Introduction

The coming into force of the International Criminal Court (ICC) opened new possibilities for the promise of a global justice institution and, with it, a new lexicon of ‘complementarity’.Footnote ¹ Broadly defined, ‘complementarity’ means that the ICC should be a court of last resort: it intervenes where a responsible state is either unwilling or unable to investigate and prosecute crimes of war, genocide and crimes against humanity committed within its jurisdiction.Footnote ² In a strictly legal sense, complementarity operates as a principle of admissibility, limiting the situations and cases that may appear before the ICC.Footnote ³ In practice, however, and in the name of complementarity, the ICC has become an international crimes policeman: a key player in many conflicts, post-conflicts and transitional contexts where serious international crimes are suspected, especially within Africa.

Indeed, complementarity, or ‘positive’ complementarity as it is often called, has been broadly interpreted to mean all manner of productive developments attributable to The Hague-based Court: catalysing judicial norms, legal trainings, local trials, outreach initiatives, legal reforms, peace agreements and even regime change.Footnote ⁴ Yet the ICC and its proponents in different situations provide little recourse or accountability where its interventions, ostensibly made in the name of impartiality, have the practical effect of condoning impunity.Footnote ⁵ This may happen either indirectly or directly, when complementary gets hijacked in the service of other objectives, or when it undermines other forms of much-needed social and political accountability.Footnote ⁶

This chapter discusses problematic aspects of complementarity within the context of Uganda. Drawing upon my extensive experience working for the Refugee Law Project (RLP), a civil society organisation with a long-term presence in northern Uganda, and my role as a member of the defence team for Thomas Kwoyelo, the first defendant brought before Uganda’s domestic war crimes court, I consider in this chapter some of the domestic effects of the ICC’s intervention.Footnote ⁷ This chapter places the ICC’s intervention in the broader context of an over two-decade-long civil war between the Lord’s Resistance Army (LRA) and the Ugandan government in order to consider its impact on subsequent political solutions and domestic transitional justice processes.Footnote ⁸ Furthermore, by examining Uganda’s first domestic war crimes trial, which has been hailed by many ICC advocates and international donors as an example of the positive impact of complementarity, the chapter explores how states and interest groups can marshal, or even hijack, international and domestic accountability processes, while in fact perpetuating other forms of impunity.Footnote ⁹

The chapter ultimately argues that understanding the broader implications of the Court’s work requires viewing it in relation to domestic transitional initiatives, political factors and the work of other actors in the Ugandan context. In so doing, it first offers a broad historical background for understanding the ICC’s impact in Uganda, including the place of amnesty in the country’s approach to transitional justice and the Juba peace process. The chapter then considers the trial of Kwoyelo in greater detail, before reflecting on its broader effects on Uganda’s transitional justice discourse and the influence of the ICC in that regard. My intention here is not to discredit the ICC as an institution, but rather to contribute to its development by exposing what were, in my view, mistakes the Court has made in Uganda, in the hope of influencing future investigations and prosecutorial strategies.

The ICC in Uganda

Uganda was amongst the first African countries to ratify the Rome Statute. In 2003 it also became the first country to come before the ICC when President Yoweri Museveni referred the situation concerning the LRA to the Court (later renamed the ‘situation in northern Uganda’), arguing that because the LRA was operating mainly from Sudan, Uganda lacked the ability to arrest and prosecute the perpetrators, even though the state itself appeared to be able and willing. As it turned out later, there is in fact evidence that the then prosecutor, Luis Moreno-Ocampo, had earlier requested Uganda to refer the situation in the north to the Court.Footnote ¹⁰ This was followed by several discussions within Uganda and with ICC officials on what such a referral would mean in practice.

Prior to the referral, a key concern to the government was the role of its soldiers in the atrocities committed, including its failure to protect children and civilians abducted by the LRA and the creation of camps for internally displaced persons as a military strategy, an act prohibited under international law.Footnote ¹¹ As has been well documented, these camps almost decimated the Acholi ethnic group, from which Joseph Kony, the LRA leader, hailed, and within whose territory the war was fought longest and in its most brutal form.Footnote ¹²

The circumstances of the ICC’s referral resulted in political consequences bearing upon who would be investigated and subjected to arrest warrants. Even before investigations were conducted, it was clear that only a few key perpetrators would be sought by the ICC, and that state actors within Uganda may never find themselves before the Court for their own role in the atrocities that were committed.Footnote ¹³

In July 2004, the ICC prosecutor launched formal investigations. The OTP soon found evidence of war crimes and crimes against humanity committed by the LRA, and in October 2005, the Court unsealed warrants of arrest against five top LRA commanders for war crimes and crimes against humanity: Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen, the latter of whom was apprehended and surrendered to the ICC in early 2015.Footnote ¹⁴ During its investigations, the OTP was accused of turning a blind eye to atrocities committed by government forces.Footnote ¹⁵ In fact, ICC investigators were accompanied by state agents on their missions, including operatives of the Chieftaincy of Military Intelligence, a special investigative unit of the Uganda People’s Defence Force (UPDF), known for its high-handed methods of ‘investigation’, including torturing suspects and holding them in ‘safe houses’.Footnote ¹⁶

From the beginning, the Court’s intervention faced opposition from victims groups, conflict-affected communities and much of Ugandan civil society, with the notable exceptions of victims directly supported by the ICC Trust Fund for Victims and NGOs funded by pro-ICC donors. The unsealing of the arrest warrants caused particular controversy as they came amidst promising peace talks between the Ugandan government and the LRA, under the mediation of the former vice president of South Sudan, Dr Riek Macher. The timing of the ICC’s intervention thus drew criticism and re-ignited the long-standing ‘peace versus justice’ debate, as well as contention over the meaning of complementarity.Footnote ¹⁷

This debate, which centred on how to foster legal accountability for crimes without further escalating the costs of war, was unfortunately portrayed as a contest between Western conceptions of punitive justice versus African understandings of restorative justice. As an organisation, RLP sought to decry the simplistic manner in which many Western academics and practitioners were framing the issue.Footnote ¹⁸ Some commentators viewed the Ugandan situation rather simplistically, as a contest between amnesty and justice, yet, such a view neglects the fact that ‘justice’ is a highly contextual norm; depending on how it is perceived, amnesty could in fact be the form of justice sought by conflict-affected communities in situations like northern Uganda, a conflict characterised by mass abductions, lack of civilian protection and an attendant humanitarian catastrophe.Footnote ¹⁹ As the following section illustrates, the conflict between the LRA and the Ugandan government involved the commission of atrocities on both sides, whereas the ICC’s intervention has, to date, furthered a narrow and one-sided interpretation of the conflict.

The LRA conflict

The LRA is a rebel group that has fought the government of President Museveni since he captured power in 1986.Footnote ²⁰ Spanning twenty-nine years, the group operated largely in northern Uganda (Acholi and Lango sub-regions) until 2006, when it crossed briefly into Teso sub-regionFootnote ²¹ in 2003 following ‘Operation Iron Fist’.Footnote ²² To date, the LRA continues to abduct children and displace civilians in some parts of the Central African Republic (CAR), Democratic Republic of Congo (DRC), and occasionally South Sudan.Footnote ²³ Alleged members of the LRA are accused of committing serious crimes including widespread abductions, mass killings, arson, forceful enslavement and mutilations.

In fighting the LRA, however, the government’s counter-insurgency strategy resulted in over 1.8 million civilians being moved into squalid camps for internally displaced persons (IDPs), with barely any protection provided against the LRA’s ongoing insurgency.Footnote ²⁴ This has had catastrophic effects on the culture and morale of the people and created one of the world’s worst humanitarian situations. Indeed, it is estimated that more people died as a result of the unbearable conditions living in IDP camps than from direct-armed violence.Footnote ²⁵ For the LRA, the IDP camps became a one-stop abduction point: to replenish its fighting forces, it simply raided one of the (un)protected camps.Footnote ²⁶

There is still no official inquiry or acknowledgement of the cost in terms of human lives; however, estimates are well over one million deaths and between 30,000 to 66,000 abductees, approximately half of whom were under the age of 18,Footnote ²⁷ and less than half of whom have returned or been accounted for.Footnote ²⁸ Moreover, the UPDF, which was mandated to protect Ugandan civilians, sometimes turned its guns on them on suspicion of collaborating with ‘the enemy’.Footnote ²⁹ The UPDF raided people’s cattle, raped women, destroyed properties and tortured thousands during its counter-insurgency operations. Several hundreds of civilians were caught in the crossfire and many lives were lost in places like Alero, Awach, Mukura, NamukoraFootnote ³⁰ and Buu Coro.Footnote ³¹

Conflict-affected communities therefore apportion responsibility to both the LRA and the UPDF for atrocities committed. A 2007 survey on victims’ perceptions of justice and accountability following the conflict found that a majority of respondents blamed the government and demanded accountability for both the LRA and the UPDF in equal measure.Footnote ³² The government was also accused of contributing to the length of the war, through aiding and abetting its continuation for political and economic motives. Politically, the war was important to destroy National Resistance Army/Movement (NRM)Footnote ³³ opposition from the north, consolidate the government’s power bases in the west and other parts of the country and destroy what Museveni called the Acholi’s chauvinisms. The government further used the conflict as an excuse to bloat the army’s budget and avoid scrutiny. Indeed, it received large sums of money and military support from the international community to fight the war; as a result, it had little interest in ending it.Footnote ³⁴ At the height of the war, the army payrolls were filled with ghost soldiers and their salaries were diverted.Footnote ³⁵

A legacy of violence

Beyond the LRA, Uganda has also endured years of conflict and gross human rights violations dating back to colonial times, pre-independence struggles and certainly the better half of the years since attaining political independence.Footnote ³⁶ The country remains highly divided, with a weak sense of national identity, low solidarity amongst local constituencies, a lack of information and transparency about historical events and little accountability for past wrongdoing. Previous attempts yielded little, including two commissions of enquiries in the early 1970s and 1980s. The work of both commissions was hampered by numerous challenges, and their recommendations were seldom implemented.

Furthermore, the Ugandan state is characteristically oppressive, corrupt, nepotistic and intolerant to alternative groups and dissenting opinions.Footnote ³⁷ In the past fifty years, eight different presidents have ruled Uganda and the country has yet to witness a peaceful transfer of power from one to another. The legacy of these episodes of coups and associated violence is a country deeply divided along ethnic lines, in which one’s ethnicity inherently defines one’s access to power, sense of belonging and opportunities in life. As a result, large sections of the population feel permanently victimised and marginalised.Footnote ³⁸

Sadly, however, the ongoing transitional justice debate within Uganda remains largely premised on the LRA violations and focused on ‘complementing’ international responses, as opposed to addressing the country’s broader conflict legacies.Footnote ³⁹ RLP’s efforts to map and document the key transitional justice issues in Uganda from the perspective of victims and affected communities – as part of a national reconciliation and transitional justice ‘audit’ – documented over forty-four armed conflicts and more than 125 other violent conflicts in Uganda.Footnote ⁴⁰ These conflicts have affected different parts of the country and, if they remain unaddressed, will continue to have negative impacts on the future. The majority of these grievances fall outside the jurisdiction of the ICC and cannot be addressed by courts, yet no effort is being made to address them in the current national discourse.

The RLP’s National Reconciliation and Transitional Justice Audit also revealed that, when it comes to dealing with legacies of violence, ‘expertise’ resides in every corner of the country. This means that rather than a top-down approach, ‘positive complementarity’ should require international justice systems to learn from local actors and mechanisms. As Chris Dolan has observed, ‘When it comes to understanding the structural underpinnings of violence, ordinary citizens are the match of international experts, and when it comes to connecting the dots between poverty, violence and the form that justice needs to take if it is to deliver sustainable peace, they readily outstrip the mainstream policy debate.’Footnote ⁴¹ With complementarity in Uganda, however, it is the reverse: complementarity has been (mis)understood as copying international standards and practices and pasting them into the Ugandan context.

As a result, international ‘experts’ with limited in-country experience have replaced local chiefs in the ‘traditional justice component’ of the transitional justice policy debate. Moreover, as discussed further below, these ‘experts’ were appointed, seconded or compensated by pro-ICC donors to advise the Ugandan government’s transitional justice processes in order to promote complementarity, a practice first developed during the peace talks in Juba, and which ultimately contributed to their failure.

The Juba peace process

In 2006, the LRA and the government again entered into peace negotiations in Juba, this time with much brighter prospects following the signing of the Comprehensive Peace Agreement in Sudan and the establishment of a semi-autonomous government in the south.Footnote ⁴² With ICC arrest warrants hanging over the top leadership of the LRA, complementarity soon took centre stage in the process. Fearing that the Court’s warrants might pose a major obstacle to the talks, the Acholi Religious Leaders Peace Initiative – joined by RLP, other civil society organisations, victims groups and local leaders from the war-affected sub-regions – appealed to the ICC to suspend its warrants for at least one year to facilitate the talks. The Ugandan government also requested the ICC to defer the LRA warrants to enable it to handle the matter domestically, as it saw a peace dividend resulting from the LRA’s withdrawal from northern Uganda into southern Sudan’s border with the DRC.Footnote ⁴³

The ICC prosecutor rejected the request, however, given the importance of the cases to the Court, but also because the international attention focused on the peace process likely gave it a platform for establishing its international reputation as a mechanism of ‘global justice’. Seizing the opportunity, Prosecutor Moreno-Ocampo repeatedly made public statements dismissing the requests for withdrawal, and reminding the Ugandan government of its commitment to cooperation by arresting and handing over the LRA leaders.

