Humanitarian Law in Action Within Africa - PDF

CHAP TER 4 International Criminal Law Accountability for Crimes of War and...

CHAP TER 4 International Criminal Law Accountability for Crimes of War and Crimes Against Humanity [In Rwanda] the international community has again recognized and pursued a role in a process that establishes that there are certain crimes that have ramifications beyond the borders of any nation and constitute crimes against humanity. [...] Justice assigns responsibility, and few will deny that justice is an essential ingredient of social cohesion.... And even as justice is not served by punishing the accused before the establishment of guilt, neither is it served by discharging the guilty without evidence of mitigation—or remorse. Wole Soyinka1 International criminal law seeks to hold individuals accountable for committing offenses that attack the very fabric of our global society. This body of law is most explicitly enforced through trials conducted by Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. transnational judicial bodies, each operating within its own distinctive geographical, temporal, and substantive framework. As examples, the Allied powers established the Nuremburg Tribunal in 1945 to try suspected Nazi war criminals; the United Nations Security Council (Security Council) in 1993 and 1994 mandated the International Criminal Tribunals for the former Yugoslavia and Rwanda to prosecute the leading perpetrators of the genocides in those two countries; the United Nations and the Government of Sierra Leone in 2002 created the Special Court for Sierra Leone to try offenders in that country’s civil war; and by 2002, sixty states had ratified and brought into force the Rome Statute of the International Criminal Court (Rome Statute or ICC Statute), whose potential jurisdic- tion over war crimes and crimes against humanity extends throughout the world.2 Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  In addition to judicial bodies operating at the global level, international criminal law is also brought to bear through domestic prosecutions in which state courts apply criminal statutes adopted by their national legislatures for the specific purpose of giving effect to international norms. Some treaties require implementation, including the Convention Against Torture (CAT or Torture Convention), which calls on each signatory to criminalize torture under its domestic law.3 Subsequent to such domestication, the national court is invoking both national and international law when it tries an individual for specific crimes.4 Although legal scholars differ on this point, restorative justice should be considered an essential component of international criminal justice.5 In reference to the classic philosophical foundations of criminal law—retri- bution, deterrence, rehabilitation, and moral condemnation6—restoration is closest to rehabilitation and adds a collective dimension. Whereas reha- bilitation concerns the individual offender’s return to society, restorative justice seeks the transformation and healing of the society itself. From this standpoint, international criminal law is vindicated through both traditional and modern institutions at the national and local levels that facilitate amnesty and social reintegration for offenders; economic repara- tions, social assistance, and political empowerment for victims; and truth- telling and reconciliation for offenders and victims alike. Restorative justice mechanisms in Uganda, Sierra Leone, and Burundi will be explored in the three final chapters and briefly referenced in this chapter. To begin with, the Acholi communal atonement ceremony of mato oput has been held up as an alternative to war crimes prosecutions for at least some offenders in the Ugandan civil war.7 Ugandan non-governmental organizations (NGOs) are also advocating for the Ugandan parliament to create a truth-telling process at the national level. Sierra Leone, adapting Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. the South African model, established a national Truth and Reconciliation Commission (TRC) to provide assistance to victims and amnesty to offenders who publically confessed to the crimes they committed against civilians. So-called fambul tok (“family talk”) reconciliation is also occur- ring at the village level.8 Burundi’s peace accord contemplates a national truth commission to “promote reconciliation, and clarify the national history,”9 with current plans for such a mechanism to be established in 2012. Some observers suggest that ubushingantahe—traditional Burundian dispute resolution by panels of respected community members—may offer an alternative mechanism for trying suspected war criminals in the Burundian civil war.10 Alternative justice mechanisms are controversial, given the mainstream criminal law emphasis on the retributive dimension. Nevertheless, commu- nity atonement ceremonies, designed to work in tandem with national [ 124 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  reconciliation commissions, will foster a deeper popular commitment to the rule of law than would be possible solely by virtue of remote trials conducted at the national and international level.11 This greater confidence in the criminal and economic justice systems at the grassroots level may also help prevent