By Rachel Irwin in The Hague (AR No. 193, 21-Nov-08)
As International Criminal Court, ICC, judges begin a formal review of Ugandan war crimes cases, Kampala's proposal to try them itself is coming under scrutiny.
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.
The ICC issued warrants of arrest for Kony and four other LRA commanders in 2005.
The rebel leader alone faces a total of 33 counts of crimes against humanity and war crimes committed since July 2002 - including murder, rape, enslavement, pillaging and the forced enlistment of child soldiers.
Since July 2006, the LRA has been engaged in on-off peace talks with Kampala, from its base in the Democratic Republic of Congo, DRC.
While Kony has repeatedly stated that he will not sign a peace agreement until the ICC charges are dropped, he has indicated that he might be willing to be tried in a Ugandan court.
As IWPR reported in September, Uganda has already appointed three judges to a special division of the high court which has been created specifically to try the LRA leader, who is in hiding in DRC.
The agreement to set up the special division of the high court was contained in the reconciliation and accountability annex to the peace agreement negotiated early this year between the Kampala government and the LRA. Although the annex was endorsed by both the government and the LRA on February 19, the final agreement remains unsigned.
Whether this special court would be allowed to prosecute the crimes in Kony's indictment - in the event of the ICC bill being passed - is the subject of some debate among Ugandan and international law experts.
Barney Afako, a Ugandan lawyer and an adviser to the LRA peace negotiations, said that the wording of the Ugandan constitution is "at best, ambivalent", and some interpretations of it might allow for the prosecution of certain crimes, including crimes against humanity, once the ICC bill is passed.
In order for this to happen, he explained, the matter would first have to go before the constitutional court, allowing judges to make a ruling on whether certain crimes could be charged retrospectively.
Marieke Wierda, director of the prosecutions programme at the International Center for Transitional Justice, said that if the ICC bill is passed, Uganda could then pass additional legislation to help tackle the retrospective problem, allowing war crimes to be prosecuted at the special court. However, exactly how this might work is unclear.
In the meantime, she said the crimes in Kony's ICC indictment could be prosecuted under existing national law pertaining to murder, rape, and kidnapping.
She urged the international community to assist Uganda in finding "creative ways" to prosecute the LRA crimes under domestic legislation.
For instance, she suggested creating a guideline for prosecutors to investigate instances of murder, rape and abduction only if the crimes formed part of a "widespread, systematic attack" on the civilian population.
According to Wierda, an LRA trial held in Uganda - even one using existing laws - would have much more international significance than one held in The Hague.
"For the international community, it's an important investment to have Ugandans, at this moment, build their own capacity," said Wierda.
"I'm not saying everything is perfect and there won't be any problems... [But] I think [a trial in Uganda] would have much more impact than a trial in The Hague."
But many law experts believe that the crimes of which Kony stands accused are too severe, systematic and widespread to be prosecuted under Uganda's domestic law.
"These are systematic crimes that have no principle for prosecution within our Ugandan court," said Manoba. "It's best for the ICC to deal with [them]."
David Donat Cattin, director of the international law and human rights programme at Parliamentarians for Global Action, agreed, saying that the country's national law was inadequate to deal with large-scale crimes, such as the kidnap of thousands of children.
How - and if - Kony will be tried remains to be seen, particularly as the ICC bill seems no closer to being passed, four year after it was introduced to parliament.
One point of considerable contention stems from the fact that according to Uganda's constitution, a sitting president is immune from prosecution. However, the legislation enshrined in the ICC bill would allow for all persons including the head of state to be indicted.
Some analysts and parliamentarians have argued that in order to pass the draft legislation, Uganda would have to amend its constitution to allow for presidential prosecution.
Others, like Donat Cattin, say this argument is merely a stalling tactic employed by those who don't want to see the bill passed. No president, he added, is immune from international law and many countries with presidential immunity have passed this kind of legislation already.
Afako, meanwhile, said the reasons for the delay are mainly political.
"[The bill] is not being legislated in a vacuum," he said. "There's an unfinished war... It becomes a political statement to enact the ICC bill. It's not some dry, administrative act any more. It's politically charged, and that's why it's stalling."
Rachel Irwin is an IWPR reporter in The Hague.