level, DR Congo president Joseph Kabila has filed a similar case in the ICC against President Museveni’s government on accusations of war crimes and crimes against humanity following Uganda’s military campaign against the Kinshasa government between 1998 and 2002. If the ICC finds merit in the DRC case, we may witness Bashir-like indictments against the Ugandan leadership.
However, former UN Secretary General Kofi Annan has condemned the position of the African leaders saying they are seeking protection ‘when one of them’ is called to face justice.
‘The ICC represents hope for victims of atrocities and sends a message that no one is above the law. That hope and message will be undermined if the African Union condemns the Court because it has charged an African head of state,’ Annan said.
But threatening Bashir with arrest has other significant implications for President Museveni.
Uganda is slated to host the ICC review conference next year. As a prelude, the government is working hard to ensure the ICC Bill of 2006, which is the domestication of the Rome Statute, is enacted into law before the end of this year.
It is, therefore, interesting that in the ICC Bill which the Uganda government wants parliament to pass, Clause 19 which spells out those to be tried under the law, excludes Article 27 of the Rome Statute.
Article 27 of the Rome Statute disregards immunity conferred to the heads of state under their national law. That is why Bashir can be arrested even if he is a sitting president.
Kampala Central MP Erias Lukwago who sits on the Parliamentary Legal Committee says the domesticated ICC Bill must also hold the head of state accountable.
‘We are challenging this exclusion of the president from prosecution in case he commits war crimes. We want government to adopt the Rome Statute article that disregards [such] immunity.’
He says the reason for immunity of a sitting president in cases related to war crimes and crimes against humanity in the Ugandan law is similar to the views of African leaders towards the ICC.
According to Lukwago, Uganda cannot risk to be seen championing the arrest of Bashir when back home in the national ICC Bill they are seeking to exempt a sitting president from similar criminal liability.
The arrival in Uganda of the ICC prosecutor Luis Moreno Ocampo initially appeared to complicate the government’s strategy. Initially interpreted as an attempt to secure assurance from Uganda that it would arrest Bashir should he step into the country, Ocampo’s visit appears to have served the interests of the Uganda government more than it did the ICC.
Before Ocampo arrived, Foreign Affairs minister Sam Kuteesa, said Bashir was free to travel to Uganda.
‘We cannot invite President Bashir here and then arrest him. We don’t work like that,’ he said at a press conference.
He said Uganda would abide by the AU resolution and not act until an investigation by an AU-appointed commission has given its recommendations on Bashir’s indictment. He said the decision was not a denial of support for the Rome Statute.
However that changed when Ocampo arrived and told a press a conference in Kampala that Uganda was under obligation to arrest Bashir.
‘South Africa informed Bashir that he could be invited to President Zuma’s inauguration, but while he is there he could be arrested,’ he continued, ‘It’s a legal obligation not a political decision, it’s a court decision and Uganda, South Africa and the 30 African (member) state parties have this legal obligation, it’s clear.’
Uganda’s Junior Foreign Affairs Minister Okello Oryem who spoke at the same press meeting with Ocampo, appeared to contradict his senior minister.
‘The warrant against Bashir is already deposited here in the Solicitor General’s office,’ Okello said, ‘If and when Bashir arrives here in Uganda, then it is up to Kayihura [head of the police] to see to it that he takes action if and when it arises.’
His statement sparked a cloud of confusion. President Museveni panicked into calling Bashir to refute Oryem’s remarks. Museveni, according to the Sudan News Agency, told Bashir that Oryem’s statement did not represent the Uganda government position.
However observers now believe that Oryem could not have contradicted his senior and the president without the matter having been discussed and endorsed by the government.
However the dice was cast. Amid the confusion, Bashir could only travel to Kampala at his own peril.
So it was not surprising that Uganda’s Foreign Affairs Permanent James Mugume announced the next day that the two countries had agreed that Bashir delegates a senior cabinet official to represent him at the Smart Partnership dialogue.
President Museveni had achieved double success; Bashir would not set foot in Kampala and therefore it relieved him of the ICC obligation to arrest him or the AU responsibility to spare him.
Analysts point out that Uganda’s dilemma doubled because in December 2003 it became the first country to refer a case to the ICC, which in July 2005 issued indictments against Lord’s Resistance Army rebel leaders, Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen over 2,200 killings and 3,200 abductions between July 2002 and June 2004, in about 850 attacks.
