On 4 July 2004, Ugandan President Museveni held a joint Press Conference in London with the first Prosecutor of the International Criminal Court (ICC), Mr. Moreno Ocampo, announcing that Uganda was the first African State to refer a situation of widespread and systematic crimes against humanity to the jurisdiction of the ICC. While this event generated criticism due to the need to preserve the independence and autonomy of the ICC Office of the Prosecutor from any interference and pressure of Governmental authorities of any sort, Uganda did not violate any provision of the Rome Statute of the ICC, the treaty through which an overwhelming majority of States had decided to create the first permanent criminal jurisdiction to fight impunity for the most serious crimes under International Law.
The Office of the Prosecutor proceeded with the investigation and prosecution of alleged international crimes, including the systematic enslavement of children committed by the Lords’ Resistance Army (LRA), a violent extremist group, while it could not prosecute any crime committed in Uganda or by Ugandans before the date of entry into force of the Rome Statute, 1 July 2002, due to the principle of non-retroactivity incorporated in the Statute ratified by Uganda thanks to the leadership campaign of Members of Parliament of the Parliamentarians for Global Action (PGA) Ugandan group.
On 10 March 2010, the Ugandan Parliament voted unanimously the ICC Act, which implements all the principles and norms of the Statute into the domestic legal order, including the norm affirming that immunities of Heads of States or other officials shall not constitute a bar for arrest and surrender to the ICC.
Even though the global support that Uganda received following the referral of its situation to the ICC was instrumental to the end of the conflict in Northern Uganda, which was primarily victimizing civilians, media sources are reporting that today, 12 May 2016, Uganda is receiving in Kampala a fugitive of international justice, Mr. Omar Al-Bashir, the President of Sudan.
Mr. Al- Bashir is accused of genocide, crimes against humanity and war crimes allegedly committed in Darfur, regarding which the ICC has jurisdiction on the basis of a United Nations Security Council Resolution that refers the Darfur situation to the Hague-based Court.
The Security Council recognized that ending impunity in Sudan would be beneficial to the restoration and maintenance of international peace and security under Chapter VII of the UN Charter, which binds all UN Member States and all regional Organizations, like the African Union, which have a mandate to pursue peace and security only in accordance with Chapters VIII and VII of the UN Charter. As a consequence, all decisions taken by the AU on peace and security in Africa, including those relating to the ICC and the Darfur situation, may not contravene a legally binding Chapter VII resolution, otherwise they would be null and void.
In accordance with the Ugandan ICC Act of 2010 the State of Uganda must arrest and surrender Al- Bashir to the ICC, regardless of any Head of State immunity or other arrangement and agreement.
Therefore, on one side Uganda cannot invoke the AU decisions against the ICC to legally justify the non-arrest of President Bashir on its soil as they may not contravene or trump the legal framework establishing the jurisdiction of the ICC on Sudan’s Darfur, on other side the Executive power of Uganda may not violate its own legal order and fail to apply its own laws, should the Rule of Law apply in Uganda. These legal obligations may not be altered in any way, either now or in the future, by the decision of any State to withdraw from the Rome Statute or any other decision that might potentially place Uganda outside of the framework where it belongs, the one of the peace-loving Law-abiding nations.
In light of the above, the global network of PGA, which includes a vibrant National Group in the new Legislature of Uganda, call upon all relevant authorities of the State of Uganda to take immediate action to remedy this situation and execute without delay the ICC request of arrest of Al- Bashir on the basis of applicable laws.
PGA believes that such a step would be in the best interest of peace, democracy and the Rule of Law in the world, including Sudan, given that Mr. Al-Bashir is an individual that benefits from the presumption of innocence and has the right to defend himself from the extremely serious charges levelled against him before a competent and independent Court, and that victims of mass-atrocity crimes allegedly committed by Mr. Al-Bashir in Darfur have the inalienable right to access to justice, know the truth and have it officially acknowledged by a competent and independent Court of law. The International Criminal Court represents the only available and effective remedy for the mass-atrocities committed in Darfur, Sudan.
