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196 Chapter 8 crimes allegedly committed by Eichmann occurred before the coming into existence of the state of Israel. Before Habré, Augusto Pinochet was the first former head of state to be prosecuted in a domestic court for human rights violations allegedly committed while serving as head of state. Proceedings were instituted against Pinochet in the United Kingdom for the crimes he aledgedly committed while President of Chile from 1973 to 1990. These proceedings were terminated, based on the fact that Pinochet was deemed unfit to stand trial. The case was a landmark case on the immunity of former heads of state. 48 The Habré case has caused a state of confusion by different fora: the ICJ, Senegalese courts, UN Committee Against Torture, the ECOWAS Court, and Belgium courts. These institutions have given conflicting positions on retroatctivity and universal jurisdiction in respect of Habré. 5 Conclusion Unpunished human rights violations in other parts of Africa permanently remind one that the trial of Hissène Habré in Senegal is not an end but rather a beginning and that it will contribute to the development of international law in Africa. Particularly, it will unveil the duty to prosecute or extradite suspects of international crimes under customary international law. It is also likely to echo the sentiment that no person, including a former state official, is above the law. Further, the trial is likely to explain that international crimes are punishable regardless of the defences regarding the non-retroactivity of law and punishment. Importantly, the trial will shed light on the principles of universal jurisdiction, territoriality and passive nationality, and will re-state the principle that the immunity of a state official is not a defence in international criminal justice. The trial of Habré in Senegal has also helped the African Court on Human and Peoples’ Rights to give its position on the admissibility of cases before that Court pursuant to articles 5(3) and 34(6) of the Protocol establishing the Court. Further, the case has enabled Senegal to enact laws that enforce the principles of international criminal law as found in the Constitution. Article 9 of the Constitution of Senegal provides for universal jurisdiction over genocide, war crimes and crimes against humanity committed in the past and outside the territory of Senegal. 48 The House of Lords which examined the issue of Pinochet’s immunity as former head of state was of the opinion that ‘a former head of state may only benefit from immunity for acts carried out in the exercise of legitimate state functions, which cannot include international crimes such as torture’.
CHAPTER 9 1 Introduction PROSECUTING INTERNATIONAL CRIMES COMMITTED BY THE LORD’S RESISTANCE ARMY IN UGANDA * LL.B(Makerere);LL.M(Pretoria); PhD(Western Cape); Lecturer and Deputy Dean (Postgraduate & Administration) Faculty of Law, Makerere University. I would like to thank the anonymous referee for the comments on an earlier draft of this chapter. 197 Christopher Mbazira* Many African countries have over the last four decades experienced economic, social and political upheavals characterised mainly by civil wars and resultant civil unrest. 1 Uganda stands out in the catalogue of countries with experiences of this nature. Uganda gained its independence from Britain on 9 October 1962; however, less than a decade into its independence the country was subjected to the dictatorship of Idi Amin (1971 to 1979). The Amin-period was characterised by massive human rights violations, economic breakdown and untold suffering of the masses. Although the overthrow of Idi Amin in 1979 came as a reprieve for Ugandans, the subsequent period, albeit on a moderate scale, could be described as putting old wine into a new bottle. Rather than heralding democratic rule, the first multi-party elections held in 1980 ignited a civil war in which thousands of Ugandans lost their lives. The end of the civil war in 1986 when Museveni and his National Resistance Army (NRA) seized power was greeted with a sigh of relief. Overnight guns became silent and peace returned to the country. However, as had been the case after the overthrow of Idi Amin, Ugandans were mistaken; civil wars immediately erupted in several parts of the country. Although situations in some parts of the country, including the East and the West, were quickly contained, the civil war in Northern Uganda was 1 In 2000, the Yearbook of World Armaments and Disarmaments (Stockholm International Peace Research Institute) took note of the fact that Africa was the most war-ridden region of the world and one in which war was on the increase.