This contemptuous attitude continued throughout the peace talks, often drawing anger from conflict-affected communities and local leaders. Many domestic actors regarded the Court as a ‘peace spoiler’. Norbert Mao, the Gulu district chairman at the time, repeatedly criticised the ICC’s indifference to the plights of the IDPs, and appearing at a local radio station one morning, he publicly announced the vehicle number plate of an ICC outreach vehicle in Uganda.Footnote ⁴⁴ Coupled with limited outreach and knowledge of the ICC, the local communities in LRA-affected areas initially thought the Court was just a single man: Luis Moreno-Ocampo. Indeed, a story is told of how, when the ICC outreach office in Uganda went for a meeting in a remote part of Gulu (now Amuru District), an old man carrying an axe stormed the meeting asking, ‘Where is this ICC man stopping our abducted children from coming home?’ He was wrestled down by local authorities and security agents and calmed down after learning that the ICC was, in fact, a Court and that these were just its Uganda-based employees who were trying to educate people about its work. Such hostilities towards the Court continued throughout the peace process.

Nevertheless, the peace talks continued and all of the agreed agenda items for discussion were ultimately passed: cessation of hostilities; comprehensive solutions to the conflict; accountability and reconciliation; and permanent ceasefire and disarmament, demobilisation and reintegration. While the first two agenda items were quickly agreed upon, observers predicted that the third agenda item – accountability and reconciliation – would be the key sticking point. Many feared that the LRA would not accept any form of criminal sanctions, which was understood to be mandatory for the ICC complementarity test to be satisfied.

In fact, there was a legal amnesty in place within Uganda since 2000, which all LRA combatants were entitled to upon renouncing rebellion against the government. But a few legal experts advising the Juba process (and paid by Western governments financing the talks) were tasked with crafting a ‘complementary’ domestic transitional justice framework acceptable to both the ICC and the LRA. To many people’s surprise, the accountability and reconciliation agenda was quickly discussed and concluded, embracing a range of formal and non-formal accountability and reconciliation measures. According to Haruna Ndema, a peace delegate who represented the LRA in Juba, when the draft text of the principal agreement was presented to Kony and Otti, they both welcomed it and demanded that any domestic trial process should be credible, and should involve both LRA and government forces.Footnote ⁴⁵

In the principal accountability and reconciliation agreement, both parties acknowledged for the first time that they had committed atrocities in the course of the conflict. The LRA demanded accountability and reconciliation, but the government rejected this position on the basis that the LRA was entitled to amnesty and the UPDF had its own ‘accountability system’ laid out in the country’s domestic military code. Contrary to many predictions, this became the sticking point in Juba: whether the UPDF and other state actors should be subjected to the special accountability measures envisaged under the draft agreement.

After protracted negotiations, the parties signed the Agreement on Accountability and Reconciliation (AAR) in June 2007. It provided, in part, that, ‘Formal criminal and civil justice measures shall be applied to any individual who is alleged to have committed serious crimes or human rights violations in the course of the conflict. Provided that, state actors shall be subjected to existing criminal justice processes and not to special justice processes under this Agreement.’Footnote ⁴⁶ It also added that traditional justice principles shall constitute a central pillar in all formal and informal justice processes.Footnote ⁴⁷ After the signing, both delegations embarked on a countrywide consultation to seek Ugandans’ views on how to implement the AAR. The views expressed countrywide, and in particular by the affected communities, demanded comprehensive reparations, establishment of a national truth-seeking and reconciliation mechanism and, where needed, accountability by both state and non-state actors through specially established justice mechanisms.Footnote ⁴⁸

When talks resumed in Juba, an implementation agreement set out a comprehensive transitional justice framework for Uganda providing for the establishment of a number of mechanisms, including a body to conduct proper truth-seeking and promote truth-telling and memorialisation; a special division of the High Court of Uganda to try individuals alleged to have committed serious crimes during the conflict; and a unit for carrying out investigations and prosecutions in support of the trials and other formal proceedings. It also determined that necessary arrangements should be made for providing reparations to victims of the conflict, and it determined that traditional justice should form a central part of the AAR framework.Footnote ⁴⁹

The Juba agreements thus provided a wide-ranging template for post-conflict transitional justice that was more comprehensive than subsequent initiatives. Nevertheless, the government delegates, with instruction from Kampala, rejected any attempt to subject the UPDF to accountability, including the proposed special division of the High Court. The LRA was also given the impression at the talks that, upon signing the AAR, the ICC would be persuaded to drop its charges or suspend its arrest warrants. As a result, the LRA demanded the withdrawal of the warrants before signing the Final Peace Agreement (FPA).

Ultimately, fearing a fate not unlike that of former Liberian president Charles Taylor, the LRA leaders shunned the signing ceremony and postponed it several times without appearing. Shortly thereafter, on 14 December 2008, the government of Uganda launched coordinated military strikes (dubbed Operation ‘Lightning Thunder’) against LRA assembly points, which it carried out with intelligence gathered during the peace talks and with the backing of some Western observers. The LRA eluded the strikes and scattered into southern Sudan and the CAR, where it continues to operate as of the time of writing.

Establishment of the War Crimes/International Crimes Division

The FPA provided that, ‘A Special Division of the High Court of Uganda shall be established to try individuals who are alleged to have committed serious crimes during the conflict.’Footnote ⁵⁰ The Principal Judge of Uganda’s High Court accordingly (and quickly) established a War Crimes Division (later renamed the International Crimes Division or ICD) of the High Court of Uganda in July 2008. Four judges were immediately appointed to the WCD with support staff trained on international ‘best practices’. Following the WCD’s establishment, the Ugandan Parliament passed – on the eve of the 2010 Kampala Conference – the International Criminal Court Act (ICC Act) to domesticate the Rome Statute, and to provide for full cooperation with the ICC.

Notably, in order to pre-empt any attempt to defer ICC proceedings, the Court’s Pre-Trial Chamber sought, proprio motu, to determine whether the creation of the domestic war crimes court would satisfy the complementarity test. While not obliged to do so in the absence of a challenge from the Ugandan state itself, the Court ruled that the Juba framework was not yet sufficient to satisfy the Rome Statute’s requirements: ‘pending the adoption of all relevant legal texts and the implementation of all practical steps’, the cases remained admissible.Footnote ⁵¹ This decision arguably signalled to the LRA leadership that the ICC’s warrants would not be dropped or suspended, and that the domestic AAR process was unlikely to involve the UPDF or other state actors.

Although the LRA did not sign the FPA, the Ugandan government made it clear that it would fulfil its commitments and proceeded to implement the Juba agreements to the fullest extent possible. In fact, shortly before the failed signing, the government established a 15-member transitional justice technical working group within the Justice, Law and Order Sector (JLOS) in order to think through the ramifications of the peace deal. The JLOS Transitional Justice Working Group (TJWG) became a coordinating forum through which international donor support, money and influence were extended in the design and implementation of the Ugandan transitional justice agenda. While initially the RLP and the International Center for Transitional Justice, two leading transitional justice voices in the country, were invited to represent civil society at the forum, they were gradually sidelined. Instead, and again in the name of complementarity, international experts and technical assistants from abroad were preferred to support JLOS.

Amnesty Act

The practice of amnesty in Uganda is deeply rooted in cultural and religious conceptions of forgiveness and reconciliation. Before the complementarity issue was introduced, forgiveness had played an important role in conflict resolution and the socio-political transformation of Ugandan society. After attaining independence in 1962, neither the British nor their colonial agent were held to account; they were largely ‘forgiven’ for their transgressions. Indeed, throughout the political turmoil that followed independence – marred as it was by violent changes of government, liberation struggles, coups and insurgencies – amnesty and forgiveness have played a central role in Uganda. Even before the LRA’s insurgency, when Museveni’s NRM captured power in 1986, it declared amnesty for all agents of the former regimes. In 1989, the National Resistance Council enacted an amnesty statute for all armed groups fighting the government within Uganda.

But the amnesty that emerged from the government’s conflict with the LRA was unique insofar as it was the affected communities themselves, led by their religious and cultural leaders, who began to call upon the government to abandon its hard-line military approach, enact an amnesty law and negotiate with the rebels. President Museveni was initially opposed to this approach, but with international attention increasingly drawn to the worsening humanitarian situation, and with religious and cultural leaders from the Acholi mobilising victims’ demonstrations, the regime conceded and tabled an amnesty bill in parliament.

The Parliament of Uganda passed the Amnesty Act in 2000. The act provided amnesty for any person or group who had been fighting the government since January 1986 and was conditional only upon their renouncing rebellion. The act was aimed at ceasing hostilities, encouraging defections and finding a peaceful resolution to the conflict. According to the Honourable Dick Nyai, a former legislator who was part of the drafting process, the act was one of the most popular enactments at the time.Footnote ⁵² Initially, the Amnesty Act was only meant to last for six months, but it has been extended several times – most recently in 2012 – in light of its contributions to the peace process. Since its passage, well over 27,000 combatants from over twenty-eight different armed groups have renounced rebellion and benefitted from the process. Only about half of those amnestied were from the LRA.

With the ICC’s intervention, however, the Amnesty Act soon came under scrutiny. The pro-ICC lobby in the country condemned the law without appreciating its uniqueness. Although there are clear conditions within the law that must be fulfilled before one can be granted amnesty, the law was demonised as promoting impunity by providing unconditional, or ‘blanket’, amnesty. To receive amnesty in Uganda one must renounce rebellion and not be a second-time offender. Furthermore, a 2006 amendment provided the Minister of Internal Affairs with powers to exclude certain individuals from amnesty.Footnote ⁵³ The amendment, however, did not specify the criteria by which individuals may not be considered eligible for amnesty, nor did it make ineligibility a legal determination. Consequently, the power to declare an individual ineligible for amnesty remained at the political discretion of the minister and parliament.

Because of the popularity of the law, it is worth noting that the anti-amnesty debate in Uganda has, until recently, largely been academic: the anti-amnesty group could hardly face the general population, particularly in the north of the country.Footnote ⁵⁴ Indeed, because of amnesty’s popularity within Acholiland, most anti-amnesty consultations were conducted outside the sub-region; when Acholis were invited, representatives were carefully selected. The ICC Act also reflects this fact: even with principles that would arguably contradict some provisions of the Amnesty Act, repeal of the legislation was not even contemplated.Footnote ⁵⁵ Notably, however, when the Constitutional Court halted the ICD’s celebrated ‘complementarity’ trial of former LRA colonel Thomas Kwoyelo in 2011, pro-ICC groups did attempt to dismantle the act. The following section turns to Kwoyelo’s trial.

The trial of Thomas Kwoyelo

In July 2011, Colonel Thomas Kwoyelo, a former LRA fighter and child soldier who himself had been abducted, became the first war crimes suspect to face trial before Uganda’s renamed ICD.Footnote ⁵⁶ Kwoyelo, forty years old at the time, pleaded not guilty to the 12 initial counts of war crimes and an additional fifty-three alternative charges (included in an amended charge sheet) that alleged kidnap with intent to murder, wilful killing, attack on civilian villages and aggravated robberies under Uganda’s Penal Code Act and the Geneva Conventions.Footnote ⁵⁷ No charge was brought under the ICC Act of 2010 because all the crimes Kwoyelo allegedly committed took place before that legislation came into force.

It was alleged that Kwoyelo ‘committed his offences in the context of an international armed conflict that existed in northern Uganda, southern Sudan and north-eastern Democratic Republic of Congo between the LRA (with the support of and under the control of the government of Sudan), fighting against the government of the Republic of Uganda as by law established, between 1987 and 2008’.Footnote ⁵⁸ According to the indictment, all attacks by the LRA – which took place in Kilak County, Amuru District, between 1987 and 2005 – were either commanded by Kwoyelo or were carried out with his full knowledge and authority. It further alleged that all property and persons were protected under the Fourth Geneva Convention and that Kwoyelo was aware of the factual circumstances that established such protected status.Footnote ⁵⁹ Kwoyelo’s indictment also contained allegations of murdering Alfred Bongomin, a prominent pro-government operative whose murder had previously been blamed on two senior opposition politicians from northern Uganda.Footnote ⁶⁰

While Kwoyelo’s trial is the closest Uganda has yet come to testing complementarity in terms of an actual criminal proceeding, it stalled from the beginning. His legal team raised several legal questions in the first instance, such as whether the armed conflict between the LRA and the government of Uganda qualified as an international armed conflict under the Geneva Conventions, about the alleged torture of war crimes suspects during investigationsFootnote ⁶¹ and about the criminal liability of a victim-turned perpetrator.Footnote ⁶² The central question however – whether Kwoyelo was entitled to amnesty, and whether the Amnesty Act itself was constitutional – effectively removed Kwoyelo’s case from the ICD’s jurisdiction. In fact, for all the preparation and financial commitments made to the court, the ICD only had three sessions with Kwoyelo. It never had the opportunity to hear any witnesses or to interrogate the merits of the government’s accusations. It only dealt with preliminary legal objections and then a request by the defence for referral to Uganda’s Constitutional Court on the question of amnesty, which the ICD granted.

