In Uganda, Luis Moreno Ocampo will perhaps remain the most memorable prosecutor in the history of the International Criminal Court (ICC). As the court’ first chief prosecutor, Ocampo took office at a time when the ICC was newly established and struggling to prove its relevance on the international scene. The situation in northern Uganda – the court’s first full-fledged investigation – instantly became unpopular as many viewed the investigation as an obstacle to peace in the region. Ocampo, hilarious and dramatic in equal measures, absorbed this initial cold reception until he handed over the office to the current prosecutor, Fatou Bensouda. While Bensouda’s tenure has been less turbulent, it has not been without criticism. As Bensouda’s term ends, therefore, civil society representatives in Uganda have offered insights on the selection process for her successor, including requirements and lessons that the next ICC prosecutor should take into account.
The ICC’s Assembly of States Parties will be electing the next ICC Prosecutor in December 2020. Article 42(3) of the Rome Statute requires that the prosecutor be a person of “high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases.” Asked if there were any additional requirements they felt were relevant, civil society representatives made various recommendations.
“The next prosecutor should be highly versatile, have a high contextual knowledge, insights, and experience of local contexts in which crimes were committed so that he/she may be able to understand some of the things being raised and the issues to deal with,” observed Ambrose Olaa, the Prime Minister of Ker Kwaro Acholi. “The problems in northern Uganda for instance started way back before colonialism, but most of the discussions today do not recognize that. So the prosecutor should be highly knowledgeable and able to learn broadly.”
“He or she should be a person who is able to act independently and impartially, one that has read widely, but is able to balance research in the library and on-ground realities,” noted Tamar, a civil society representative working with Gulu Women’s Economic Development and Globalization (GWED-G).
Asked to deliberate on what requirements a prosecutor should prioritize when selecting a team to handle a specific investigation or case, civil society representatives in Uganda emphasized the need for a team that is knowledgeable on the local context.
“The team should comprise of people who are knowledgeable of the local context and the dynamics of the society where investigations are to take place. If you look at the case of [ICC defendant Dominic] Ongwen, except for Ayena [Krispus Ayena Odongo, Ongwen’s lead defense lawyer], the rest of the court officials, be it the defense or the prosecution, are all clueless about the dynamics of Acholi,” noted Olaa.
Immaculate from GWED-G noted, “I think one of the most important things is to have a team with deep contextual knowledge of the issues being referred to. For example, getting a prosecutor who is well versed with the northern Uganda war and also people who are experienced in legal practice and criminal justice. But as much as we may want the local context to be maintained, they also need international lawyers to support.”
The ICC’s investigation in Uganda has mainly focused on the actions of the Lord’s Resistance Army (LRA). However, many civil society representatives believe that the prosecutor should also focus on other incidents, including investigating the Ugandan government for its actions during the war.
“I think the burning issue that has been there right from the beginning regarding the situation in northern Uganda is the fact that it is unfair to only investigate the LRA. This is because if two parties are fighting it is not easy to distinguish who committed crimes. If the ICC really stands for justice, then in-depth investigations should be conducted against the Government of Uganda,” observed Francis Lokwiya from the Acholi Religious Leader’s Peace Initiative (ARLPI).
“There are many incidents that should be investigated in Uganda. Look at the Kasese incident and many more crimes happening in Uganda. Besides that, in a war, two parties get involved, but in this case, only Ongwen and the LRA are being blamed. Why? Ongwen is just a fish in the pond, and he was part of a system. Why is the focus on only him and yet the rest of the system is free? The war in the north involved more than Ongwen,” noted Olaa Ambrose.
William from GWED-G agreed with Oola, “What comes to mind is the Kasese massacre. To me, it is what really should interest the ICC. And also very importantly, the ICC should be interested in investigating state involvement in the crimes committed during the northern Uganda conflict. Kony came in much later, but before him, there was a lot that was happening in places like northeastern Uganda.”
Asked to state if there were emerging global challenges or situations the next ICC Prosecutor should focus on, the civil society representatives highlighted many issues including terrorism, modern-day slavery, and human trafficking.
“The issue of terrorism is fast growing in Africa. That could be part of ICC’s focus. In Africa, the issue of terrorism is becoming a real threat,” said Lokwiya.