The ICC indictments have since been blamed for the LRA’s failure or refusal to sign a peace agreement with the government.
The government is, however, aware that the ICC involvement drew international support to its efforts to end the rebellion.
Currently, a bill called the ‘LRA Disarmament and Northern Uganda Recovery Act 2009’ is being pushed through the US Senate to ensure further support.
The Uganda government has been careful not to jeopardise that through its handling of the Bashir affair.
If Bashir had come and was not arrested, it would have left Uganda in the mud and rendered the ICC indictments inconsequential. This could motivate other countries to follow suit and no other indicted person would ever get bothered by the ICC indictments.
Ocampo, who travelled to Uganda from Kinshasa where he sought MONUC support to apprehend Kony, told journalists in Kampala that was the other reason for his visit.
Ensuring that Bashir stays away from Kampala was no easy job.
On July 16, just a few hours before Mugume announced that Bashir would send a representative, a source in The Hague quoting contacts in Khartoum had told The Independent that information from Sudan indicated that Bashir was determined to come to Kampala to put the efficacy of the ICC indictments on absolute test.
The other reason that added to the pressure was that Uganda is currently heading the UN Security Council, which has not accepted the AU request to defer Bashir’s indictment for 12 months.
Complying with the International Crminal Court arrest warrant would, however, not only put Uganda’s diplomatic relations with Sudan at risk, but could also alienate Uganda from other fellow African countries that share the African Union’s thinking. If that happened, Uganda then could face political isolation by her counterparts on the continent.
This view was reinforced by the Sudanese Ambassador to Uganda Abdil Rahim al-Sadiq who said in the wake of contradicting statements from Uganda government officials that Uganda risked a diplomatic row if it dared arrest Bashir.
Uganda has in the past accused Khartoum of sponsoring the Kony rebellion in northern Uganda. It is feared that any diplomatic tiff could resurrect such hostilities and strangle the remaining hope for peace.
If arresting Bashir in Kampala could have reignited hostilities between Sudan and Uganda, not arresting him does not mean that Khartoum now counts on Uganda as an ally.
Blocking Bashir also seems to have provided a temporary rather than a permanent solution.
Even after blocking Bashir visit, South African President Jacob Zuma is still under pressure to state his country’s stand regarding Bashir’s indictment.
Human rights organisations want Zuma to categorically state that he is not party to the AU decision. The agitators include Archbishop Desmond Tutu; Richard Goldstone, former chief prosecutor of the International Criminal Tribunal for Rwanda and former Yugoslavia; and Dumisa Ntsebeza, a member of the international commission of inquiry on Darfur appointed by the UN.
Cases before the ICC
On 17 July 1998, 120 states adopt the Rome Statute, which sets up the International Criminal Court. The Rome Statute became operational on 1 July 2002 after ratification by 60 countries.
The ICC is joined by 109 countries. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings were undertaken to shield a person from criminal responsibility.
To date, three States Parties to the Rome Statute ‘ Uganda, the DR Congo and the Central African Republic ‘ have referred cases on their territories to ICC. In addition, the Security Council has referred the situation in Darfur, Sudan ‘ a non-State Party.
In Uganda’s case; The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen is currently being heard before Pre-Trial Chamber II. In this case, five warrants of arrest have been issued against the five top members of the Lords Resistance Army. Following the confirmed death of Mr Lukwiya, the proceedings against him were terminated. The four are still at large.
For DR Congo, there are three cases: The Prosecutor v. Thomas Lubanga Dyilo; The Prosecutor v. Bosco Ntaganda; and The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. Two cases are at the pre-trial stage, while the proceedings against Lubanga are at the trial stage. Lubanga, Katanga and Ngudjolo are in the ICC custody. Ntaganda is still at large.
In Darfur, there are three cases before Pre-Trial Chamber I: The Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’); The Prosecutor v. Omar Hassan Ahmad Al Bashir and suspect Bahr Idriss Abu Garda appeared voluntarily for the first time before Pre-Trial Chamber I on 18 May 2009. He is not in custody. The three other suspects remain at large.
In the Central African Republic, the case; The Prosecutor v. Jean-Pierre Bemba Gombo is at the pre-trial stage and is currently being heard before Pre-Trial Chamber II.