In November 2011, the Constitutional Court halted Kwoyelo’s trial on the grounds that it was unconstitutional.Footnote ⁶³ The court ruled that Kwoyelo had applied for amnesty, which he was entitled to under the law. In a unanimous judgment, the court said that the Amnesty Act was constitutional and that Kwoyelo was entitled to its benefits. The court further held that Uganda’s amnesty was unique from other amnesties given the circumstances of its enactment, and that it was not, in fact, a blanket amnesty, as it excluded state actors who committed atrocities and required applicants to renounce rebellion. The court further found that by initially refusing to grant an amnesty certificate to Kwoyelo, the Director of Public Prosecutions (DPP) had denied Kwoyelo equal treatment and protection under the law. Kwoyelo’s trial was to be stopped immediately and his file returned to the ICD ‘with a direction that it must cease the trial of the applicant forthwith’.Footnote ⁶⁴

In response, JLOS quickly issued a public statement that was critical of the Constitutional Court’s decision.Footnote ⁶⁵ The DPP also issued a public statement rejecting the ruling and vowing not to implement the court’s order. Key players in the transitional justice project in Uganda were disappointed, as it seemed that JLOS was undermining the very rule of law it was mandated to promote. As with all public matters where the president’s official position is not known, different government officials were reluctant to comment on the court’s verdict; where they did, they issued contradicting statements with few commitments. The ICD judges, however, complied with the Constitutional Court’s decision and halted Kwoyelo’s trial, with the directive that he should be issued an amnesty and released.

When Kwoyelo applied for execution of the court order, the attorney general controversially filed a late appeal to the Supreme Court (a higher appellate court), challenging the Constitutional Court’s decision. At the time, however, the Supreme Court had no quorum, meaning that it could not hear the appeal and that it would take another year before Kwoyelo’s case could be heard. The Ugandan Supreme Court stayed the Constitutional Court’s ruling in March 2012. Kwoyelo’s lawyers applied to the Court of Appeal for bail, an interim remedy to safeguard his liberty as he awaited the Supreme Court’s decision. He argued that since the Constitutional Court had found in his favour, he stood a better chance of prevailing at the Supreme Court, and thus was entitled to bail, pending the outcome. The Court of Appeal agreed and ordered that Kwoyelo be released on bail. Again the DPP ignored the ruling,Footnote ⁶⁶ thus forcing Kwoyelo to apply to the High Court for a writ of mandamus, ordering the DPP to perform its duty as a public officer.

In a dramatic turn of events, the Supreme Court convened a special one-hour sitting (without a quorum) to hear the attorney general’s request to stay the orders of the lower courts ordering Kwoyelo’s release. Led by Chief Justice Benjamin OdokiFootnote ⁶⁷ the court heard the appeal, which it granted without any deliberations. In October 2012, Kwoyelo petitioned the African Commission on Human and Peoples’ Rights, challenging his continued detention as arbitrary and as a violation of his right to be free of arbitrary detention.Footnote ⁶⁸ Meanwhile, the appeal against the Constitutional Court’s decision on the Amnesty Act was heard before the Supreme Court in April 2014. One year later, in the first judicial determination of an individual’s ineligibility for amnesty in Uganda, the Supreme Court overturned the Constitutional Court’s decision, bringing Kwoyelo’s case back before the ICD to begin again.Footnote ⁶⁹

Uganda’s justice dilemmas: the ‘Shadow’ of the ICC and Thomas Kwoyelo

Kwoyelo’s trial highlights the extent to which the discourse of justice-as-accountability has come to dominate the Ugandan context, as well as its attendant political pressures. From the beginning, the trial was characterised by international support and domestic opposition. When Kwoyelo was first captured, he was held by Ugandan military intelligence for almost six months in secret detention. He was then charged with murder in the Chief Magistrate Courts at Buganda Road and committed to the High Court. At this stage, the ICD had not been fully established; however, pro-ICC groups and several international human rights agencies were lobbying the Ugandan government and JLOS to delay his trial until the court was ready. In this sense, JLOS used the bait of Kwoyelo’s custody to lobby financial support in support of the ICD.

JLOS received significant donor money in support of expediting the trial and, with it, pressure to abandon its earlier roadmap towards a more comprehensive transitional justice process. The sector secured over UGX 400 m (US$160,000) to initiate the Kwoyelo trial alone.Footnote ⁷⁰ Before its focus shifted exclusively to prosecution and its financial dividend, JLOS TJWG had set up a robust and highly inclusive technical sub-committee to study and advise the government on the development of an appropriate and comprehensive transitional justice framework for Uganda.Footnote ⁷¹ The four thematic sub-committees comprised: formal criminal justice; truth-seeking; traditional justice and integrated justice committees. A number of civil society actors, including RLP, had researched and engaged victim communities and consulted widely on key issues to be addressed in such a comprehensive framework. JLOS had even conducted its own consultations around the country, the findings of which validated previous civil society reports.Footnote ⁷²

Initially, there was a strong working relationship between the TJWG and civil society; at this time, Justice James Ogoola was in charge as principal judge. Indeed, the TJWG had initially agreed that the proposed civil society draft of a National Reconciliation Bill and the International Criminal Court Bill (then of 2009) would both be presented together before parliament, in order to generate a comprehensive national discussion on Uganda’s justice needs. Both draft laws were discussed with JLOS and key stakeholders, including a training of parliamentarians on the laws conducted by RLP, under its Beyond Juba Project.Footnote ⁷³ The National Reconciliation Bill was likewise reviewed by Justice James Ogoola and a number of JLOS officials. The bill was officially handed over to JLOS with a promise that both laws would be submitted to cabinet.

When JLOS approached its funders, however, to conduct a national consultation on the bills before their submission to cabinet, donor governments supporting JLOS – who were strongly in favour of the ICC and similar accountability efforts – made it clear that they would not fund the process if it included the National Reconciliation Bill. To them, it was important for JLOS to fast-track the ICC legislation – in part to enable Uganda to win its bid to host the ICC Review Conference in 2010Footnote ⁷⁴ – and to prosecute Kwoyelo. International lawyers from an international legal consulting group were even flown in to help JLOS enact such a law, despite their lack of familiarity with Uganda’s legal terrain.Footnote ⁷⁵ As a result, the ICC Act that passed in 2010 was rushed through parliament with little consultation and without much-needed acknowledgment of the domestic legal reality, given the existence of the Amnesty Act. Nevertheless, pro-ICC groups and lobbyists celebrated it as a step towards complementarity.

Furthermore, to the ICC’s advocates, Kwoyelo’s trial was an example of putting complementarity ‘into practice’. Little attention was thus paid to the politics, procedure or merits of the case. Internationally, an indictment for war crimes appears to erode the presumption of innocence, at least in the court of public opinion. Indeed, prosecutors and sometimes judges play more to public opinion and political interests than to the merits of a case, or even to the applicable law.Footnote ⁷⁶ In Kwoyelo’s case, even before the case had commenced, a sitting judge within the ICD, Judge Anup Singh Choudry, issued a letter condemning the planned trial as unconstitutional and as a perversion of justice.Footnote ⁷⁷ He alleged that the trial was a mere sham given that the bench had been briefed and directed on how long the trial should last, as well as on the expected verdict.

The challenge for JLOS from the beginning was institutional. As a donor organ pioneered by a consortium of donor agencies, its role was to strengthen the rule of law by coordinating actors within the ‘access to justice’ chain. JLOS’s understanding of transitional justice was limited to prosecution, however, and many of the advisors recruited to advise JLOS had only learned of ‘transitional justice’ because Justice Ogoola played a key role in the establishment of the (then) WCD. (RLP’s interactions with JLOS insiders during the TJWG meetings also revealed that many had little to no knowledge of the contents of the other Juba peace agreements.) As a result, to many JLOS actors, the end of Kwoyelo’s trial was understood as signifying an end to transitional justice in Uganda.

From amnesty to ‘accountability’

Nowhere were tensions with JLOS more acute than over the Amnesty Act, as that was the basis on which Kwoyelo’s trial had been stopped. Led by JLOS – with financial and ideological backing from UN Women and the UN Office of the High Commission of Human Rights, and in coordination with several local organisations in the Lango and Teso sub-regions – Kwoyelo’s proceedings thus dovetailed with the development of a new narrative against amnesty, one that presented it as unfair to ‘innocent’ civilian abductees as compared to those who were conscripted into the LRA. While this narrative was pushed heavily by JLOS, it reflected the donor agenda of many pro-ICC international actors.

Tensions over the act came to a head within government in early 2012, when the media reported that Jacob Oulanyah, the Deputy Speaker of Parliament, announced in Gulu that the Honourable Hilary Onek, then Minister of Internal Affairs, had extended the amnesty for another two years. This came as a shock to JLOS, and was again understood as symbolising an end to transitional justice in Uganda (rather than functioning as part of it). When JLOS read the news, it asked then Chief Justice Odoki – who was also Chair of the JLOS Leadership Committee – that Part II of the act be terminated, as a way to bring pressure on Minister Onek. The chief justice (who, as noted, was also the head of the Supreme Court before whom Kwoyelo’s appeal was then pending) called Minister Onek and instructed him not to gazette the law he had apparently signed. According to Onek, the chief justice told him that the Amnesty Act was unconstitutional and that he and the attorney general had agreed that only those parts of the law concerning reintegration should be extended.Footnote ⁷⁸ A few days later, a revised statutory instrument was gazetted, extending only part of the law and lapsing the most important provision: Part II, which provided for the grant of amnesty.

The lapsing of Part II angered many victims and leaders from the conflict-affected sub-regions in northern Uganda. Local leaders and civil society actors petitioned the Speaker of Parliament, condemning the illegal and unconstitutional manner in which the amnesty provision had been removed and demanding its reinstatement. Under the act, the decision to renew or lapse any part of the law is clearly at the discretion of the minister, not the chief justice or attorney general.Footnote ⁷⁹

The Speaker referred the matter to the Defence and Internal Affairs Committee to consult with the various stakeholders and report on its conclusions and recommendations. With support from Barney Afako – a well-known human rights lawyer who had advised the Juba peace process and was himself instrumental in drafting the 2000 act – and RLP, the committee conducted extensive consultations with all key stakeholders in the conflict-afflicted sub-regions, including the UPDF and victims groups. All of the groups were strongly in favour of reinstating the law. According to the committee chairperson, only JLOS and a few international NGOs and pro-ICC donors were against the reinstatement.Footnote ⁸⁰

Ultimately, in its report to the Parliament, the committee recommended immediate reinstatement of the law. This recommendation was debated and unanimously adopted. In May 2013, the full Amnesty Act was reinstated by Parliament, a move many victims groups and civil society actors welcomed, and that again drew harsh criticism from JLOS and other pro-ICC partners.Footnote ⁸¹ Unfortunately, those who advocated for the reinstatement of the law were branded as ‘pro-impunity’ groups.Footnote ⁸²

Conclusion

Although the LRA is just one of several armed groups to have fought President Museveni’s government, with untold legacies, the predominant focus of the ICC’s complementarity ‘work’ in Uganda – newly visible with the recent arrest and surrender of Dominic Ongwen to The Hague – has overshadowed larger gaps in accountability and justice. The domestication of the Rome Statute may have foregrounded international crimes like genocide and war crimes, but it changed little in terms of practical commitment.Footnote ⁸³ Instead, it jeopardised a prospective peace agreement in Juba, one that could have ended a generational conflict and brought both parties to account. The ICC’s warrants of the top LRA leadership further placed prosecution at the top of the justice agenda for northern Uganda, whereas amnesty and a preference for traditional reconciliation rituals had previously held sway. The ICD became popular and received large sums of money, given the widespread support for domestic trials to complement the ICC.

For its part, the Ugandan government has hidden under the veil of complementarity to prosecute one side to the conflict, shy away from truth-seeking, deny immediate reparatory measures to victims and avoid acknowledgement of its responsibility and needed institutional reforms. All of this has contributed to silencing a majority of the victims of Uganda’s conflicts. The ICC’s intervention, in part, has enabled this one-sided focus. For instance, the ICC outreach office in Uganda continues to organise regular trainings for local officials within Uganda. The OTP also availed its investigation file to the prosecutors in Uganda, upon which they based some of their evidence against Kwoyelo.Footnote ⁸⁴ The OTP equally provided information regarding the whereabouts of potential witnesses against Kwoyelo to Ugandan prosecutors. But even with all of this support, Kwoyelo’s case raised significant questions regarding whether Uganda was ready to prosecute international crimes and whether prosecution was even appropriate.

Finally, JLOS, largely driven by financial motives, has hijacked the transitional justice efforts initiated by civil society and survivors, excluded critical civil society voices and replaced local interest groups and stakeholders with international technical advisors and experts, all in the name of complementarity. By stigmatising the amnesty law and exploiting the opportunities within the law to craft its version of ‘positive’ complementarity, JLOS and its allies have sparked what David Oulanyah has rightly called ‘judicial instability’, to the detriment of a more comprehensive transitional justice approach.Footnote ⁸⁵ The ICC and its supporters have thus been deceived by their own narrow focus on prosecutions. They are celebrating a symbolic trial without substance, just as Ugandan transitional justice policies have been carefully calculated to condone state impunity, and to deny victims their opportunity to reckon with the country’s past in a comprehensive manner.

Introduction

I left Dakar, Senegal, in March 2001 with a heavy heart. A three-judge panel of the Cour de cassation, the highest appeal court of Senegal, had just quashed the criminal case against Hissein Habré, president of Chad from 1982 to 1990, and now living in exile in Senegal. I had been the main lawyer acting for a group of victims of the bloody repression perpetrated by agents of Habré’s government throughout his eight years in power. All had gone well until the Cour de cassation ruling. A year earlier, a Senegalese investigative judge who examined the victims’ complaint indicted Habré on several counts of torture and crimes against humanity under the UN Convention against Torture and the Senegalese penal code. On Habré’s appeal, however, the court nullified the indictment on the grounds that the Torture Convention could not be applied in Senegal in the absence of legislation determining which particular Senegalese court had jurisdiction over acts of torture committed abroad.Footnote ¹

What this legalistic interpretation meant in concrete terms was that nine years of meticulous and risky efforts by the Association des victimes des crimes de répression politique au Tchad (Chadian Association of Victims of Crimes of Political Repression) to document crimes committed by Habré’s regime were, for a time, swept away,Footnote ² ironically enough, by judges of the country that was the first in the world to ratify the Rome Statute. I returned to my country, the Democratic Republic of Congo (DRC), to devote myself to education in a small Catholic university in the north-eastern city of Butembo, which was occupied at the time by Ugandan troops.