an eventual return to violence as the social roots of the conflict are more meaningfully addressed. This chapter will focus on the formally constituted international criminal courts, namely, those tribunals created by international treaty or United Nations resolutions to try suspected perpetrators of crimes against humanity and war crimes. Later chapters will examine in greater depth the role of amnesty, truth-telling and remedial mechanisms in national dialogues on postconflict reconstruction.12 Nevertheless, this survey and assessment of international criminal justice mechanisms adopts a broader framework that recognizes the basic kinship between national reconcilia- tion and the international rule of law. International crimes include any wrongful acts defined as such by customary international law or international treaties, from piracy and human trafficking to terrorism and torture. This chapter will focus on offenses that occur in time of armed conflict, meaning war crimes, as well as acts of brutality against whole communities, defined as crimes against humanity. As explored in Chapter 2, war crimes are violations of international human- itarian law, which seeks to regulate the conduct of armed conflict through such rules as the prohibition against military attacks on civilians. As noted in Chapter 3, crimes against humanity constitute large-scale human rights violations that may occur in time of war or peace, including genocide, apart- heid, and slavery, as well as rape, torture, and other human rights abuses inflicted wholesale on the members of particular communities. Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. A. THE NUREMBERG TRIBUNAL The International Military Tribunal (IMT or Nuremberg Tribunal) was established in 1945 by the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis of August 8, 1945 (London Agreement, Nuremberg Statute, or Nuremberg Charter),13 a treaty between the four World War II victor powers: France, the Union of Soviet Socialist Republics (USSR or Soviet Union), the United Kingdom (UK), and the United States (US). Of the twenty-one Nazi leaders who were tried before the IMT, eleven received death sentences, seven received terms of imprisonment, and three were acquitted.14 Although both the Nuremberg Tribunal and the International Military Tribunal for the Far East (IMTFE or Tokyo Tribunal) have been criticized as manifestations of I N T E R N AT I O N A L C R I M I N A L L AW [ 125 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  “victors’ justice,”15 many of Nuremberg’s jurisprudential principles have withstood the tests of time including limitations on the defense of obeying orders16 and the affirmation of the rule of nullen crimen sine lege, or the prohibition against ex post facto criminal liability. In expressing fidelity to the principle of nullen crimen sine lege, the Nuremberg Tribunal was assert- ing that the defendants were aware that international law already forbade the atrocities for which they were convicted.17 The London Agreement established three sets of crimes within IMT jurisdiction—crimes against peace, crimes against humanity, and war crimes. Both war crimes and crimes against humanity were considered violations of the jus in bello governing the conduct of war. In contrast, crimes against peace were violations of the jus ad bellum, signifying that there was no justification for the decision to use military force in the first instance. Notably, the crime of genocide was not enumerated in the IMT Statute.18 Although the Nuremberg Tribunal was fundamentally an international reckoning with the “final solution,” the term genocide was not defined by treaty until the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in 1948.19 In Article 6, the Nuremberg Statute provided definitions of the crimes within its jurisdiction. Crimes against peace encompassed “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties....”20 War crimes denoted “violations of the laws or customs of war,... includ[ing]... murder, ill-treatment or depor- tation to slave labor... of civilian population..., murder or ill-treatment of prisoners of war..., killing of hostages, plunder..., wanton destruction of cities..., or devastation not justified by military necessity.”21 “Crimes against humanity, finally, meant “murder, extermination, enslavement, Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds...”22 Crimes against peace constituted the category of Nuremberg crimes most in need of elaboration. It led to a very slow evolution in the definition of aggression.23 The 2010 Amendments to the Rome Statute of the International Criminal Court on the crime of aggression (Rome Statute or ICC Statute) defines acts of aggression and crimes of aggression, although these definitions will not become operational until at least 2017. The 2010 Amendments to the Rome Statute are further discussed later in this chapter, in Section D. Contrastingly, the definition of war crimes set forth in Article 6(b) of the Nuremberg Statute remains an effective distillation of the essential content of customary international humanitarian law. [ 126 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  Nuremberg’s enumeration of war crimes was elaborated upon by the 1949 Geneva Conventions and their 1977 Additional Protocols, described in depth in Chapter 