The Mail & Guardian’s Haydee Bangerezako and Kabuika Kamunga speak to Phakiso Mochochoko, senior legal adviser at the International Criminal Court.
Is it possible for an NGO to ask the International Criminal Court (ICC) to come in and investigate?
There are three ways by which cases can be brought to the court. First is the referral by a state party itself, which refers the situation to the court. Second is a referral by the [United Nations] Security Council, which was the case with regard to the situation in Darfur. And third, the prosecutor can initiate investigations on the basis of information that he or she receives from NGOs, individuals or any other source.
The ICC investigated Lord’s Resistance Army (LRA) crimes upon the request of Ugandan President Yoweri Museveni. During the investigation, did the prosecutor find evidence of crimes committed by the Ugandan government?
The government of Uganda referred the situation in Northern Uganda to the court for investigation. What was referred to him [the ICC prosecutor] was that he should investigate in Uganda and find out which crimes had been committed in Uganda and by whom. He will go wherever the evidence leads him. Up to now, the investigation has revealed that the five top LRA commanders have committed some of the crimes. As far as I am aware, the investigations are not yet closed and the prosecutor is continuing to investigate. He will indict, or bring to court, anybody for whom the evidence indicates that he has committed a crime that falls under the jurisdiction of the court.
According to the Rome statute, the Ugandan government is obliged to follow up on the arrest warrants issued by the ICC for LRA leaders. What if the Ugandan government does not feel obliged to do so? How will the ICC implement the process?
The obligation is on the Ugandan government and all participants to the statute to affect arrest warrants. If it does not do so, then the court itself cannot force Uganda to carry out its obligations under the statute. What the court can do is refer the matter to the assembly of this party [the 102 signatories of the ICC] of which Uganda is also a part. And it will be for the assembly to decide what to do in case a member state, which has ratified the statute, fails to carry out its obligation under the statute. The court itself has got no enforcement power against any state, including Uganda.
The members must have thought of situations like this ahead of time. What will they do, what options do they have to make sure that a government follows up on arrest warrants?
They may have thought about it, but unfortunately at the moment in the statute itself there is no guidance as to exactly what it is that they can do. All the statute says is that if there is such a situation of non-cooperation then the matter should be referred to the assembly of state parties for it to take action. What actions they are going to take is not stipulated in any way in the statute or anywhere in the other documents of the court so far.
Is there room in the ICC for the traditional justice systems that you find in African countries?
The statute foresees that the court is complementary to national justice systems. So first and foremost, it is for the national justice system to deal with the situation. Only if those national justice systems are not able to deal with these situations adequately can the court come in. Also, the court itself can only deal with certain cases, it cannot deal with each and every individual who is alleged to have committed some of the crimes under the statute. Therefore, the complementary nature of the court requires that situations that the court cannot deal with should be dealt with in accordance with the national justice procedures. It will be up to the state itself to decide what those national justice procedures are and how it can deal with remaining cases that the court itself cannot deal with.