It is in this small town and in the most unlikely circumstances that I re-discovered my faith in international justice. As I left a classroom for a break, I was approached by an old woman who wanted to know if I was the local boy who had gone on to prosecute a powerful president in a foreign land. She then handed me a bulky dossier related to the murder of her husband by the leader of a local rebel group supported by Uganda. Her daughter had told her that the local lawyer whom she had heard speaking on the radio regarding the Habré case was back and would be able to help in prosecuting the people who assassinated her husband and father. I was soon to devote a great part of my time to listening to victims of torture and parents of people killed or ‘disappeared’ by rebel and occupying forces in the DRC. I quickly realised that the faith in a vague ‘international justice’ to which all these people wanted to bring their cases was as contagious as their personal stories were painful to hear. A few months after I completed my teaching assignment, the DRC government ratified the Rome Statute, thus giving the International Criminal Court (ICC) jurisdiction over crimes like those described in the dossiers I was given in Butembo. I wondered, ‘Would the ICC fulfil the hope of the people I met in Butembo and so many across the country?’

This chapter exposes the means by which, in my view, the Court betrayed this hope. As I argue, this betrayal is largely due to a defective prosecutorial strategy: the various wrong turns taken by the Office of the Prosecutor’s (OTP) strategy in Congo could have been avoided if its first prosecutor, Luis Moreno-Ocampo, had given a more attentive ear to the numerous criticisms and to the advice that was given to him by representatives of national and international organisations who were at the outset among the Court’s most enthusiastic supporters.Footnote ³

As I argue, the failure of the OTP under Prosecutor Moreno-Ocampo’s tenure to extend such an ear resulted in a prosecutorial strategy that prioritised political expedience over thorough investigations, resulting in the pursuit of relatively ‘small fish’, frustrating a fuller accounting of the full scope of the DRC conflict, and jeopardising the OTP’s independence. Moreover, rather than strengthen domestic accountability efforts, the OTP’s investigations did them some measure of harm. The following critical analysis of the actions of the ICC in the DRC is grounded in the belief that criminal justice has an important expressive role to play – truth-telling, building a historical narrative – in the efforts to achieve political reconstruction in post-conflict societies.Footnote ⁴ While the prosecutor’s early theory of ‘positive complementarity’ contained the broad outline for such a role, he ultimately failed to apply his own theory in the context of the DRC.

A fertile ground for international justice

The conflict in Congo has gone through a succession of different phases since 1996. The first and shortest phase of the conflict lasted from November 1996 to May 1997 and was instigated by a rebel movement known as the AFDL (Alliance des forces démocratiques pour la libération du Congo) against the national army, President Mobutu’s Forces Armées Zairoises. The support the AFDL enjoyed from Ugandan and Rwandan troops gave the conflict its international dimension. It ended with the ousting of Mobutu in May 1997 and his replacement with the AFDL leader Laurent-Désiré Kabila. The second phase of the conflict started in August 1998 when Rwanda and Uganda turned their back on Kabila to support a dissident rebel movement, RCD (Rassemblement congolais pour la démocratie), and many other splinter groups, all aiming to unseat President Kabila who, for his part, received the support of troops from Angola, Namibia and Zimbabwe, in addition to creating and arming self-defence groups (the so-called Mayi-Mayi) in the RCD-controlled territories.Footnote ⁵

At the time of my return in early 2001, the DRC was thus in the throes of a long political crisis. The signing of a comprehensive peace agreement in Pretoria, South Africa, in December 2002 formally put an end to the national and international dimensions of the conflict and paved the way for a transition period led by a national unity government. However, it also resulted in more localised conflicts in eastern territories in a third and ongoing phase of the conflict that pits the government of Kinshasa against several armed groups scattered across the vast national territory.Footnote ⁶

By any measure, the violence wrought by the conflict has been devastating. All the belligerent forces, national and foreign, have indulged in brutal attacks against the civilian population. It is estimated that 5.4 million were numbered dead as the direct or indirect consequence of the war that raged from August 1998 to April 2007.Footnote ⁷ A little more than 2 million were officially recorded as dead after the signing of the agreement that formally ended the war in 2002.Footnote ⁸

In the DRC, the dichotomy between peace and justice has not played out at the same level of complexity as has been the case in other situation countries. Partly due to the excessive brutality of the war and the apparent absence of any political rationality in the belligerent’s motives, it quickly appeared to numerous Congolese that efforts to put an end to the conflict should include the establishment of justice mechanisms. But the national justice system, undermined by corruption and weakened by lack of resources, was too limited to achieve this goal. A turn to international justice mechanisms was therefore seen as necessary.

In the Ituri District, a reconciliation process at the grassroots level had started in September 2003, spearheaded by traditional leaders from the Hema and Lendu communities, whose members were most affected by the successive waves of the conflict. Most actors of these reconciliation efforts understood the need to complement and support the process with a justice component. There was strong popular support for the Programme pour la restauration rapide de la justice en Ituri (‘Program for the Urgent Restoration of the Justice System in Itruri’), a donor-supported program launched in December 2003 whose objective was to enable the criminal justice system to recover its capacity to prosecute serious crimes and thus contribute to fostering criminal accountability in Ituri.Footnote ⁹

Civil society groups across the country issued communiqués, prepared reports and held workshops in support of the idea that crimes committed in the past five to six years of civil war must be prosecuted before some kind of international tribunal. Although the concept of such a mechanism varied from organisation to organisation, there was broad agreement on the need to not leave unpunished the authors, foreign and national, of the gravest crimes of the war, including those committed before the Rome Statute’s entry into force.Footnote ¹⁰

One of the five commissions established under the Inter-Congolese Dialogue (ICD),Footnote ¹¹ the Commission on Peace and Reconciliation, was tasked with recommending measures to ensuring lasting peace within the national borders and security in the region. Members of the commission were clear about the fact that restoring lasting peace would be conditional on establishing dedicated justice mechanisms to prosecute war crimes. Their recommendations regarding the establishment of a truth and reconciliation commission and an international special tribunal for war crimes in the DRC were adopted by all 359 delegates to the ICD,Footnote ¹² rather than being referred to the upcoming transitional parliament as most ‘contentious’ recommendations were.Footnote ¹³

The transitional government formed in July 2003 engaged in an internal debate on the implementation of the recommendations of the ICD’s ‘Global and Inclusive Accord’. On 25 September 2003, the transitional government approved a decision to refer to the ICC war crimes and other international crimes committed throughout the territory of DRC and to request the creation by the UN Security Council of an international special tribunal for the DRC to deal with crimes that would fall outside the jurisdiction of the ICC.Footnote ¹⁴ Remarkably, this decision was reached by a government composed of leaders of armed groups and factions whose own conduct would be the subject of investigations by any international criminal tribunal.

Prosecutor Moreno-Ocampo deserves a great deal of credit for having actively sought a dialogue with Congolese authorities on the scope and impact of the referral. Either through direct contacts with Congolese government and judicial authorities or through consultation with a broad network of individuals and international agencies, the prosecutor sought advice and guidance on a range of issues, from the geographic scope of his investigations to their impact on the peace process and the role of national justice mechanisms. The content of the state referral was among several issues discussed with Congolese authorities. Following the decision by the transitional government on 25 September 2003, the referral was formally made in March 2004.Footnote ¹⁵

A good start: devising the theory of ‘positive complementarity’

At the outset, the then prosecutor took concrete and positive steps, demonstrating his willingness to make the best use of complementarity mechanisms provided for in the Rome Statute. Moreno-Ocampo organised the OTP so as to give complementarity issues the prominence they deserve. In addition to the Investigations and Prosecutions Divisions, he created a Jurisdiction, Complementarity and Cooperation Division (JCCD), which was given the task, among other things, to look into issues of admissibility and advise the prosecutor on the proper balance between national prosecutions and the role of the ICC. The JCCD was to foster a practical division of labour between the ICC and national courts, based on the principle of ‘a positive approach to complementarity, encouraging genuine national prosecutions wherever possible’.Footnote ¹⁶

In the DRC situation, the prosecutor envisaged a clear division of labour whereby the ICC would prosecute a handful of individuals among those bearing the greatest responsibility, while the Congolese justice system, with the support of the international community, would take on other cases. Elements of such a division of labour were outlined in the following paragraph from the letter the prosecutor sent to President Kabila to seek his referral of the situation in DRC:

The OTP’s theory of complementarity found a positive echo in the DRC as it gave concrete meaning to the national consensus achieved at the Inter-Congolese Dialogue around the need for a special international tribunal, and to the idea that a division of labour between international justice bodies and the Congolese judicial system was desirable. The highest-ranking leaders linked to the most serious crimes, including foreign nationals, would appear before international justice mechanisms, given the incapacity of the Congolese justice system to prosecute them. The Congolese justice system would use the respite gained in order to reform its internal structures as well as to prosecute people in lower-ranking positions.

Former minister of justice Ngele Masudi articulated this vision in his opening remarks at a meeting on the ICC in October 2002. Before a gathering of lawyers, law professors, senior members of the judiciary, human rights activists and representatives of civil society organisations, he indicated that the government’s strategy to address war crimes was based on the principle of complementarity, by which he meant that the DRC would leave to the ICC the task of prosecuting those in the top leadership of armed groups who bore the greatest responsibility for crimes under the ICC jurisdiction, whereas the Congolese justice system would deal with the lower-ranking perpetrators and the less-complex crimes. This was the background, Minister Ngele explained, against which the government had ordered the overhaul of the legal framework for military justice so as to give military courts jurisdiction over crimes under the Rome Statute. He added that the same rationale was the basis for the government’s request to the United Nations for the creation of a specific international criminal tribunal for the DRC.

The announcement by then prosecutor Moreno-Ocampo in June 2004 of the formal opening of investigations in the DRC seemed to reinforce the idea of an ideal division of work between the Congolese justice system and an international court. In the communiqué announcing the opening of the investigation, the prosecutor highlighted the fact that his office would focus its investigation so as to target ‘serious crimes’ committed in the DRC territory from 1 July 2002 and only those ‘people that bore the highest responsibility’ for the crimes.Footnote ¹⁸

In the following months, however, the opposite happened. At the end of what appeared to be only a cursory investigation, the Court issued arrest warrants for people hardly thought of as bearing the highest responsibility for crimes committed. Indeed, the crimes for which the prosecutor sought early convictions were not among the most serious committed in Ituri. The strategy the OTP was implementing in the DRC seemed to be moving away from the basic principles that it had previously outlined.

Targeting small fish: Thomas Lubanga

Very few among the Congolese legal community and civil society expected the ICC prosecutor to go as high up as he later did in the Sudan case. Though he was the person bearing the greatest responsibility for crimes committed in Darfur, the issuance of an arrest warrant against President Bashir was rightly criticised for its potentially adverse implications to the peace process that was taking place at the time the warrant was issued. The DRC situation was different: there was no shortage of individuals other than heads of state who bore a much greater responsibility for crimes in Ituri than those for whom the prosecutor later sought arrest warrants.

The first disillusionment came with news of Thomas Lubanga as the first person to be charged by the ICC. Lubanga was prosecuted for crimes consisting of ‘conscripting and enlisting children under the age of 15’ and forcing them ‘to participate actively in hostilities in Ituri, from September 2002 to 13 August 2003’.Footnote ¹⁹ Both the choice of individual and the crime he was charged with would irreparably damage the effectiveness of the division of labour between the Court and the Congolese justice system.

For most Congolese, Thomas Lubanga did not fit into the category of persons bearing ‘the greatest responsibility’ for the crimes committed during the second phase of the Congolese war. A mid-level actor in the conflict in Ituri, Lubanga started his criminal career as an aide to Mbusa Nyamwisi, leader of the armed group RCD-ML (Rassemblement Congolais pour la Démocratie – Mouvement de Libération), which controlled Ituri between 1999 and 2002 with the support of Uganda. A large percentage of the crimes committed in Ituri were committed by the RCD-ML, but Lubanga was only one among several ‘ministers’ in the group. Only in the beginning of 2003 did he create his own militia, the Union des Patriotes Congolais (UPC) – with the support and at the initiative of officers of the Ugandan army, the Uganda People’s Defence Force (UPDF) – although he quickly switched sides and pledged allegiance to the Rwanda Defence Force, which provided him with arms, training and operational capability for the greater part of 2003. As was the case with most of the militia in Ituri, however, the UPC’s operations were under the effective strategic control of the Ugandan army and later the Rwandan army, whose officers retained command and control of military operations, including those during which crimes were committed against the civilian population.