2. There is a particularly strong resonance between Nuremberg’s Article 6(b) and the Third and Fourth Geneva Conventions dealing, respectively, with the treatment of prisoners of war and civilians. The identification in the Nuremberg Statute of “devastation not justified by military necessity” as a war crime illustrates the customary norms of necessity and proportionality. This language is also consistent with the pro- vision of Additional Protocol I to the Geneva Conventions that prohibits indiscriminate attacks, including those “which may be expected to cause incidental loss of civilian life... excessive in relation to the concrete and direct military advantage anticipated.”24 Importantly, both Nuremberg and Protocol I set limits on the legality of so-called collateral damage, in US parlance, in the conduct of military operations. Finally, crimes against humanity, defined in Article 6(c) of the Nuremberg Charter, have been broadened in one very important respect since 1945. Although the essential understanding of crimes against humanity as attacks on a “civilian population” has endured, Nuremberg’s reference to “inhumane acts committed... before or during the war” has gradually been eliminated. Crimes against humanity are still defined as wholesale attacks on communities, but the connection to armed conflict is no longer neces- sary. As we shall see below, when we trace the evolution in international criminal law from the two ad hoc tribunals to the International Criminal Court (ICC), the modern consensus is that genocide and other crimes against humanity will sometimes occur in time of war, but need not.25 B. THE AD HOC TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. 1. The International Criminal Tribunal for the Former Yugoslavia The International Criminal Tribunal for the former Yugoslavia (ICTY, or Yugoslav Tribunal) was established in 1993 by Resolution 827 of the UN Security Council, acting under Chapter VII of the Charter of the United Nations (UN Charter).26 Like the Nuremberg Tribunal, the jurisdiction of the ICTY is limited both temporally and geographically, encompassing “the prosecution of persons responsible for serious violations of interna- tional humanitarian law committed in the territory of the former Yugoslavia since 1991.”27 But unlike the Nuremberg Tribunal and the ICC, both the ICTY and its sister tribunal for Rwanda lack constitutional treaties, and are instead creatures of the Security Council. As noted in Chapter 1, I N T E R N AT I O N A L C R I M I N A L L AW [ 127 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  Chapter VII Security Council resolutions are primary sources of interna- tional law because of explicit terms in the UN Charter that give them this obligatory character.28 In this sense, the ultimate validity of the so-called ad hoc tribunals ultimately rests upon a multilateral treaty, as is the case for other international courts. Nevertheless, these ad hoc institutions are distinct from other transnational criminal tribunals in that their constitu- tional structure and powers are defined by resolutions of the Security Council. Since 1993, over 160 individuals have been charged by the Yugoslav Tribunal, and 60 have been convicted of offenses against international law, including war crimes, genocide, and crimes against humanity, as defined in Articles 2–5 of the ICTY Statute.29 The conflict in the former Yugoslavia is viewed as having had both international and internal dimensions. Nevertheless, the war crimes provisions of the ICTY Statute apply specifi- cally to interstate conflicts. Thus, Article 2 of the ICTY Statute concerns “Grave breaches of the Geneva Conventions of 1949,” and Article 3 relates more generally to “Violations of the Laws and Customs of War.” The stat- ute’s definitions of war crimes draw in part from corresponding provisions of the 1949 Geneva Conventions and Additional Protocol I of 1977, which governs international armed conflicts. For example, Article 3 of the ICTY Statute prohibits the “wanton destruction of cities... not justified by mili- tary necessity... [and the] attack... of undefended towns...”30 In a similar vein, Protocol I provides that “[t]he civilian population as such... shall not be the subject of attack”31 and prohibits “an attack which may be expected to cause incidental loss of civilian life... excessive in relation to the concrete and direct military advantage anticipated.”32 With regard to genocide, the ICTY Statute definition set forth in Article 4 is modeled on that of the Genocide Convention, which includes specific Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. “acts committed with intent to destroy, in whole or in part, a national, ethni- cal, racial or religious group, as such.”33 Under the ICTY Statute, genocide entails “the special intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”34 Like the Nuremberg Charter, Article 5 of the ICTY Statute links crimes against humanity to armed conflict, but the scope of conflicts under Article 5 is broader than the war crimes provisions in Articles 2 and 3. Listing inhumane acts including murder, enslavement, torture, and rape, the tribu- nal has jurisdiction to prosecute such crimes “when committed in armed conflict, whether international or internal in character, and directed against the civilian population.”35 