Friday, January 27, 2012

The ‘Give and Take’ of Complementarity

The recent acquittal of Lord’s Resistance Army rebel, Thomas Kwoyelo by Uganda’s Constitutional Court has certainly sparked my interest in the case. Kwoyelo has been charged with 12 breaches of the Geneva Conventions, which has included willful killing, taking of hostages and extensive destruction of property. The Constitutional Court has ruled that the former rebel leader was entitled to receive amnesty under the Ugandan Amnesty Act of 2000. This Act has been a positive step since its promulgation. It is estimated that the Act has demobilized around 22,000 individual’s post proclamation. What happens are that LRA members renounce and abandon their involvement in the ongoing armed rebellion, if they are to receive amnesty. Kwoyelo invoked this right under the Act but did not receive a response to his application. The case was then subsequently referred to the Constitutional Court which eventually decided that the case should be halted on the grounds that Kwoyelo was treated unfairly under the Act.

This case has certainly challenged the applicability and legal framework within which Uganda’s amnesty laws operate; and on an international level, the ICC’s principle of complementarity. Once rebels who subscribe to the Act, are granted amnesty they will face a ritual called mato oput, which is a traditional Acholi justice system practiced in Uganda. The ritual of mato oput was given centre stage as being the most appropriate to solve the current tensions between the LRA and its victims during the peace negotiations in Juba. For those of you, who might not be aware of what the ritual involves, let me briefly shed some light on it. Mato oput is “a traditional reconciliation process for a killing. It aims to promote forgiveness, healing, restoration of broken relations and ultimately greater unity and harmony between the clans of the victim and perpetrator. Compensation is usually provided to the victim as a form of satisfaction. The ritual generally involves the drinking of a bitter root mixed with local beer, also known as kwete, or water, followed by a ritual slaughtering of a goat or sheep in an exchange of food.

Reactions to the Kwoyelo ruling, has sparked mixed responses within Uganda itself. The Public prosecutor has appealed the Constitutional Court’s decision to the Supreme Court on the basis that it is in conflict with Uganda’s national and international human rights obligations. It is now left to the Supreme Court to decide in the final instance, if the case should continue.  Acholi religious leaders have praised the ruling citing that Kwoyelo deserves amnesty because it will pave the way for other LRA members who are involved in the ongoing conflict to abandon their involvement in the rebellion and peacefully reintegrate back into their communities.

The ruling in the Kwoyelo case, I am certain, will also be criticized for working to undermine the ICC’s principle of complementarity. Already, Human Rights Watch has issued a briefing paper dealing with ways in which national courts should implement justice for serious crimes committed which violate international law. The briefing paper pays special attention to the International Crimes Division (ICD) which is currently undertaking the Kwoyelo case and contains recommendations for both the ICD and the International Criminal Court to follow. The questions on the lips of many, may be that if the ICC allows States the primary right to undertake prosecutions locally (under Article 17 of the Rome Statute), and if amnesties are granted for genocide, war crimes and crimes against humanity, what does that mean for the future development of international law within States subscribing to the use of reconciliatory mechanisms, such as amnesties or blanket amnesties? Wouldn’t that give perpetrators a ‘green light’ to commit future violations and how will the ICC respond to a situation like this or others like it?

It is understandable that an institution like the ICC will no doubt see the granting of amnesty at a national level as cause for concern. I believe that a very delicate balance would have to be struck between meeting the needs of the international community through the use of retributive justice, versus meeting the needs of local communities which may in certain instances include the use of restorative justice, as the situation of Uganda has shown. What is certain is that the Court should definitely provide more opportunities for national jurisdictions to handle their own investigations and prosecutions first. Isn’t this what the principle of complementarity actually intends anyway? By allowing more leeway for national prosecutions, the ICC may secure more public support on the African continent and the trust of African States. This might certainly be one of the ways to increase the Court’s legitimacy on the African continent. If African States remain distrustful of the Court and its work, they can make the ICC’s life very difficult during the investigation stage of a case. Just recently media reports have indicated that the investigation into the Banda and Jerbo case has been hampered by the lack of cooperation by the government of Sudan. Specifically, Sudan “has barred ICC personnel from speaking to Sudanese officials, has expelled NGOs accused of collaborating with the ICC, and has criminalized cooperation with the Court. It is clear that the Court cannot make progress in such situations when faced with such drawbacks. Both the Court and national jurisdictions should be involved in a ‘give and take’ process. For the principle to function optimally, both will have to make concessions. African States should, apart from finding ways of promoting the Courts work on their respective territories, include ways to incorporate fair trial standards into their domestic legislation.  For the ICC it should be allowing more leeway for national investigation and prosecutions to take place even if they are restorative in nature. They should not be readily dismissed on face value. This would mean, that the Court will have to become more sensitive, to elements of African culture in general, if it to secure the trust of African States and if it to be perceived as legitimate in Africa.

Posted by Ingrid Roestenburg-Morgan

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