Moreover, many in the DRC found it deeply disturbing that, after two years of investigations, conscription of child soldiers was all that the OTP was able to point to as being among ‘the worst crimes’ committed in Ituri. Loud expressions of indignation would quickly be heard in the media and among the human rights community. Most of the journalists invited by the ICC in November 2006 to cover the Court’s hearing on the confirmation of charges against Lubanga expressed their bewilderment at the fact that Lubanga was not prosecuted for more serious crimes. It did not make sense to the Congolese media that the ICC prosecutor would identify and describe ‘the instigators of the conflict in Ituri’ and yet refrain from pursuing them. According to John Lwamba, director of the Kinshasa daily L’Echo des Grands Lacs, ‘We criticise the work of the Court for only targeting the small fish.’Footnote ²⁰

By the OTP’s own admission, it appears that the decision to prosecute Lubanga on the charges of enlisting and conscripting children under fifteen was based not on the gravity of the crime but rather on which crime investigators could quickly gather evidence on in order to secure an arrest warrant. According to a report issued weeks before Lubanga’s confirmation hearing, the OTP’s investigation of Lubanga initially included a wider range of crimes with the aim of representing a broad range of criminality.Footnote ²¹ At the same time Lubanga was the subject of another investigation in the national courts: on 19 March 2005 a Congolese military prosecutor had ordered him into preventive detention on different counts of war crimes and crimes against humanity. However, the prosecutor suddenly dropped the investigation of a wider range of crimes upon learning from the Congolese investigative magistrates that they might have to grant Lubanga’s release if by 19 March 2006 they could not gather enough evidence to charge him. The prosecutor thought it urgent to prevent such release so he decided to focus his investigation on the more manageable crime of enlisting and conscripting children under 15.Footnote ²²

In August 2006, the ICC also issued an arrest warrant against Bosco Ntaganda, former chef d’état-major général adjoint (‘Deputy Chief of the General Staff’), responsible for overseeing military operations of Thomas Lubanga’s militia, the UPC.Footnote ²³ Again, Ntaganda was charged with the same crimes as his former boss: conscription of children of less than fifteen years old, although the OTP would later add more serious charges in an additional application for warrant of arrest in 2012.Footnote ²⁴

Human rights NGOs and victims’ associations across the country began questioning the ICC’s motives. Some warned that not taking into account the most serious crimes risked the Court’s credibility in the DRC. In the months following the arrest of Thomas Lubanga and his surrender to the Court, a group of twenty-five Congolese women’s and human rights organisations met in Beni, North Kivu, to discuss the status of the ICC prosecutions in the DRC. In a strongly worded statement, these organisations expressed their ‘deep regret’ that the only charge brought against Lubanga pertained to the enlistment and conscription of child soldiers. They stressed that Lubanga’s UPC had committed ‘several other crimes falling under the jurisdiction of the ICC, of which the details have been submitted to the OTP by national and international NGOs’. More specifically, the groups thought it was the ICC’s responsibility to address ‘the widespread commission of rape and other forms of sexual violence by the UPC’. They concluded their statement with a warning that a failure to add more serious charges would result in ‘offending the victims and strengthen the growing feeling of mistrust of the work of the ICC in the DRC and of the work of the prosecutor especially’.Footnote ²⁵

The Congolese National NGO Coalition for the ICC, which claimed membership of more than a hundred leading human rights organisations, joined a group of international human rights NGOs in sending a letter to the ICC prosecutor in which they expressed their disappointment ‘that two years of investigation by your office in the DRC have not yielded a broader range of charges against Mr. Lubanga’. While acknowledging the seriousness of the charges related to enlisting of child soldiers, they cited concrete examples of the UPC’s involvement in the commission of far more serious crimes, such as the killing of 350 persons in the course of a military operation, which also resulted in the ‘complete destruction’ of more than twenty villages in February and March 2003. They also concluded that the failure to include additional charges for the most serious crimes in the case against Lubanga ‘could undermine the credibility of the ICC in the DRC’.Footnote ²⁶

A partial story: Katanga and Ngudjolo

The credibility of the ICC was indeed seriously undermined. The much more serious charges of war crimes and crimes against humanity brought against two other militia leaders of Ituri, Germain “Simba” Katanga and Mathieu “Chui” Ngudjolo, in July 2007 were too late to do much to restore the Court’s standing. Katanga and Ngudjolo were arrested and surrendered to the ICC in connection with crimes committed in the course of a brutal attack jointly launched by their respective militia on the Ituri village of Bogoro on 24 February 2003. They were eventually charged with war crimes (consisting, amongst other things, of attacks against the civilian population, intentional murders, and sexual slavery and rape) and crimes against humanity (consisting of murders, rapes and sexual enslavement).Footnote ²⁷

However, according to Godefroy Mpiana of the human rights organisation Justice Plus of Bunia, ‘the procedure [against Germain Katanga] was very delayed. The court had really spent its credit here on the ground.’Footnote ²⁸ Moreover, as with the prosecution of Lubanga, the ICC’s arrest of Ngudjolo and Katanga appeared in the eyes of many Congolese to be the result of a mix of opportunism and a public relations operation having little to do with a genuine effort to punish the leaders of crimes committed in Ituri. In particular, the fact that the case against Katanga was already before the Congolese courts, as explained below, on charges of genocide, war crimes and crimes against humanity under Congolese law, meant that its removal to the ICC had the effect of weakening national efforts at justice, while doing nothing to take on those who were their superiors.Footnote ²⁹

The commander of a small armed group, the FRPI (Forces de résistance patriotique de l’Ituri), Germain Katanga had been appointed a general of the national army of Congo in December 2004 with six other warlords from Ituri, over the protests of the victims’ organisations and the human rights activists who gave evidence of their implication in criminal acts in Ituri. Ngudjolo, meanwhile, occupied a lower post in the leadership chain of an allied group, the FNI (Front des nationalistes intégrationnistes). He had joined the Congolese army at the same time as Katanga, and was arrested by the ICC in January 2008, while attending an army officer-training course in Kinshasa.

Floribert Njabu, the president and co-founder of the FNI-FRPI, was held in a prison in Kinshasa at the time of the transfers of Katanga and Ngudjolo to the ICC, but was not himself transferred to The Hague. Even if the FNI-FRPI was a movement of lesser scale than the RCD-ML, for example, Floribert Njabu better matched the profile of ‘persons bearing the largest responsibility’ for crimes committed by this armed group than either Katanga or Ngudjolo. It was not until November 2010, after the prosecution’s case was closed, that Njabu was called to testify by the defence for Germain Katanga, along with two other militia leaders, Pierre Mbodina Iribi and Sharif Manda Ndadza, who were also in detention in Kinshasa.Footnote ³⁰

Moreover, evidence produced in the Ngudjolo and Katanga cases indicated that the governments of Uganda and the DRC, in conjunction with a larger armed group, the RCD-ML, supplied the FNI-FRPI with military support for, and jointly planned, several attacks, including the Bogoro attack in connection to which Katanga and Ngudjolo were also charged. For example, the chamber in Ngudjolo was provided extensive evidence of numerous meetings that Ngudjolo, Katanga and other FNI-FRPI leaders held with senior Congolese and Ugandan government and military leaders, including President Kabila and President Museveni and their emissaries, prior or subsequent to these attacks. Meetings with General Kale Kayihura, overall commander of the UPDF occupying forces in Ituri, were particularly detailed.Footnote ³¹ The evidence in Katanga was that the attack on Bogoro was planned in Beni by the EMOI (‘Integrated Operational Head Command’) commanding structure operated by the government of Kinshasa and the RCD-ML armed group, which provided arms and training of FNI-FRPI combatants in preparation for the attack on Bogoro.Footnote ³²

This prosecution strategy was never likely to allow the ICC to tell the full story of the conflicts in Ituri, and less still in the DRC as a whole. The relatively minor role that the individuals who have been brought to court in The Hague played in the Ituri conflict means that the OTP deliberately left the most important actors – all of the national political and military leaders in DRC, Uganda and Rwanda – in the shadows.Footnote ³³ The Court has thus been unable to place the crimes that it prosecutes in their full historical context and so fails to contribute to the uncovering of the truth. As one analyst noted, the Court deliberately chose not to respond to the following important questions: ‘Who provided the weapons? Who supported the militia leaders? Where are the political leaders that are behind these crimes?’Footnote ³⁴ By choosing not to deal with these and other similar questions, the OTP presented evidence that was so weak and incomplete that, in the words of the dissenting judge in Katanga, ‘we will never fully understand what happened on 24 February 2003 and especially who did what to whom and why’.Footnote ³⁵

The narrative that better fit this prosecutorial strategy was one that presented the conflict in Ituri as being predominantly of an ethnic nature. The OTP first worked on describing crimes committed in Ituri as the direct consequence of a deliberate policy ‘of attacking the Lendu and other non-Hema population throughout the territory of Ituri’, in order ‘to seek Hema political and military domination over Ituri’.Footnote ³⁶ Prosecutor Moreno-Ocampo then presented a situation of all-out ethnic conflict between the Hema, the Lendu and the Ngiti.Footnote ³⁷ This narrative was a distortion of history: it deliberately ignored important elements of the historical context, including the fact that the implication of the governments of the DRC, Rwanda and Uganda was motivated by the desire to control political space and natural resources.Footnote ³⁸ It left the impression that the alleged crimes were motivated only by ethnic identity and thus reinforced the Western media’s lazy and inadequate image of ‘tribal warfare’, without spending the time to learn about the political and economic causes of those wars. As Judge Christine Van den Wyngaert rightly observed in her dissenting opinion:

A one-way street: failure to support national prosecutions

The prospect of a division of labour between international and national justice and the promise of international support to the reconstruction of the national justice system were among the factors that made the ICC so attractive to most in the Congolese legal community. The October 2004 cooperation agreement between the ICC and the government of the DRC included a specific commitment for the OTP to ‘cooperate with the [Congolese] courts and provide assistance to them for … investigations, prosecutions, and any eventual trials for crimes that fall within the competent jurisdiction of the International Criminal Court’; the ICC prosecutor also committed to, ‘as far as possible, facilitate such assistance by third parties’.Footnote ⁴⁰ Immediately after the signing of the cooperation agreement, the Congolese Procureur général de la République (the chief public prosecutor) established a section in his office with a team of senior prosecutors in charge of the implementation of the cooperation mechanisms provided under the agreement.

This cooperation mechanism, however, has worked as a one-way street in favour of the ICC. While the ICC prosecutor has enjoyed unlimited access to the judicial proceedings before national courts in accordance with Article 36 of the ICC-DRC agreement, no Congolese court has been given information in the ICC’s possession relevant to crimes being prosecuted in national courts.Footnote ⁴¹ Moreover, the ICC has not provided national courts with the much-needed training in prosecution of complex mass crimes, even though national prosecutors and judicial police officers have consistently identified such training as a prerequisite for a more efficient fight against impunity.Footnote ⁴² Nor has the prosecutor’s commitment to helping with international assistance for the rebuilding of the Congolese justice system materialised.

In fact, the ICC has hindered progress towards the rebuilding of a functioning Congolese justice system by taking cases away from national courts. As an initial matter, it should be noted that the OTP began its investigations in Ituri, a region where the domestic criminal justice system was in comparably better condition than other conflict-affected regions. Indeed, the announcement by the OTP of the beginning of investigations in Ituri coincided with the piloting of donor-funded Programme pour la restauration rapide de la justice en Ituri (‘Program for the urgent restoration of the criminal justice system in Ituri’), with the aim of putting an end to impunity for serious crimes in the region. As the first ICC investigative teams were being deployed, local prosecutors supported through the program were making progress on their first prosecutions, which included cases against prominent leaders of local armed groups, among them Mathieu Ngudjolo.Footnote ⁴³

Most militia leaders currently in the ICC’s custody were being prosecuted or had been indicted by Congolese courts at the time of their transfer to the ICC. Two of them, Lubanga and Katanga, had been arrested following the murder of nine UN peacekeepers in February 2005 and charged by Congolese military prosecutors on different counts of looting, crimes against humanity and war crimes. Until his surrender to the ICC on 17 March 2006, Lubanga had been in the custody of the prosecutor of the Kinshasa Haute Cour Militaire (‘Military High Court’), the country’s highest military court, though he had not yet appeared before it. Katanga had been arrested in March 2005 and an investigative judge had opened a formal investigation file against him and seven other militiamen.Footnote ⁴⁴

During their appearance before Congolese investigative judges on 17 June 2004 and 20 January 2006, respectively, Ngudjolo and Katanga were asked specific questions in relation to crimes committed during the attack on Bogoro in 2003 – with which they were eventually charged at the ICC.Footnote ⁴⁵ Six months prior to his surrender to the ICC in October 2007, Germain Katanga had appeared before the Haute cour militaire in Kinshasa, which ruled on his application for conditional release by directing the military prosecutor to complete his investigations and bring the case to trial without further delay.Footnote ⁴⁶ Katanga was eventually transferred to the ICC before the investigative magistrate could complete his investigation. The long delay in bringing his and Lubanga’s cases to trial since they were arrested in 2005 was in part due to lack of training on the part of military investigative magistrates in investigation of complex crimes of an international nature.Footnote ⁴⁷ Nonetheless, the initial work in their cases had already been completed, enabling the ICC to take credit for bringing new cases without doing the hard graft of investigation that should have established the basis for charges.