Thus, through Articles 2, 3 and 5, the ICTY Statute encompasses wartime atrocities in both interstate and internal conflicts, whether the atrocities are deemed war crimes or crimes against humanity. [ 128 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  2. The International Criminal Tribunal for Rwanda The International Criminal Tribunal for Rwanda (ICTR, or Rwandan Tribunal) was created by UN Security Council resolution36 in the after- math of the 1994 Rwandan Genocide, in which between five-hundred thousand and one million members of the Tutsi minority and alleged Hutu collaborators were massacred by ultranationalist Hutu militants. The tribunal was mandated to prosecute individuals for “serious violations of international humanitarian law” committed in Rwanda and neighboring countries in 1994.37 As of November 2009, the ICTR had convicted thirty- one individuals of genocide, other crimes against humanity, and war crimes;38 and acquitted six individuals of similar charges; and ten cases were pending appeal.39 In 1998, the Rwandan Tribunal became the first international criminal court to secure a conviction for genocide. The trial of Jean Kambanda, Rwanda’s Prime Minister during the 1994 genocide, represented two other precedents as well: the first genocide conviction against a former head of state, and the first guilty plea in a genocide trial. Kambanda is currently serving a life sentence.40 In 2011, the ICTR became the first international tribunal to find a woman guilty of the crime of genocide. Pauline Nyiramasuhuko, the former Rwandan Minister of Family and Women’s Affairs, and her son, Arsène Ntahobali, were convicted of genocide, war crimes, and crimes against humanity. Included among the charges against Minister Nyiramasuhuko was rape as a crime against humanity. The court found that she aided and abetted rapes carried out by her son, and hence had “responsibility as a superior.”41 Article 2 of the ICTR Statute sets forth an identical definition of genocide to that found in the ICTY Statute.42 However, in the domain Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. of war crimes and crimes against humanity, the Rwandan Tribunal takes a different approach than that of the Yugoslav Tribunal. Because the violence in Rwanda has been characterized as a civil war, the focus of the statute is on “[v]iolations of Article 3 common to the Geneva Conventions and of Additional Protocol II,”43 concerning non-international armed conflicts. Perhaps more significantly, crimes against humanity before the Rwandan Tribunal are not limited to the context of armed conflict at all, but entail murder, enslavement, torture, rape, and other offenses “when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”44 Thus the Rwandan Tribunal definitively eliminated the war nexus45 require- ment of both the Nuremberg and Yugoslav Charters for crimes against humanity. I N T E R N AT I O N A L C R I M I N A L L AW [ 129 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  C. THE SPECIAL COURT FOR SIERRA LEONE Upwards of seventy thousand people are believed to have lost their lives in the civil conflict in Sierra Leone between 1991 and 1999, when the Government of Sierra Leone and the insurgent Revolutionary United Front (RUF) signed the Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Lomé Peace Agreement, Lomé Agreement, or Lomé Accord). In response to a request by the Government of Sierra Leone, and with the authorization of the UN Security Council, the UN and the Government of Sierra Leone agreed, in 2002, to establish a Special Court for Sierra Leone (the SCSL or Special Court). The Special Court was mandated to prosecute “persons who bear the greatest responsibility for serious violations of international humanitar- ian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996.”46 Subsequent to the entry into force of the bilat- eral agreement between the UN and the Government of Sierra Leone, in 2002, the parties enacted the Statute of the Special Court for Sierra Leone (Special Court Statute), which further defined the structure and compe- tence of the Special Court, including the substantive crimes falling within its jurisdiction.47 Thirteen individuals have been indicted by the SCSL, including five commanders of the RUF, whose rebels first invaded Sierra Leone from Liberia in 1991 under the leadership of Foday Sankoh. The charged parties also included three leaders of the Civil Defense Forces (CDF), progovern- ment forces organized to combat the RUF; and four high-ranking members of the Armed Forces Revolutionary Council (AFRC), former members of the Sierra Leonean Army, who allied themselves with the RUF after mount- ing a coup against the Government of Sierra Leone in 1997.48 The thirteenth Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. indictment by the SCSL was against Charles Taylor, the former president of Liberia, believed to be the primary patron of the RUF. Of the thirteen defendants, the Special Court has convicted eight indi- viduals of crimes against humanity and war crimes, including three RUF leaders,49 two CDF officers,50 and three AFRC members.51 Foday Sankoh died in custody, one additional RUF commander died in Liberia, one CDF member died while seeking medical care, and one AFRC leader is at large after escaping detention.52 Charles Taylor’s