“Yes! There are several global challenges way too much beyond the court,” observed Oola. “Take an instance of the modern day slavery in Libya where people are being sold off, the crime of terrorism, human trafficking, among others. The ICC should be interested in finding out who these people really are.”
“A burning issue that the ICC may also interest itself in is human trafficking, which is fast growing and now turning into modern day slavery,” reiterated Immaculate.
With this being the third election of a prosecutor, civil society representatives felt that the next ICC prosecutor could learn lessons from the court’s involvement in Uganda, the most notable being developing an understanding of the local context and promoting complementarity.
“I think prosecutors have not been able to appreciate our traditional justice systems. They are so much into the formal justice system, which is good anyway and can address war crimes and crimes against humanity. But when you come down to local communities, it might not address a lot of things. For instance, if Dominic Ongwen is to be convicted and probably imprisoned somewhere there, it doesn’t solve a lot of problems here,” remarked Francis.
“There is need to understand the local context in-depth,” agreed Olaa. “The primary focus should be the local systems before thinking about the ICC. Nevertheless, the situation in Uganda is dynamic and requires a huge amount of knowledge. The next prosecutor should understand that the conflict in Uganda did not only involve one party. Many crimes were also committed by the other parties who should be investigated as well. Holding on a few individuals doesn’t bring true justice.”
“We appreciate the effort being made by the ICC towards delivering justice to victims of violence, but while following the community video screening of Ongwen’s trial, I noticed a mixed reaction about the ICC. I think the next prosecutor should do more to ensure that communities understand the ICC properly,” said Immaculate.
“Since there are still many potential suspects at large, including Joseph Kony, and the fact that we have the ICD [International Crimes Division of the High Court of Uganda] here in Uganda, I think the next prosecutor should consider relieving some of the work to the ICD so that future trials are handled domestically,” said Tamar of GWED-G .
“During the LRA war, there were two opposing sides: the LRA and the Ugandan government. So the next prosecutor should learn from the constant complaints on why the state is not being held accountable,” said William.
Asked whether they thought the next ICC prosecutor should have a largely diplomatic role as the head of the Office of the Prosecutor (OTP), or whether he/she should focus on day-to-day management of investigations and prosecutions, the civil society representatives gave varied responses.
“The roles should be more than what they are currently doing so that they don’t act like a fire brigade, which only acts when fire breaks out. At least where there are early signs of conflicts/atrocities they should be able to intervene,” said Francis from ARLPI.
“A prosecutor is a technical person who is highly knowledgeable in his/her field. I think the prosecutor should be left to focus more on his/her work instead of being tasked to carryout diplomatic functions. After all, there are other officials in higher positions who may engage in diplomacy and politics,” stated Olaa.
“I think it is important for the prosecutor to play diplomatic roles alongside the day-to-day running of the cases. This is because some of these issues are highly classified but could be handled through dialogue with the parties involved regardless of whether they’ve ratified the statute or not, but we need them to end conflict and impunity no matter the means,” said Immaculate.
In light of difficulties faced by both Ocampo and Bensouda, civil society representatives were asked to reflect on what challenges may influence the next prosecutor’s ability to exercise effectively their mandate.
“One of the challenges is that the court is far away in The Hague. Secondly, it is a court that cannot prosecute crimes that were committed years ago [before 2002]. For example, the LRA started long time ago, and the ICC has not investigated those early crimes because they were not here. Doing a thorough investigation on past incidents for a court that has not been in the country is not possible,” noted Francis.
“One of the challenges is that there is increasing mistrust against the ICC by Africans who view it as a tool being used by Western powers to pursue Africans. In addition to that, the selection of a team to carryout investigations will pose a big challenge on the credibility of his/her work. I think the prosecutor may also be limited by the Rome Statute on certain things, such as time frame, scope, and others,” said Oola.
“Non-cooperation by state parties, especially where the situation is complicated, is a challenge. Another challenge is the issue of sovereignty where a state may feel the prosecutor is interfering with their internal issues,” observed William.
Currently, the Committee on the Election of the Prosecutor is accepting applications for the position of ICC Prosecutor. The deadline to apply is October 31, 2019.
Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda and South Sudan since 2006. He is also the Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.