Ngudjolo, meanwhile, had been charged with the kidnapping and murder of a UPC sympathiser in September 2003 and prosecuted before a civilian court of first instance in Ituri. His acquittal on 3 June 2004 was mainly due to the Congolese and UN security agencies’ failure to protect the prosecution’s witnesses from threats by FNI supporters, which led to the witnesses’ refusal to appear in court to give evidence.Footnote ⁴⁸

The failure of these cases to be successfully prosecuted before national courts is but one example of opportunities the OTP missed to make good use of the prosecutor’s stated vision of complementarity. Prosecutor Moreno-Ocampo could have used the cooperation and complementarity mechanisms set out in the Rome Statute and the DRC-ICC agreement to help the Congolese justice system address key obstacles to effective prosecution of war crimes in DRC: the lack of trained investigators and the lack of adequate national legislation defining the relevant crimes.Footnote ⁴⁹ Participants to the November 2004 national seminar on the reconstruction of the justice system in the DRC had hoped for such help, but it was not forthcoming.Footnote ⁵⁰

The Pre-Trial Chamber deciding on the first application for warrants of arrest against Lubanga and Ntaganda was therefore right to point out that,

Thus, the ICC simply took over the prosecution of crimes allegedly committed by these middle-level perpetrators instead of helping the Congolese judiciary address these prosecutions directly. It sent the message that individuals and institutions involved in efforts to rebuild the Congolese justice system had no reason to speed up the pace of the reforms as long as the ICC could substitute its jurisdiction for that of national courts. It was not surprising, therefore, that to justify the Court’s jurisdiction, the Congolese minister of justice (the very person in charge of implementing reforms in the justice sector) made vague reference to the ‘difficulties’ of completing investigations, without having to face questions as to the reasons for such difficulties.Footnote ⁵²

Hit-and-run investigations

The ICC’s failure to bring charges against high-ranking commanders and for the most serious crimes was also a direct result of the OTP’s strategy of conducting quick investigations with the lowest cost possible. From the outset, the OTP invested only in low-intensity and short investigations in Ituri, relying on the cooperation of the Congolese government and the UN mission in Congo, rather than on collecting direct victim testimony or using the material already collected by local NGOs for information on crimes and analysis of the cases. This system would eventually form the default operating protocol in the OTP and lead to investigative disasters elsewhere in the DRC and other countries.Footnote ⁵³

It would appear that investigations were never at the top of the ICC prosecutor’s agenda from the time of the establishment of the office. While Moreno-Ocampo devoted considerable efforts and resources in establishing the impressively bureaucratic JCCD, he also put in place administrative operations and policies that had the consequence of undermining the importance and professionalism of the Investigations Division. In December 2003, for example, the prosecutor told a group of international NGOs that the investigative teams deployed to the field would be composed almost entirely of temporary staff. It is only after strong objections from some of those NGOs and senior staff in his office that he agreed to reconsider this initial plan.Footnote ⁵⁴ Among arguments put forward to counter these initial plans was the experience of other international tribunals: expertise in field investigation and proper analysis of information and evidence, which is the foundation of a sound prosecution strategy, would not be easily obtained through lightweight, under-sized investigative teams.

However, the prosecutor did not completely back down from his vision of light-touch investigations. Although he eventually integrated permanent staff into the investigative teams in the DRC, his cost-efficient approach to investigations meant that investigators were sent to the field for short periods of time. Other elements of the strategy included the OTP’s over-reliance on indirect evidence and the absence of nationals in the investigative teams.Footnote ⁵⁵ In a 15 July 2004 meeting with NGOs, the prosecutor highlighted his vision of ‘a short and focused investigation’ aiming at eliciting ‘a limited number of witnesses’. As he explained, this investigation strategy would ‘simplify witness protection’ while furthering the OTP’s policy of seeking ‘more evidence from States, less from witnesses’ and advancing his vision of ‘short trials with few charges’. At the same meeting, he stressed other benefits of the strategy, including the fact that it would minimise the need for having local people in the investigative teams, thus helping avoid situations where impartiality is questionable.Footnote ⁵⁶

To be fair, cost efficiency was part of the agenda that major state contributors were pushing both bilaterally and through the Assembly of States Parties to the ICC, with some threatening to withhold or cut contributions unless clear cost-efficient policies were articulated by the OTP and other organs of the Court. The principle of an independent prosecutor, however, means that such efforts by states parties to the Rome Statute could only concern decisions of a non-judicial nature.Footnote ⁵⁷ Indeed, in making the case for his hit-and-run investigations policy, the prosecutor was careful not to over-emphasise the cost-efficiency argument, insisting instead on a range of other factors, such as security on the ground, quality of analysis of the situation and the value of state cooperation.

In a meeting in March 2005, for example, Moreno-Ocampo brushed aside objections from NGOs by insisting that, ‘even with a small team, we can do a good investigation’. A participant in the meeting conveyed the view that the humanitarian NGO community in Ituri blamed the slow pace of investigations on the undersized investigative teams and the short periods of time they spent on the ground. The prosecutor immediately countered that ‘the problem in DRC is not the size of the [investigative team], but that factions are killing each other and killing peacekeepers and witnesses’. He offered the situation in northern Uganda as proof that his strategy was working, since ‘in a few months, we have had a fast and efficient investigation in Uganda with a small team of twelve’.Footnote ⁵⁸

In addition to security conditions, the prosecutor also thought state cooperation was more important than the size of the investigative teams or the time they spent on the ground. ‘What we learned in comparing Uganda and Congo’, Moreno-Ocampo explained, ‘is that our life was different in Uganda because the government was more involved. We have worked longer in Congo and have less information, we need to improve cooperation [with the DRC State].’Footnote ⁵⁹ Since the DRC government and other state institutions, such as the newly integrated army, were populated with some of the individuals who potentially bore the greatest responsibility for the crimes committed in Ituri, such a strategy was a recipe for failure.

Two years into the investigation – as donor states, human rights groups and victims’ associations impatiently waited for the first cases to be brought – the cooperation with the DRC on which the OTP had relied was so poor that it could not, by the prosecutor’s own admission, elicit enough quality information on the most serious crimes committed in Ituri to bring solid charges against those most responsible. The investigative teams assigned to the Ituri situation were too undersized and too short term to generate good analysis of the intricately entangled criminal activities in this bloody part of Congo. Local NGOs and activists, who had more raw intelligence on the crimes than any other entity, were deliberately sidelined and their invaluable expertise not fully integrated into the investigative process. In such a situation the OTP was left with no other choice than to bring the most ‘manageable’ charges for the short prosecution he envisioned. Thus, to some extent, the situation was also a reaction to the growing impatience among the major states supporting the ICC, the human rights community and victims to see some movement at the Court in the form of arrests and trials.

This difficult position led to the investigators having to rely on ‘intermediaries’ for the identification of potential witnesses and the generation of contextual analysis. Much of the delay of Lubanga’s trial was due to the heated debates between the prosecution and the defence over the credibility of evidence generated through intermediaries.Footnote ⁶⁰ The Court dismissed some of the evidence produced through the intermediary system as weak and full of contradictions. In the end, therefore, what was meant to be a short and cost-effective investigations strategy ended up causing unnecessary delays and almost caused the prosecution’s case to be thrown out.

Indeed, the OTP’s case against Ngudjolo was thrown out, in part after the chamber determined that the prosecutor had failed to conduct a more thorough investigation, ‘which would have resulted in a more nuanced interpretation of certain facts, a more accurate interpretation of some of the testimonies and … an amelioration of the criteria used by the Chamber to assess the credibility of various witnesses’.Footnote ⁶¹ For example, as the chamber noted, the OTP failed to perform such basic investigative tasks as visiting the location where Ngudjolo lived and where the preparations of the attack on Bogoro allegedly took place. The prosecution was thus unable to provide the Court with such basic information as the distances between the relevant sites and the conditions of the roads, all elements that ‘would have been useful in clarifying several witness testimonies, thereby promoting a better understanding ab ovo and a more accurate assessment of the various statements’.Footnote ⁶²

Questioning the prosecution’s independence

All but one individual currently in ICC custody in relation to the conflict in the DRC are Congolese, although the crimes with which they have been charged were committed on territory that was at least partially under the military occupation of Uganda and by armed groups manipulated by the Congolese, Ugandan and Rwandan governments. President Museveni had referred the situation in the north of Uganda to the ICC only some months after Moreno-Ocampo announced his interest in investigating the crimes perpetrated in Ituri.Footnote ⁶³ The investigation of crimes committed in the Uganda-occupied district of Ituri thus unfolded during the same period as the investigation of the situation in northern Uganda, for which the OTP received the support of the Ugandan government. This support consisted, in particular, of the provision of intelligence on the Lord’s Resistance Army (LRA) by the Ugandan army, which was itself implicated in the crimes in Ituri.

It has been suggested, quite convincingly, that President Museveni used the referral to, among other objectives, confer a moral ground status to the Ugandan government, to attract international support ‘for a legitimate government, committed to international justice, fighting a hostis humani’, and to ‘make the ICC’s Prosecutor dependent on the cooperation of the Ugandan government’ so that ‘he might hesitate to jeopardize such cooperation by charging his cooperative friends with crimes committed in neighbouring DRC’.Footnote ⁶⁴ Indeed, the Ugandan government wasted little time in signalling its intention to use the credibility it had gained on matters related to international justice to influence ICC investigations in Ituri, as well as in northern Uganda. One month after the beginning of investigations in Ituri was announced, President Museveni asked for the intervention of the UN Secretary-General for the suspension of these investigations until progress in the peace process in Ituri was irreversible.Footnote ⁶⁵

The investigations in Ituri and in Uganda thus became entangled with each other by a series of linked events, which, added together, made the ICC vulnerable to the charge of political manipulation by the Ugandan authorities. For several months, the Congolese press dwelt on the idea of an ICC prosecutor who ‘across the board, has a selective vision of the facts and of who is guilty’, justifying proceedings ‘against President Bashir of Sudan, when nothing disturbs the peace enjoyed by Presidents Yoweri Museveni of Uganda and Paul Kagame of Rwanda, although both were instigators of rebellions responsible for the deaths of 6 million Congolese’.Footnote ⁶⁶

The OTP’s own strategy documents had clearly identified the risk that its efforts to secure cooperation could pose to its independence. For example, in a restatement of its policy on preliminary examinations, the OTP vowed to guard itself against the possibility that its decisions are ‘influenced or altered by the presumed or known wishes of any party, or in connection with efforts to secure cooperation’.Footnote ⁶⁷ At the same time, however, the OTP had repeatedly indicated its preference for state referral over the use of the prosecutor’s proprio motu power to initiate an investigation. This preference has been based on the assumption that a state referral is a strong indication of the state’s ‘political will to provide [the Prosecutor] with all the cooperation within the country that it is required to give under the Statute’.Footnote ⁶⁸ Having candidly anticipated the likelihood of a risk to its independence from state cooperation, it is beyond understanding that the OTP did not contemplate the possibility of a state referring a situation to the Court in order to better control the investigations by a cooperation-obsessed prosecutor.Footnote ⁶⁹ Yet, that is exactly what seems to have happened with its very first investigation.

As the prosecutor launched parallel investigations in northern Uganda and the Uganda-occupied Congolese district of Ituri, the relations between the two countries were already bad, the DRC having sued Uganda before the International Court of Justice (ICJ) for acts of armed aggression perpetrated on the DRC’s territory. The decision rendered by the ICJ made some factual findings, which should have been directly relevant to the OTP’s investigation of crimes committed in Ituri. For example, the ICJ found,

In other words, it was highly likely that the Ugandan occupying troops were involved in the planning, preparation, incitement and execution of the very crimes the OTP was investigating in Ituri. Yet not a single one of the charges brought by the OTP in relation to the situation in Ituri made reference to the ICJ decision.

There was no shortage of heinous and extremely violent incidents in Ituri from which the prosecutor could build strong cases. It appears, however, that only those incidents in which Ugandan army officers played the least decisive role were picked. This looked like a trade-off: Ugandans would be shielded from prosecution over their role in crimes committed in Ituri in exchange for their cooperation in the investigation against the LRA.

A similar dynamic drove the prosecutor’s approach in the DRC. In Ngudjolo, for example, the chamber was provided with sufficiently detailed evidence that the defendant was more clearly involved in the planning and organising of attacks on Mandro and Bunia on 4 and 6 March 2003,Footnote ⁷¹ respectively, than he was for the attack on Bogoro on 24 February 2003.Footnote ⁷² In addition, evidence of Ngudjolo’s seniority in the command structure of the FNI Lendu militia was more detailed at the time of the Mandro and Bunia attacks than it was at the time of the Bogoro attack. At first sight, therefore, the attacks on Mandro and Bunia – both of which resulted in massacres of civilians and other Rome Statute crimes – presented the OTP with much greater chances of securing Ngudjolo’s conviction than the attack on Bogoro. Yet, the OTP chose to build its case on the Bogoro attack. It was not surprising, therefore, that the chamber was later unable to establish beyond reasonable doubt that Ngudjolo ‘was one of the military commanders who held a senior position among the Lendu combatants’ at the time of the attack on Bogoro.Footnote ⁷³ It is further worth noting that while there was no strong evidence of the UPDF’s direct involvement in the attack on Bogoro, the chamber established that its participation in the 6 March 2003 attack on Bunia was uncontested.Footnote ⁷⁴

Conclusion

All good faith advocates of international justice in the DRC understood that the ICC’s intervention in Congo would have limitations and face challenges of politics, infrastructure and other obstacles. One of the greatest issues in such situations has always been the management of too high expectations among different constituencies. As this chapter has sought to illustrate, however, the DRC investigation offered the ICC a unique set of potential assets for the assertion of the young institution’s legitimacy. The Congolese legal community’s predisposition and desire to cooperate meant that the ICC had an opportunity to develop and creatively implement a doctrine of complementarity based on a positive division of labour with national courts. Faith in international justice from ordinary people like the woman who approached me as I was walking between two classrooms in Butembo meant that ICC investigators could rely on cooperation from victims and integrate their stories into the broader narrative of the crimes committed in the DRC.