trial entered the defense stage in July of 2009; disposition and sentencing are expected in 2012. The Special Court is notable for its prosecution and conviction of individuals from all sides of the conflict, insurgent and government-affiliated forces alike. As we shall see below, a majority of those indicted by the ICC have been affiliated with rebel movements, and those few government officials who have been indicted are not in ICC custody. [ 130 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  One fascinating aspect of the history and prosecutorial parameters of the Special Court is that the Lomé Accord of 1999 included an extremely broad amnesty for war criminals. RUF Corporal Foday Sankoh himself received an individual pardon.53 Although the UN Secretary General’s Special Representative, in endorsing the Lomé Accord, added a reservation limit- ing the scope of the amnesty to offenses not rising to the level of war crimes or crimes against humanity, the text of the treaty itself was not qualified.54 The Lomé Accord broke down in 2000, and fighting resumed, involving the RUF, UN Peacekeepers, and British Special Forces, who arrested Foday Sankoh.55 Thereafter, the Government of Sierra Leone set in motion the establishment of the Special Court of Sierra Leone, in 2002, and the pros- ecution of high-ranking members of the CDF, AFRC, and RUF for wartime atrocities, including Corporal Sankoh of the RUF. The Special Court Statute limits the Special Court’s jurisdiction to war crimes, crimes against humanity, and certain violations of Sierra Leonean law.56 Genocide was not included in the chargeable crimes because of a lack of evidence that the atrocities against civilians in Sierra Leone were moti- vated by an intention to destroy an ethnic or religious community “in whole or in part,” as required by the Genocide Convention.57 Most commentators point to profound class tensions and political corruption as the primary causes of Sierra Leone’s rebel war, rather than ethnic politics. These themes are further explored in Chapter 8. With regard to violations of humanitarian law, war crimes are referenced in the Special Court Statute principally in terms of violations of Common Article 3 of the 1949 Geneva Conventions and Additional Protocol II, both of which relate to non-international armed conflict.58 For the same reason, given the internal nature of the Sierra Leonean conflict, “grave breaches” of the Geneva Conventions are not within the jurisdiction of the Special Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. Court.59 The Special Court may also try “other serious violations of interna- tional humanitarian law,” such as attacks on humanitarian workers and the conscription of child soldiers.60 Although the Special Court’s competence does not extend to genocide, it does encompass other wholesale assaults on communities. Moreover, as with the Rwandan Tribunal, there is no requirement of a “war nexus” in the Special Court’s definition of crimes against humanity, which the statute defines as occurring in the context of a “widespread or systematic attack against any civilian population.”61 Finally, the Special Court is empowered to try certain violations of Sierra Leonean law, including the abuse or exploitation of girls.62 Another unique facet of the mandate and vision of the Special Court is the fact that its jurisdiction is limited to individuals at least fifteen years old at the time that criminal acts allegedly occurred.63 Moreover, with respect I N T E R N AT I O N A L C R I M I N A L L AW [ 131 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  to a young person between fifteen and eighteen years old, the statute requires that he or she: shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.64 Finally, when a young person comes before it, the Special Court is required to order appropriate social service interventions, from foster care to participation in disarmament and reintegration programs.65 Effectively, Article 7 of the statute signifies that, although the conscription of child soldiers is a humanitarian law violation for which individuals may be charged, child soldiers themselves may not be tried for offenses they committed while under the age of fifteen. D. THE INTERNATIONAL CRIMINAL COURT The Rome Statute of the ICC was adopted on July 17, 1998, and came into force on July 1, 2002.66 In the Preamble, state signatories commit to interna- tional cooperation in prosecuting “grave crimes” “that deeply shock the conscience of humanity.”67 Four crimes or groups of crimes fall within ICC jurisdiction: genocide, crimes against humanity, war crimes, and aggression.68 Although aggression was not defined in the 1998 Rome Statute,69 amendments to the statute adopted in 2010 now define an act of aggression as a cross-border military attack, occupation, or annexation carried out by a state’s armed forces in Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. violation of the UN Charter; and a crime of aggression as the planning or execution of such an act by an individual in control of the armed forces.70 Nevertheless, a separate amendment defers the ICC’s exercise of jurisdic- tion over the crime of aggression until at least 2017.71 The other three crimes are defined in Articles 6 through 8 of the original ICC Statute. Genocide, according to Article 