At the end of last year, the International Crimes Division (ICD) of the High Court of Uganda delivered a landmark ruling in which it found the Ugandan government culpable for failing to arrest former Sudanese president Omar al-Bashir. Al-Bashir visited Uganda three times between 2016 and 2018 before a military coup ousted him from office in April 2019. As part of the same ruling, the ICD ordered the Ugandan government to execute the International Criminal Court (ICC) arrest warrants in the future and issued its own arrest warrant to this effect. Justice Henry Peter Adonyo delivered the ruling.
All three of al-Bashir’s visits to Uganda have occurred while the trial of Dominic Ongwen is ongoing at the ICC. Despite Uganda’s cooperation with the ICC regarding the trial of Ongwen, a former commander of the Lord’s Resistance Army (LRA) who is charged with 70 counts of war crimes and crimes against humanity, the government has consistently ignored calls to arrest and hand over al-Bashir to the court. On the second occasion of al-Bashir’s visit in 2017, civil society organizations (CSOs) in Uganda lodged an application at the ICD calling upon the Ugandan government to fulfill its international obligation to arrest al-Bashir. However, al-Bashir successfully concluded his visit and left Uganda before a ruling could be made on the matter.
The recent ICD ruling was in response to the 2017 application. The Uganda Victims’ Foundation (UVF) lodged the application, and Nicholas Opiyo, an advocate of the High Court of Uganda, represented UVF in the matter. The application called upon the ICD to order the arrest of al-Bashir if he were to set foot in Uganda again. The application also noted that at the times al-Bashir visited Uganda, the government failed in its obligations to arrest and deliver him to the ICC.
In response to the application, the Ugandan government conceded that al-Bashir did visit Uganda despite two outstanding ICC arrest warrants against him. The government, however, explained that their failure to arrest al-Bashir was “for good reasons such as the existence of an African Union (AU) resolution barring any member state from arresting or effecting and warrant of the ICC against any sitting African head of state…as a result of the AU’s unhappiness with the conduct of the ICC and that the ICC was being used by some quarters to target Africans.”
The Ugandan government also argued that the application had been overtaken by events following al-Bashir’s overthrow and that it was now willing to execute the arrest warrants because al-Bashir was no longer a sitting head of state.
The December 19, ruling by the ICD read in part as follows:
[T]he failure and or refusal by the [Ugandan Government] to take steps to arrest and surrender to the ICC the said Mr. Omar Hassan Mohammed Al-Bashir on the occasions of his visits to Uganda …. Was INCONSISTENT with and in violation of sections 2 (a) (b) and (e), 17 (2) of the International Criminal Court Act, Article 89 (1) (a) of the Rome Statute and breached United Nations Security Council resolution 1593 of 2005.
The ICD further ordered the Ugandan government to ensure implementation of the arrest warrants.
“The arrest warrants issued by the International Criminal Court against Mr. Omar Hassan Mohammed Al-Bashir MUST be implemented by the state of Uganda through clear processes laid down in the Rome Statute as domesticated by the ICC Act 11 of the laws of Uganda, 2010.”
To emphasize the above, the presiding judge issued another arrest warrant against al-Bashir.
“For avoidance of any doubt, this Honourable (Judge) doth hereby issues its own arrest against Mr. Omar Hassan Mohammed Al-Bashir whenever he sets foot within the territory of or under the control of the Republic of Uganda.”
Finally, the ICD ordered the Ugandan government to meet the costs of the lawsuit. There has been no response from the Ugandan government to the ruling.
While this ruling may have been overtaken by events surrounding the removal of al-Bashir as president of Sudan last April and his subsequent conviction on corruption charges, it has set an important precedent and provided a strong reminder about the obligations of state parties to the ICC to arrest fugitives.
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. This trial monitoring report was compiled in partnership with Avocats Sans Frontiere (ASF) who observed trial proceedings in Kampala.