Yet, the prosecutorial strategy implemented led Prosecutor Moreno-Ocampo to give priority to the views of states and the demands of international organisations over the needs of the victims. The concept of ‘positive complementarity’ has resonance in the West among the representatives of international human rights organisations. However, its implementation was frustrated by an obsession with the need to obtain the cooperation of the states where the ICC’s investigations were taking place. The idea to set up small investigation teams and to deploy them for short periods was applauded by contributing states and international agencies impatient to see the beginning of the trials. Yet the emphasis on cost saving prevented the ICC’s investigators from spending essential time with the victims and reigniting their faith in the international justice system.

Prosecutor Bensouda has signalled her intention to operate a radical reversal of this approach to investigations. Among important changes announced in the OTP’s new strategic plan are the replacement of focused investigations with in-depth, open-ended investigations; the enhancement of the OTP’s analytical capabilities, including through a set of guidelines currently being developed for NGOs wanting to assist the office in the area of investigations; the increase of its field presence wherever possible and the enhancement of complementarity and cooperation in support of national efforts under preliminary examination or investigation.Footnote ⁷⁵ These new changes were announced in October 2013, as the OTP was preparing for the confirmation of charges hearing in the case against Bosco Ntaganda, who surrendered himself to the Court in March 2013. Ntaganda’s trial will thus provide the OTP the opportunity to test its commitment to more in-depth and open-ended investigations aimed at collecting trial-ready evidence, which presents crimes committed in the DRC in a broader, more complex context than has been the case.

Introduction

A key feature of the International Criminal Court’s (ICC) intervention in Kenya has been the critical role played by civil society organisations (CSOs) in promoting accountability following the election violence of 2007–2008.Footnote ¹ Kenyan civil society has been historically known for enabling political, legislative and institutional reform.Footnote ² By way of trade unions, religious bodies and non-governmental and human rights organisations, civil society in post-independence Kenya has actively checked the excesses of the national government and provided an alternative voice where the government constrained the opposition, both in law and in practice.Footnote ³

Accountability for these violations has been particularly important in light of the continued history of electoral violence in Kenya.Footnote ⁴ This history owes to many factors, including a raft of amendments to Kenya’s Independence Constitution, which had effectively created an imperial presidency.Footnote ⁵ Politicians therefore increasingly campaigned on an ethnic platform, rallying supporters into ethnic blocs for their community’s ‘turn’ at the helm and access to resources. Those who attained power maintained the status quo using state agencies to suppress dissenting voices,Footnote ⁶ or through outsourcing violence to militia gangs of unemployed youth to terrorise the opposition.Footnote ⁷ Those who had not attained power turned to communal mobilisation of violence. A culture of impunity was thus entrenched, as ‘the beneficiaries of the violence had no incentive to give it up and every incentive to avoid the consequences of past violence by holding onto power’.Footnote ⁸

The post-election violence of 2007–2008 was a culmination of this political culture in Kenya. With the election results incredibly close, the violence was the worst on record: 1,133 persons were recorded killed, over 900 sexually violated, 650,000 physically displaced from their homes and countless others suffered grievous physical harm. Scholarly accounts have attributed the underlying causes to multiple factors, such as privatised, diffused extra-state violence; ethnic clientelist parties; and the high-stakes prize of an imperial presidency.Footnote ⁹ An uneasy calm was restored in the country following the intervention of the international community. The visit of President John Kufuor, the then Chair of the African Union, to Kenya in January 2008 resulted in the creation of a Panel of Eminent African Personalities to assist Kenyans in finding a peaceful solution to the crisis. Under the auspices of the panel, President Mwai Kibaki’s Party of National Unity (PNU) and Raila Odinga’s Orange Democratic Movement (ODM) started negotiations on 29 January 2008 through the Kenya National Dialogue and Reconciliation Committee (the KNDR or ‘National Dialogue’).Footnote ¹⁰

Owing to the international alarm caused by the nature and the magnitude of the violence, there was political will to facilitate reform for institutions and put in place transitional justice measures. However, there was little likelihood of the government establishing an accountability mechanism for the violations, and efforts to establish such a measure were strongly opposed. Human rights organisations therefore took on the multifaceted role of collecting and collating information regarding the violence for possible future legal action, generating social discourse concerning options for justice for the victims, providing civic education to the public concerning this role and even leading the accountability process once the investigation and prosecution of the violations commenced at the ICC. These actions resulted in a backlash from the Kenyan state, the latest wave of which has included legislation attempting to limit the finances of these organisations.Footnote ¹¹ The troubled history of the ICC’s intervention in Kenya is thus also one of domestic contestation between the state and CSOs.

Written from our perspective as two human rights practitioners who have been deeply engaged in the response of national-level CSOs to the ICC’s intervention, this chapter examines the different roles played by civil society leading up to and including the trial phase of the Kenyan cases before the ICC. As the chapter will illustrate, Kenyan civil society has played a vital role in the context of the ICC’s intervention, beginning with the establishment of Kenyans for Peace with Truth and Justice (KPTJ), a coalition of over thirty Kenyan and East African legal, human rights and governance organisations, that was convened in the immediate aftermath of the election debacle.Footnote ¹² Drawing upon direct experience of civil society advocacy and interviews with partner organisations, it illustrates the diverse practices of the Court’s in-country partners, as well as their political implications.

Pre-investigation period

Pre-trial period

Trial phase

Conclusion

Gross human rights violations have become increasingly normalised in Kenya, particularly during or near election periods. Typically, those who came into power have had no interest in apprehending the perpetrators because they use violence to facilitate their access to power. In seeking to destabilise this equation, and in providing essential support to the ICC’s intervention, human rights organisations have become the vanguard for justice in the country. The Kenyan government’s efforts to thwart the legitimacy and financing of these organisations are a measure of civil society’s success in this regard.

The relationship between Kenyan civil society and the ICC brings together the Court’s expertise regarding international criminal matters with the contextual knowledge of domestic advocates and practitioners. However, the relationship between the Court and its civil society partners needs further definition and refinement in ICC policies and guidelines. Lack of clarity regarding the role of intermediaries, especially during the early stages of mapping evidence and in witness protection, can damage the investigatory process, as the OTP’s cases have increasingly revealed. Indeed, Kenyan politicians have seized on this lack of clarity, suggesting that the entire investigation and witness selection processes were undertaken by CSOs. Such rhetoric produces political vulnerabilities for civil society advocates, who are now accused of acting as conduits of foreign interests. In Kenya, being the vanguard for justice has come at a price.

Introduction

The adoption of the Rome Statute marked the foundation of a new kind of international justice. With the elevation of victims as trial participants and the acknowledgement of the role of civil society, ‘victims of unimaginable atrocity’Footnote ¹ were no longer to be mere beneficial objects, but also, at least in theory, active subjects of international criminal justice. In the early years of the Court, generally enthusiastic engagement by local non-governmental organisations (LNGOs) and networks of civil society organisations around victim participation processes and investigations in the first situation countries in the Great Lakes region, with the exception of Uganda, seemed to confirm this vision. Often heavily encouraged and supported by international NGOs (INGOs),Footnote ² these local interlocutors took on more weight, importance and authority than they ever had in the context of the ad hoc tribunals for Rwanda and the former Yugoslavia.Footnote ³ Against the background of the International Criminal Court’s (ICC) constantly expanding jurisdiction, they collaborated intensively across the organs as mediators for, and ‘interpreters’ of, the work of the Court with, and in relation to, communities in situation countries.

The involvement of these local organisations and individuals quickly became critical to the evolution of a new type of actor on the ICC stage: the ‘intermediary’. Despite their extensive engagement in operations, however, the role of intermediary was not explicitly envisaged in the Rome Statute. The word ‘intermediaries’ in fact appears only once in the core ICC framework documents.Footnote ⁴ A comprehensive and precise definition of these ‘informal agents of the Court’Footnote ⁵ remains elusive. The most recent official attempt describes an intermediary as,

It is clear, however, that not all who fulfil this definition are considered to be ‘intermediaries’ in different contexts and for different purposes. As the discussion below will illustrate, there are fundamental conceptual, legal and perhaps ideological tensions, which make agreement on the definition of an intermediary and the implications of such a designation contentious both inside and outside the Court. As has been recognised, ‘it is the complexity of the diversity of the situations with which the ICC is faced (rather than an ideological commitment to broader engagement as such) that has motivated the ICC’s turn to intermediaries’.Footnote ⁷

The variety of roles played by intermediaries has particularly complicated efforts to encapsulate and manage their place in the process of investigation and trial. While the contours of individual participation as a victim or witness are ultimately controlled by the organs and judges of the Court, engagement as an intermediary, as a critical valve between the ICC and the community, presents an opportunity to engage strategically before a case goes to trial. This potentially impacts both the course of investigations and the nature of victim participation, from the inside and from the outset.Footnote ⁸ Through tasks such as sharing information on international crimes, identifying witnesses and facilitating victim participation, many intermediaries go beyond providing a mere ‘link’ to the ground, actively shaping the narratives emerging about the situation itself.Footnote ⁹ Enjoying this locus of apparent agency vis-à-vis the Court in the early years, many local civil society intermediaries grew to see themselves as critical partners – and perhaps even as equal partners – in the international justice project.

Towards the end of 2007, however, as the ICC began to face increasing challenges both inside and outside the courtroom, intermediaries came under attack. As the most visible and accessible faces of the Court on the ground, these assaults on intermediaries came from all sides: not just from those hostile to the effort to hold perpetrators accountable, but also from victim communities frustrated and disappointed with the lack of change in their daily circumstances. When the conduct of intermediaries was placed under judicial scrutiny in the ICC’s first trial of Thomas Lubanga, intermediaries also found themselves portrayed as betrayers of trust, both of local communities and of the cause of international justice itself. At the same time, in different situation countries on the ground, intermediaries and their families were facing assault, imprisonment, torture and exile. As intermediaries fled for their lives, the responsibility and capacity of the Court to protect those who had taken serious risks on behalf of its operations were called into question.

Civil society intermediaries in many situation countries felt abandoned and disappointed. Not only were they under attack, but also they were grappling with an inconsistent – and unwritten – Court policy and practice, and an institution that seemed reluctant to acknowledge the full extent of their suffering. Even in its public pronouncements, the Court strived to minimise the reality, with Prosecutor Luis Moreno-Ocampo adamant in his assertion (as late as 2009) that ‘no one ha[d] been harmed as a result of their work with the Court’.Footnote ¹⁰

Eventually, the Court did begin an internal process to redress the gaps in the regulatory framework. In April 2012, the text of ‘Draft Guidelines Governing the Relationship between the Court and Intermediaries for the Organs and Units of the Court and Counsel Working with Intermediaries’ was agreed. It was only two years later, however, in April 2014 that a slightly amended version of this document (the ‘Guidelines’) was finally published on the Court’s website. Although publication of the Guidelines is welcome, the circumstances and form in which they have been issued are unlikely to fully address the confusion that has plagued intermediary engagement to date. With new situations under examination and investigation, the circle of intermediary engagement is only going to expand. Deliberate and thorough ‘road-testing’ of the Guidelines, anchored to a transparent review procedure, is urgently needed.

This chapter overviews the evolution of the role of local intermediaries in ICC operations and their gradual emergence as players before chambers, eventually becoming the fulcrum upon which the very existence of the ICC’s first trial turned. Drawing on aspects of the experience of intermediaries in the first five situation countries, it offers some reflections on the impact of this engagement upon intermediaries themselves, on their relationship with the Court and with their communities, and with the idea and reality of ‘international criminal justice’ more broadly.Footnote ¹¹ The chapter has three parts: it first sets out some of the key elements of the nature of ICC and intermediary engagement to date; it then traces a genealogy of this relationship with reference to key jurisprudence, policy and practice; and finally, it examines the framework that has been developed in response to this experience, namely the Guidelines. The chapter ends with some reflections on how the evolution of the intermediary role is challenging some of the assumptions underpinning international criminal justice itself.

This account of intermediary experiences does not purport to be comprehensive; it is grounded in observations gleaned during personal interaction with intermediaries in the Court’s first five situation investigations between 2007 and 2013.

New subjects of the international criminal justice process?

The work of civil society across the globe was critical to the creation of the ICC and the first decade of its operation. Through coordinated advocacy and action, NGOs – almost wholly INGOs – were major players in the drafting of the Rome Statute and influenced the final version to a degree then unique in treaty negotiations.Footnote ¹² Since the Statute entered into force, NGOs, again particularly INGOs, have led and participated in intensive ratification and domestication campaigns and promoted the principle of complementarity. Groups of INGOs and local NGOs working together were at the origin of the first referrals and the evolution of the Court’s caseload through vigorous human rights-monitoring initiatives and through sharing information with the Court and the international community.