6, encompasses certain acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such....”72 This definition tracks the 1948 Genocide Convention. Crimes against humanity, under Article 7, comprise certain acts “committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack...”73 The lack of reference to armed conflict in this provision indicates that the “war nexus” has been eliminated in the modern conception of crimes against humanity. [ 132 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  Finally, war crimes take on a very comprehensive character in Article 7 of the Rome Statute, combining grave breaches of the 1949 Geneva Conventions, “[o]ther serious violations of the laws and customs applicable in international armed conflict,” Common Article 3 of the Geneva Conventions, and “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character...”74 Unlike the Yugoslav Tribunal, whose war crimes provisions are limited to interna- tional armed conflict, and the tribunals of Rwanda and Sierra Leone, both of which address internal conflicts, ICC jurisdiction extends fully to both international and non-international armed conflicts. Important constraints on the potential impact of the Rome Statute are established in its “preconditions to the exercise of jurisdiction” and “issues of inadmissibility,” which are set forth in Articles 12 and 17. In most cases, in order for the ICC to be able to try an individual for one of the enumerated crimes, either the crime must have occurred on the territory of a state party to the statute, or the accused must be a national of a state party.75 If one of these two prerequisites is met, then the case may be referred to the ICC in either of two ways: referral by a state party, or commencement of an investigation by the ICC Prosecutor acting on his or her own initiative, propio motu.76 There is a third way for a case to be brought to the ICC, and that is a referral by the UN Security Council acting under Chapter VII of the UN Charter. In the case of a Security Council referral, there is no requirement that the offender is a national of a party to the Rome Statue or that the offense occurred on the territory of a state party.77 This aspect of the treaty was essential in the ICC’s ability to take on the case concerning Darfur, addressed below. Even once preconditions to jurisdiction have been met, referral of the case to the ICC is no guarantee that the court will exercise its jurisdiction. A second winnowing factor is the principle of “complementarity,” which Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. serves as an important factor in the determination of whether a case is admissible. Article 17 of the Rome Statute designates a case as inadmissible if the state is taking bona fide steps to prosecute domestically, or if the state has decided not to pursue the case for valid reasons not reflecting “the unwillingness or inability of the State genuinely to prosecute.”78 In such cases, the court in effect defers to the state’s domestic prosecution as well as its concerted decision not to prosecute. Criminal law scholar Linda Keller argues that the pursuance of alternative justice mechanisms, including truth and reconciliation procedures, may constitute valid reasons for nonprosecution, and hence ICC inadmissibility under Article 17.79 Article 17 also allows for a determination of inadmissibility if “[t]he case is not of sufficient gravity to justify further action by the Court.”80 There are three other bases for nonprosecution by the ICC in addition to a finding of inadmissibility. The first is a request for such inaction by the I N T E R N AT I O N A L C R I M I N A L L AW [ 133 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  Security Council, under Article 16; the second is the protection against double jeopardy in cases of prior conviction by a domestic court, under Article 20; and the third is the ICC Prosecutor’s discretion to defer a pros- ecution, which “is not in the interests of justice,” under Article 53. As in the context of inadmissibility, Keller reads the interests of justice deferral to encompass situations in which meaningful alternative justice mechanisms are being pursued. She cautions that neither the ICC nor the Office of the Prosecutor “should stretch the language of the statute so far unless the [alternative justice mechanisms] meet the standards of international crimi- nal justice.”81 Nevertheless, Keller suggests that in certain cases, such as Uganda, the “alternative” mechanisms may have a greater likelihood of suc- cess in meeting those standards than do the ICC prosecutions themselves: the Ugandan truth commission and mato oput constitute an improvement over ICC prosecution in advancing victim-conscious retribution, expressivism, and restorative justice while not falling that much farther short that the ICC in furthering [offender- focused] retribution and deterrence.82 As of 2011, six states have come within the jurisdiction of the ICC for the alleged occurrence on their territories of genocide, war crimes or crimes against humanity: Uganda, for crimes committed by the Lords’ Resistance Army; the Democratic Republic of the Congo (DRC), for crimes commit- ted in the Ituri region; Central African Republic (CAR), for crimes com- mitted on its territory; the Sudan, for crimes committed in the region of