Uganda’s decision ‘In the Matter of an Arrest Warrant and the Surrender to the International Criminal Court (ICC) of Omar Hassan Ahmed al-Bashir’: Explanation, issues and consequences
| Author | Apuuli, K.P. |
| DOI | https://doi.org/10.47348/AYIH/2021/a6 |
| Published date | 15 December 2022 |
| Date | 15 December 2022 |
| Pages | 150-173 |
150
https://doi.org/10.47348/AYIH/2021/a6
Uganda’s decision ‘In the Matter of
an Arrest Warrant and the Surrender
to the International Criminal Court
(ICC) of Omar Hassan Ahmed al-
Bashir’: Explanation, issues and
consequences
Kasaija Phillip Apuuli*
Abstract
On 19 December 2019, High Court Justice Peter Adonyo issued a wa rrant of
arrest for former Sudan P resident Omar al-Bashir should he ever set foot in
Uganda or in a territory controlled b y Uganda. He also held that by failing
to arrest and sur render al-Bashir on t wo occasions in 2016 and 2017, in
fullment of t he warrants of arrest is sued by the International Cri minal
Court (ICC) in 2 009 and 2010, Uganda had breached its own International
Criminal C ourt Act (2010), the Rome Statute (1998) and United Nations
Security C ouncil Resolution 1593 (2005). This contribution dis cusses the
judgment by considering the context of Uganda’s failu re to meet its legal
obligations with regard to the ICC ’s arrest warrants agai nst al-Bashir. It
then discusse s the future of Uganda’s arrest wa rrant against al-Ba shir,
and the court’s clar ication of the superiority of Un ited Nations (UN)
decisions over those of the Af rican Union (AU).
Keywords: Adonyo, al-Bashir, arrest warrant, International Criminal
Court (ICC), Uganda, Uganda Victims Foundation (U VF)
1 INTRODUCTION
On 19 December 2019, the outgoing head of the International Crimes
Division (ICD) of the High Court, Justice Peter Adonyo,1 considered
* LLM, DPhil (Unive rsity of Sussex); Associate Professor, Depar tment of Political
Science and Public Ad ministration, Make rere University, Kampala, Uganda.
Email: apuulik@gmail.com/phillip.kasaija@mak.ac.ug. I particularly would
like to thank Solomon Muy ita, former spokesperson of the Ugandan judicia ry,
who helped me with conducti ng research for this cont ribution. I am also
grateful to the t wo anonymous reviewers who made con structive comments
on the draft. A ll remaining mistakes a re my own.
1 In a reshufe on 12 December 2019, Justice Adonyo was made head of the Com-
mercial Division of t he High Court. Se e G Okello ‘Full List! Pr incipal Judge
(2021) African Yearbook on International Humanitarian Law 150
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AL-BASHIR ARREST WARRANT CASE: EXPLANATION, ISSUES
AND CONSEQUENCES 151
https://doi.org/10.47348/AYIH/2021/a6
two issues: rst, whether an arrest wa rrant issued by the ICC could be
effected against Omar H assan Ahmad al-Bashi r whenever he enters
Uganda or territory which is under the control of Uganda; and second,
whether the failure and/or refusal by Uganda to take steps to ar rest and
surrender al-Bashi r to the ICC on the occasion of his previous visits to
Uganda on 12 May 2016, and between 13 and 16 November 2017, was
inconsistent with and in violation of sections 2(a), (b) and (e), and 17(2)
of the International Crimina l Court Act of 2010 (ICC Act), Article 89(1)
(a) of the Rome Statute and United Nations Security C ouncil Resolution
1593 of 2005.2 Uganda signed the Rome Statute on 17 March 1999,
and ratied it on 14 June 2002. The country fu rther domesticated the
Statute through the ICC Act, which contains provisions that set out
obligations for close co-operation with the ICC regardi ng the arrest
and surrender of persons for whom arrest wa rrants have been issued.
In the end, Justice Adonyo ruled that the arrest war rants issued
by the ICC against al-Bashir m ust be implemented by the state of
Uganda through the clear processes laid down in t he Rome Statute
as domesticated by the ICC Act; that for the avoidance of any doubt,
a warrant of arrest was issue d against al-Bashir whenever he enters
Uganda or territory under the control of Uganda; that the respondents
(the Attorney-General and the Minister of Justice and Constitutional
Affairs) were orde red to effect t he warrants of arrest ( both the ICC’s
and Uganda’s) when and whenever al-Bashir enters Uganda or territory
under the control of Uganda; and that the failure and/or the refusal
by the respondents to take steps to arrest and surrender to the ICC
al-Bashir on the occasions of his v isits to Uganda on 12 May 2016 and
13 to 16 November 2017 was inconsistent with and in violation of the
ICC Act and the Rome Statute, and a breach of United Nations Security
Counci l Resolution 1593.3 Justice Adonyo ordered the state of Uganda
to pay the costs of the application.
deploys new judges, transfers 21 other s’ PML Daily 12 December 2019, available
at <https://ww w.pmldaily.com/news/2 019/12/full-list-pr incipal-judge -deploys-
new-judges-transfers -21-others.html> (access ed on 20 May 2022).
2 Uganda Victims Foundation v The Att orney General, and the Minister of Justice a nd
Constitutional Af fairs, High Court of Uganda (I nternational Crimes D ivision),
In the Matter of an Ar rest Warrant and the Sur render to the International
Criminal C ourt of Omar Hassan Ahmed A l Bashir, High Cour t Miscellaneous
Criminal A pplication No 0006/2017, 19 December 2019 (unreported) available
at <https://chapterfou ruganda.org /sites/default/les/downlo ads/Uganda-Vic
tims-Fou ndation-v-Attorney- General-% 26-Anor-- -HC-%28IC D%29-MIS C-
CRIM-APPLIC-No.-0006%3A2017.pdf> (accessed on 15 May 2022). See also UN
Security Council, Resolution 1593 (2005) Adopted by the Secur ity Council at
its 5158th meeting, 31 March 200 5, S/RES/1593 (2005), available at <https://
documents-dds-ny.un.org/doc/UNDOC/GEN/N05/292/73/PDF/N0529273.
pdf?Open Element> (accessed on 30 August 2022).
3 Uganda Victims Foundation v The Att orney General ibid.
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