Once proceedings began in The Hague, NGOs were successful in influencing the direction of investigations and trials through the submission of amicus curiae briefs and the identification of, and support to, victims as part of building the Court’s arguably ground-breaking victim participation process. NGOs continue to work with victim groups and submit information on international criminal law violations as they are alleged, allowing the Court to respond quickly through preliminary analysis and examinations where appropriate, in theory, helping to prevent the escalation of situations where atrocities are occurring. As was made clear by the Office of the Prosecutor (OTP) in 2009,

The text of the Rome Statute itself recognises civil society as part of the community of actors charged with achieving its objectives. In the context of initiating proprio motu investigations, Article 15 (2) of the Statute, for example, permits the prosecutor to ‘seek additional information from … intergovernmental or non-governmental organisations, or other reliable sources’. Article 44 (4) notes that the Court may ‘employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court’. The Court is also free to accept funds and voluntary contributions from ‘international organisations, individuals, corporations and other entities’ (Article 116). Where they have a representative function, civil society and NGOs can also be viewed as included within the references in the Statute to ‘victims’ and ‘victim communities’, in some circumstances. The requirement to take into account ‘the interests of victims’ pursuant to Article 53 (1)(c), for example, can be envisaged as involving consultations with local civil society.Footnote ¹⁴

The role that NGOs and civil society play in terms of the daily operation of the Court – including taking on tasks that are conducted (or could be conducted) by Court staff – is little reflected, however, in the few references to NGOs or ‘other entities’ in the Statute. The reality is that civil society – most particularly local civil society organisations, often through the facilitation of an INGO partner – has been an essential partner for all organs of the Court, involved in outreach, investigations, victims’ participation and even, in some cases, assisting with the protection of witnesses, victims and others at risk. NGOs and individual members of civil society have engaged with the organs of the Court across a broad spectrum of tasks: disseminating information on the Court’s operations, collecting information on the commission of international crimes, advising on outreach strategy, helping defence counsel to locate experts, negotiating access to high-level insider witnesses, acting as ‘first responders’ for victims and witnesses under threat and participating in radio panels with Court staff.

This extensive engagement and its implications for the ICC’s operations were little contemplated at the outset of the Court’s work: as noted above, the word ‘intermediaries’ only appears once in its formal framework. Initially, when intermediaries were referred to in proceedings it was in discussions around the proper completion of victim participation applications or the context of applications for redactions of witness statements. It was the Lubanga trial, however, which brought to light the extensive the role that intermediaries have been playing on the ground in the conduct of essential tasks for the Court.

The realities of intermediary engagement

There are a number of key aspects of the intermediary role which are important for understanding how the relationship of intermediaries with the ICC unfolded and, indeed, subsequently, at least partially, unravelled.

Unlike the ad hoc tribunals, which were set up for particular situations and thus able to deepen their contextual knowledge and internal expertise over time, the ICC is constantly engaging in new places. The OTP preliminary analysis can one day be working on the situation in the two Koreas, and the next day in Mali. As it embarks on a new investigation with generally little background and few contacts on the ground, local interlocutors become essential to the Court’s operations.Footnote ¹⁵ At one point the prosecutor even called the use of intermediaries ‘best practice’, explaining that intermediaries could ‘undertake tasks in the field that staff members cannot fulfil without creating suspicion; they know members of the community, and they have access to information and places that are otherwise unavailable’.Footnote ¹⁶ De Vos has argued that the OTP in fact deliberately designed its evidence-gathering practices, ‘to minimize the time investigators spend in affected communities, and their degree of engagement with local actors’.Footnote ¹⁷ It is likely, therefore, that the ICC will increasingly rely on intermediaries as it increases its reach and its budget decreases in real terms in relation to the number of cases and situations before it.

As noted above, the current Guidelines definition of ‘intermediary’ pivots on the notion of a ‘link’ between the Court and others it must engage with on the ground. Although in many respects this conception is apt, the passivity of the notion fails to capture the variety of intermediary profiles and the breadth of tasks that they conduct.Footnote ¹⁸ Intermediaries may come from all sides and strands of the community in a situation country. They can be political figures, rebel army representatives, local tribal leaders, teachers and professors, deserters from government forces or government officials acting in their private capacity.Footnote ¹⁹ They will have a range of motivations from the politically partisan, to the ideological, financial and even, in some instances, revenge. Some intermediaries come to the ICC spontaneously (they may approach the Court to communicate on behalf of victim communities), while others are contacted by the Court because of their specific expertise. The majority of intermediaries, however, are staff of LNGOs or members of civil society networks working in the human rights or social justice field. These groups of intermediaries tend to identify most deeply with the ostensible objectives of the ICC and have also generally seen themselves as allied with the prosecution. It is local civil society and LNGO intermediaries who have also shouldered the greatest burdens as intermediaries, whether in terms of the multiplicity of tasks they have conducted, or through their position on the front lines of the broader national and regional battles around the legitimacy and impact of the Court.

The country and NGO contexts within which civil society intermediaries operate have been quite different: in Kenya, for example, the civil society movement has a very different history and set of capacities than its analogue in the Central African Republic. At the same time, where the pool of individuals with the necessary skills, interests and political courage to assist the Court is small, a few intermediaries often find themselves playing different roles for different sections and organs of the Court. This can complicate both the framework of the intermediary relationship with the ICC as well as relationships between the organs of the Court itself. It can also raise questions surrounding confidentiality and security.Footnote ²⁰ Multiple roles may also be played by intermediaries in the proceedings themselves. In the Lubanga case, for example, a number of intermediaries eventually became key witnesses in the trial. Some were also victim participants, illustrating the close relationship between conflict-affected individuals and communities, and those who were carrying out work as ‘intermediaries’.

Related to these realities, there is often a tension in the intermediary relationship between the Court’s desire to benefit from local perspectives, access and expertise and its concern that local interests, whether political, financial, security-related or opportunistic, will tarnish the products of that relationship. The idea that local interlocutors should function as mere volunteers of the Court divested of their own politics or interests is prevalent.Footnote ²¹ It would be natural that those working on behalf of the Court on the ground see financial or political opportunities in ICC interventions: the ICC generally arrives into situations of severe economic and conflict deprivation and Court staff and others in the international justice community enjoy relatively large salaries. These latter conditions of privilege are directly linked to the suffering of those whose cooperation they now seek. In this light, the extent to which local civil society intermediaries have been willing to engage without question of reward is remarkable. Indeed, intermediaries usually provide their services voluntarily to the Court. In certain circumstances, the basic costs associated with the intermediary task may be reimbursed, whether by the Court or one of its partners, such as, for example, an INGO through the operation of a special project. The Court directly remunerates intermediaries in extremely few circumstances. In the whole of 2012, for example, the total remuneration payments made to intermediaries by the OTP was €5,490.Footnote ²² ICC judges have particularly lauded the cost-saving elements of the intermediary function, with Judge Ušacka declaring that ‘intermediaries who assist [victim] applicants in accessing the Court are essential to the proper progress of the proceedings’.Footnote ²³

The role of local civil society in the work of the Court has sometimes been obscured by the need to maintain confidentiality in difficult security contexts, but also as a result of the more vocal public positioning of INGOs. INGOs have played very active intermediary roles themselves, in many cases initiating, bridging and directing the relationship between local NGOs and civil society and the Court. In these cases the INGO tends to take the role of principal interlocutor with the Court, reducing the risks that might be assumed by the local NGO but also helping to ‘manage’ what emerges from the ground. In this regard, INGOs are often viewed as the senior or lead intermediary, assumed to have the greater knowledge about the needs of the particular Court organ or process.Footnote ²⁴ This dislocation of the local from The Hague – however well intentioned – has sometimes created complications. Although NGOs may be united around the same general principles and objectives, how these are interpreted in the situation country may vary. Local civil society and INGOs will usually have very different interests in the dynamics of power, access and resources that attend the Court. These diverse dynamics have affected how elements of ‘global civil society’ have understood, and acted in relation to, the Court’s activities and pronouncements, often with negative consequences for intermediaries on the ground.

Tracing the relationship: from enthusiasm to stasis

There are three main phases that can be discerned in the evolution of the relationship between local intermediaries and the Court in the first five situation countries.Footnote ²⁵ The first phase was generally characterised by enthusiasm and energy, the second by disappointment and retreat, and the third by mutual wariness and efforts to corral intermediaries through regulation.

During the first phase, with the OTP and other organs of the Court actively entreating partnerships, NGOs responded generously, little questioning the wisdom of participating in investigations or the possible consequences.Footnote ²⁶ In parallel on the ground, in local communities where the ICC was focused, there was considerable expectation around the transformative potential of both investigations and the victim participation process. All this local support was infused with the ideological and financial commitment of a group of INGOs which had invested much in the creation of the Court and was now determined to see its first investigations bear fruit.Footnote ²⁷ The one exception to this atmosphere was Uganda, where local NGOs were overwhelmingly resistant to the entry of the Court into the conflict dynamic, despite considerable pressure by INGOs and others to promote the engagement of the Court.Footnote ²⁸

As a result of this sense of joint mission, intermediaries, their communities and sometimes even ICC staff saw intermediaries as emissaries of the Court on the ground. This identification with the Court would later prove problematic when the relationships fissured and it became clear that roles and responsibilities sometimes led in different directions.Footnote ²⁹ In this heady atmosphere there was also little reflection by intermediaries on the complexities and dangers of engaging as active partners with the Court, both personally and for their communities. International justice was invested with huge expectations, interwoven with assumptions about the capacity of the international community and its mechanisms to deliver political transformation. As one intermediary put it, ‘they told us we would be part of history’. This fever of expectation not only seized local and INGOs but also affected the Court itself. As a result, at an operational level there was little sober assessment of risks, responsibilities and necessary mitigating measures. As the years went by and there was little movement in judicial proceedings, not least with respect to arrests, conflict-affected communities in many places became restive. As the on-the-ground interlocutors for the Court, intermediaries bore the brunt of the discontent, especially as tensions around the work of intermediaries also came to the fore in The Hague.

Developing a predicable framework for intermediary engagement

Developing a consistent policy for the Court on intermediaries has proven difficult, both technically and politically. The diverse nature of the identity and function of intermediaries and the fact that they may play multiple roles with respect to different organs and parts of the Court make a ‘one-size’ approach impossible. Issues surrounding confidentiality and information sharing across organs have also impeded the development of a standardised set of practices. With the decision in Lubanga identifying ‘lack of proper oversight’ of intermediaries as a problem, however, the challenge became a judicial imperative.

In April 2012, a long and intensive Court-wide process ongoing since 2009 culminated with internal agreement on Draft Guidelines, a ‘Code of Conduct’ and a ‘Model Contract’. NGOs and civil society had been invited to make detailed comments on previous drafts of the Draft Guidelines – although not on the Model Contract and Code of Conduct – through outreach to the Coalition for an International Criminal Court and the Victims’ Rights Working Group.Footnote ⁴⁶ Two years later, in April 2014, an amended version of these documents appeared on the Court’s website with the announcement that they had been ‘in force’ since 17 March 2014.Footnote ⁴⁷

It is heartening that the Guidelines have now been published. They contain a broad appreciation of the intermediary function and acknowledge the extensive tasks conducted. Alongside a framework for payment of expenses, it is also recognised that intermediaries can even be compensated for their work, in some circumstances. The Guidelines acknowledge the need for support, ‘capacity building’ and information sharing between the Court and intermediaries, including good practices on risk management. Critically for those on the ground, the Court’s obligation to assess and to take into consideration the risks faced by the intermediary is clearly set out: ‘The Court has a duty to prevent or manage security risk to intermediaries when those risks result from the intermediaries’ interaction with the Court and the fulfilment of the intermediaries functions on behalf of the Court.’Footnote ⁴⁸ An IRA is thus required before an organ or a party embarks on the intermediary engagement, and it must be reviewed as circumstances change on the ground.Footnote ⁴⁹ Finally, it is acknowledged that there may also be a need for different organs or units of the Court to develop ‘specialised policies in accordance with any specific obligations under the Statute’.Footnote ⁵⁰

At the same time, the Guidelines contain significant ambiguities, contradictions and potentially impractical elements. Divergent conceptions of the nature of intermediaries, their different functions and capacities, a bias against the bona fides of the local and fear of the ‘dangerous intermediary’, all permeate the Guidelines to some extent. Some reflections on the challenges to the workability and effectiveness of the Guidelines are offered here.

Conclusion

The experience of local civil society intermediaries before the ICC is a microcosm of many of the challenges that are inherent to, and continue to thwart, the ambition of the Rome Statute. Setting forth on an experimental path of implementation, monitoring and review of the Guidelines will pose difficult, but necessary, questions about the Court and its relationship with ‘victim communities’, and more broadly, about the role of international criminal justice itself.

Intermediaries are needed by the Court for their intimate entwinement with, and capacity to mediate, interpret and influence, the local. At the same time they are expected to act as emissaries of an impartial global mechanism of international criminal justice corralled by contracts and codes that decontextualise and depoliticise. This austere vision of the intermediary role is juxtaposed with the reality that intermediaries usually have local responsibilities to bear witness and work as agents for change in a context where the ICC is conceived as a political instrument.Footnote ⁸¹ Intermediaries and the Court may therefore sometimes share goals and ideological discourse, but almost always have divergent obligations and interests.

As one commentator has put it, ‘whereas the International Court of Justice and other international authorities presuppose a community of nations, the ICC rests on an assumption of world citizenship and, as a result, its success depends on the cooperation of global civil society’.Footnote ⁸² In many ways, the engagement of local intermediaries on the ground can be idealised as the manifestation of this vision of the Court: a democratic mechanism, working with, and responsive to, local communities, challenging the powerful, and ensuring the existence of multiple truths through safeguarding, ‘the delicate mosaic of humanity’. At the same time, the Court promotes itself as a strictly controlled criminal judicial mechanism, permitting and defining only certain categories of persons and story to be heard in the construction of its own singular narrative.Footnote ⁸³ ICC intermediaries are caught in the middle, occupying a space between what Emily Haslam has described as civil society as object and civil society as subject within the practice of international criminal law.Footnote ⁸⁴ More broadly, the intermediary struggle for recognition before the Court reflects the larger struggle around the question of ‘what justice and whose justice’ gets done by the ICC. Who mediates the activities of this chimera of ‘impartial and universal’ international criminal justice in the complex social, cultural and political realities of particular investigations, in the real world, on the ground?