Darfur; Kenya, in response to postelection violence in 2007 and 2008; and Libya, for government attacks on civilians in Libya’s Arab Spring uprising.83 The Uganda, DRC, and CAR cases were state referrals; the Security Council initiated the Darfur and Libya cases; and the ICC Office of the Prosecutor opened the Kenya case propio motu, or on its own initiative.84 Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. Additionally, by late 2009, the ICC had initiated preliminary investiga- tions into possible crimes against humanity in the Republic of Guinea, based on widespread reports that Presidential Guards killed, raped, and wounded hundreds of unarmed protestors inside a stadium in the capital city of Conakry on September 28, 2009.85 Because the cases involving Kenya, Libya and Guinea are still at the preliminary stage, the discussion below is limited to the initial four ICC cases, addressing Uganda in greatest detail. The Uganda case is also discussed in Chapter 7. 1. Uganda The civil war in northern Uganda led to the first “self-referral” to the ICC. The Government of Uganda referred the situation on its territory to the [ 134 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  ICC on January 29, 2004, asking the prosecutor to investigate alleged crimes by the Lord’s Resistance Army (LRA). To date, the ICC has issued and unsealed one consolidated indictment against LRA leader Joseph Kony and his four top deputies. Kony and two of his deputies remain at large, most likely in a neighboring country,86 and the other two are deceased.87 At the time of the referral, a general amnesty for combatants was in force, which the Government intends to amend to allow for the prosecution of LRA leaders.88 Nevertheless, it remains the policy of the Ugandan govern- ment that many LRA members should not be prosecuted, either domesti- cally or internationally. The government’s 2004 press release announcing its ICC referral illustrates an important challenge to the concept of comple- mentarity, namely, the extent to which international prosecutions can coexist with and defer to domestic amnesties and national reconciliation efforts, as well as domestic prosecutions: 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.89 The Ugandan case in the ICC has been notable, and criticized, for its exclusive prosecutorial focus on rebel actors in the civil conflict, despite the fact that Ugandan troops also have been widely accused of human rights abuses in the government’s military campaign against the Lord’s Resistance Army.90 William Schabas, Director of the Irish Centre of Human Rights at the National University of Ireland, Galway, has written extensively on the work of the ICC and the Special Court for Sierra Leone, in his broader Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. treatment of transitional justice. Schabas has expressed concern that in cases of self-referral, in which a state refers the situation on its own territory to the ICC, the tendency for one-sided prosecutions may be particularly difficult to avoid. Speaking of Uganda’s President Yoweri Museveni and the LRA , Schabas writes that “Museveni... shrewdly understood that the Court might put decisive pressure upon an adversary he had been unable to defeat on the battlefield.”91 Although the ICC Office of the Prosecutor justified its exclusive indict- ment of LRA leaders on the basis of an interpretation of the lesser “gravity” of reported attacks on civilians by Ugandan government troops as com- pared to alleged LRA attacks on civilians,92 Schabas urges a different assess- ment of the relative accountability of the two parties to the Ugandan conflict. Conceding the requirement of “gravity” in the text of of Article 17 of the Rome Statute93 regarding case admissibility, Schabas nevertheless I N T E R N AT I O N A L C R I M I N A L L AW [ 135 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  suggests that a smaller number of civilian deaths attributable to the state may be just as grave as a larger number of deaths at the hands of the LRA: Even assuming that the Ugandan People’s Defense Forces have killed significantly fewer innocent civilians than the Lord’s Resistance Army, is not the fact that the crimes are attributable to the state germane to the gravity of the case?... With respect to the govern- ment forces,... we are confronted with the classic impunity paradigm: individuals acting on behalf of a state that shelters them from its own courts.94 Schabas remains convinced that the early efforts of the ICC prosecutor, including the LRA indictments, illustrate “a sincere effort to make the Court operational.” Nevertheless, he warns of the dangers of an enduring perception that the ICC “might even be counted upon to partner with governments in the pursuit of their adversaries.”95 If the situation in the Republic of Guinea results in ICC indictments against individual members of the Presidential Guard, and if the Kenya case leads to the conviction of government officials, these developments would help defuse the charge that the court is unduly focused on nonstate offenders, as would progress in the war crimes and genocide case against President Al-Bashir of the Sudan. Domestic Developments in Uganda Related to the ICC Case The ICC indictments against the top leadership of the LRA have been quite controversial