The first arrest warrants issued by the International Criminal Court concerned the Situation in Uganda, and resulted from the self-referral by the Government of Uganda in December 2004. These arrest warrants, issued more than three year ago (first under seal, then publicly), have never actually been executed, and it is reported that probably two of the five suspects are now dead. In the meantime there have been significant developments in the Ugandan peace process. On 21 October 2008, the Pre-Trial Chamber responsible for the Situation in Uganda made an order under article 19(1) of the Rome Statute in which it decided to examine the admissibility of the cases: http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-320-ENG.pdf. This is the first time such a proceeding has ever been taken.
When it issued the arrest warrants in 2005, Pre-Trial Chamber II said that the cases appeared to be admissible, but made no detailed examination of the matter. In its order of 21 October 2008, the Pre-Trial Chamber points to political agreements that are part of the peace process, including their call for the establishment of special judicial mechanisms aimed at dealing with atrocities.
Of some note is a reference in the decision to the Appeals Chamber decision of July 2006, discussed in the previous entry in this blog. The Pre-Trial Chamber cites the Appeals Chamber as authority for its right to consider the issue of admissibility on its own motion.
What I am unclear about is where this all leads? If the Pre-Trial Chamber concludes that the cases are still admissible, it doesn’t advance things very much. It might just as well have ignored the issue. If, on the other hand, it concludes they are not admissible, what happens next? Article 58(4) says: ‘The warrant of arrest shall remain in effect until otherwise ordered by the Court.’ But this looks rather like the Pre-Trial Chamber considering an appeal of its own earlier decision to issue an arrest warrant. It is not obvious to me that it has the authority to do this under the Rome Statute, nor that it is wise for it to do this as a matter of judicial policy.