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Prosecuting International Crimes in
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1 2 TABLE OF CONTENTS FOREWORD ix C
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6 7 8 6 Relevance of the jurisprude
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12 13 14 4 Conclusion 246 PART IV:
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FOREWORD I write this foreword with
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CONTRIBUTORS Benson Olugbuo is a So
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1 INTRODUCTION Chacha Murungu* & Ja
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Introduction 3 The commission of in
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Introduction 5 Apart from internati
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Introduction 7 resort. The conclusi
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PART I: GENERAL ISSUES IN THE PROSE
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12 Chapter 1 oblige states to prose
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14 Chapter 1 3 The obligation to pr
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16 Chapter 1 perpetrators of these
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18 Chapter 1 namely, national, ethn
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20 Chapter 1 the International Crim
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22 Chapter 1 amnesties for serious
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24 Chapter 1 payment of compensatio
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26 Chapter 1 punish international c
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28 Chapter 1 notorious violations o
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30 Chapter 1 in the case of the cou
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CHAPTER 2 1 Introduction IMMUNITY O
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Immunity of state officials and pro
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PART II: INTERNATIONAL COURTS AND P
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64 Chapter 3 evidentiary areas of i
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66 Chapter 3 pioneering effort in a
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68 Chapter 3 particular group, the
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70 Chapter 3 Indisputably, the abse
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72 Chapter 3 The Akayesu judgment,
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74 Chapter 3 particularly in light
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76 Chapter 3 for the destruction of
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78 Chapter 3 being of persons, in p
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80 Chapter 3 conflict - the ‘war
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82 Chapter 3 Chamber had itself fou
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84 Chapter 3 found in the first pla
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86 Chapter 3 of the Statute than
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88 Chapter 3 The majority’s appro
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90 Chapter 3 duties as a superior e
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92 Chapter 3 present at the trial,
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94 Chapter 3 international crimes.
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96 Chapter 3 advanced nor argued an
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98 Chapter 4 Unlike the Internation
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100 Chapter 4 years imprisonment wh
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102 Chapter 4 The Prosecutor’s de
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104 Chapter 4 2.3 SCSL and the Trut
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106 Chapter 4 who bear the greatest
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108 Chapter 4 responsibility for in
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110 Chapter 4 population’. 76 The
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112 Chapter 4 2.5.1 Acts of terrori
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114 Chapter 4 and Additional Protoc
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116 Chapter 4 Essentially, there mu
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118 Chapter 4 conscription of child
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120 Chapter 5 The United Nations Se
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122 Chapter 5 There are two main th
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124 Chapter 5 goal of rehabilitatio
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126 Chapter 5 that punitur quia pec
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128 Chapter 5 circumstances of the
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130 Chapter 5 retribution, deterren
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132 Chapter 5 Another argument in t
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134 Chapter 5 children. 111 Those o
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136 Chapter 5 assessed’. 119 In m
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138 Chapter 5 that there were no mi
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140 Chapter 5 Santigie Borbor Kanu
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142 Chapter 5 Chamber found no reas
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144 Chapter 5 has adopted a tone th
Page 158 and 159: 146 Chapter 6 However, with the adv
Page 160 and 161: 148 Chapter 6 2. 1 Africa-ICC relat
Page 162 and 163: 150 Chapter 6 national elections, c
Page 164 and 165: 152 Chapter 6 resolution may be ill
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Page 168 and 169: 156 Chapter 6 out of a desire to av
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Page 172 and 173: 160 Chapter 6 encourage countries o
Page 175 and 176: CHAPTER 7 1 Introduction THE TRIAL
Page 177 and 178: The trial of Mengistu and other Der
Page 197 and 198: CHAPTER 8 1 Introduction THE TRIAL
Page 199 and 200: The trial of Hissène Habré in Sen
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Page 211 and 212: 2 Genesis of the conflict Prosecuti
Page 213 and 214: Prosecuting international crimes by
Page 233 and 234: CHAPTER 10 1 Introduction GENOCIDE
Page 235 and 236: Genocide as prosecuted by the ICTR
Page 243: 8 Reparations Genocide as prosecute
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Page 248 and 249: 236 Chapter 11 piracy’. 14 In add
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246 Chapter 11 support us. They did
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CHAPTER 12 Benson 1 Introduction PO
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Positive complementarity and the fi
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278 Chapter 13 international crimin
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280 Chapter 13 Africa’s involveme
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282 Chapter 13 countries has tended
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284 Chapter 13 passed domesticating
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286 Chapter 13 crimes within their
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288 Chapter 13 offences. Procedural
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290 Chapter 13 Constitution, 62 thi
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292 Chapter 13 4.1.3 The law regula
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294 Chapter 13 either reciprocal or
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296 Chapter 13 committed to fightin
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298 Chapter 13 The procedure for th
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300 Chapter 13 trial. While the Rom
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302 Chapter 13 Having draft legisla
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CHAPTER 14 Lee 1 Introduction IMPLE
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Implementation of the Rome Statute
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Books SELECTED BIBLIOGRAPHY Allen,
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Selected bibliography 333 Neier A (
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Selected bibliography 335 Chitiyo,
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Selected bibliography 337 Jalloh, C
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Selected bibliography 339 Roht-Arri
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Selected bibliography 341 Report on
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Table of cases 343 Right of Passage
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Table of cases 345 Prosecutor v Vas
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Table of cases 347 Muhimana v Prose
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Table of cases 349 Prosecutor v Rut
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Table of cases 351 and the Governme
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Table of cases 353 Prosecutor v Ses
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Table of cases 355 GAOR, 45th Sess.
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Table of cases 357 R v Bow Street M
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360 Subject index Domestication ...
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362 Subject index S Selective justi
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