within Ugandan civil society. Criticism of the court has not been limited to its failure to indict officers of the Ugandan People’s Defense Forces. An additional concern has been the impact of the LRA arrest Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. warrants on the ongoing civil conflict. Certain NGOs, notably the Beyond Juba Project, based at the Faculty of Law of Makerere University in Kampala, have been outspoken in their criticism of the international prosecutions as, at best, a distraction from progress towards meaningful social and political reform in Uganda and, at worst, a catalyst for continued armed conflict and the perpetuation of ingrained social injustice.96 Partly in response to civil society activism, the Government of Uganda called for the suspension of the ICC indictments, and the “domestication” of the Rome Statute through the establishment of a war crimes unit within Uganda’s High Court, whose “first objective will be to investigate and prosecute the top leadership of the LRA.”97 In March of 2010, the Ugandan parliament passed legislation implementing the Rome Statute and estab- lishing the International Crimes Division of the Ugandan High Court with jurisdiction to try suspected war criminals domestically.98 [ 136 ] International Legal Rules for Conflict Resolution Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  The Beyond Juba Project (BJP) appears as wary of the Ugandan govern- ment’s recent commitment to domestic prosecutions of the LRA as it has been to the ICC prosecutions, pointing to the experience of the Special Court of Sierra Leone as a cautionary tale. According to the BJP, the Special Court has expended far more funds—one hundred times the amount— on prosecuting war criminals as it has on restorative justice.99 The organiza- tion asks rhetorically whether “the prosecution of a handful of perpetrators of crimes [will] be at the cost of a broader program of reparations and com- pensation for the wrongs done to their victims.”100 The BJP is concerned that for the average Ugandan, like the average Sierra Leonean, there may be “something paradoxical about the fact that perpetrators are the object of so much more financial attention than the victims.”101 Despite calls from civil society for alternatives to ICC prosecutions of the LRA leadership, UN High Commissioner for Human Rights Navi Pillay renewed her endorsement of ICC trials in two reports issued in December 2009. Around the same time, the UN was responding to reports of attacks by the LRA in the neighboring countries of Sudan and the DRC. UN investiga- tions in 2008 and 2009 revealed the rape, mutilation, and murder of scores of civilians, as well as the displacement of hundreds of thousands more.102 2. Democratic Republic of the Congo The civil conflict in the DRC has raged for twelve years, kicked off by the overthrow of Mobutu Sese Seko in 1997. More than five million Congolese people have died. Described as Africa’s “First World War,” the conflict has been fed by internal politics, competition for mineral resources, and the intervention of six other African countries motivated by shifting loyalties to Copyright © 2012. Oxford University Press, Incorporated. All rights reserved. the governments of Laurent Kabila and his son, Joseph Kabila, president since his father’s assassination in 2001. In particular, the mercurial support of Rwanda and Uganda for various Congolese factions has been influenced by the presence of Rwandan insurgents on Congolese territory since the 1994 Rwandan genocide.103 The 5.4 million people who have died in the DRC since 1998 include hundreds of thousands of murdered civilians, and many more killed by war- related hunger and disease. In addition to massive loss of life, all factions have systematically tortured and displaced civilians, raped women, and recruited child soldiers. Congolese rebel groups fighting the DRC armed forces include the Union des Patriotes Congolais (UPC) and the Forces Patriotiques pour la Libération du Congo (FPLC).104 The Government of the Democratic Republic of the Congo referred the situation occurring on its territory to the ICC on April 19, 2004. Although I N T E R N AT I O N A L C R I M I N A L L AW [ 137 ] Moore, Jennifer. Humanitarian Law in Action Within Africa, Oxford University Press, Incorporated, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unm/detail.action?docID=1591536. Created from unm on 2025-01-21 18:34:24.  the DRC communicated with the court several months after the Government of Uganda, the ICC acted on the DRC referral first, initiating the first investigation by the ICC Office of the Prosecutor on May 23, 2004.105 The ICC Pprosecutor has issued three separate indictments against four individuals in the DRC case, all of whom are rebel leaders, as in the case of Uganda.106 The trial of Thomas Lubanga Dyilo commenced in January of 2009. Lubanga, alleged former commander of the FPLC, is charged with the war crime of conscripting children under fifteen into military combat. The trial of Germaine Katanga and Mathieu Ngudjolo Chui commenced in November of 2009. Katanga and Ngudjolo, the alleged commanders of two other rebel organizations, are charged with war crimes for conscript- ing children and attacking civilians. Their indictment also includes charges of murder, rape, and sexual sl