Between International Justice and Domestic Peace: the
Dilemma of the ICC in Northern Uganda
Ejoyi M.C. Xavier
Visiting Fellow, International Centre for Transitional Justice
Northern Uganda has been embroiled in a civil war between the
rebel group Lord’s Resistance Army (LRA) and the Uganda People’s
Defence Forces (UPDF) since 1986. Needless to say the level of
humanitarian catastrophe has been alarming in the nineteen years
of war. The war has ravaged villages, spawned child soldiers,
made widows and orphans.
An estimated one
and a half million displaced people live in squalid conditions
in innumerable camps. Varied approaches have been implemented
to bring about stability to the region ranging from peace negotiations,
establishment of a national Amnesty Commission and an enduring
military campaign. The International Criminal Court of Justice
(ICC) has been the latest intervention and the one which has created
the most impact.
The peace process
has been largely pioneered by Betty Bigombe, former Minister for
pacification of Northern Uganda. She first established contact
with the LRA leadership in 1994 however, her efforts to negotiate
a ceasefire were short-lived owing to reciprocal suspicion from
the belligerents. In 1998, the Protestant, Catholic and Islamic
leaders in the conflict zone formed the Acholi Religious Leaders
Peace Initiative (ARLPI) to campaign for a peaceful resolution
of the conflict. At the risk of being labeled rebel collaborators
and government spies the clergymen have been instrumental in establishing
contact with the LRA leadership and have successfully lobbied
for the enactment of the Amnesty Act in 2000.
Under the Amnesty
Law, rebels who denounce violence and report to the authorities
are pardoned. Ordinarily, International Human Rights Law cannot
be constrained by a national amnesty which amounts to the failure
of the State to honor its international commitments. However,
given that the rebellion thrives on the use of abducted children
made to fight against their will, the amnesty in principle is
a plausible undertaking although there are serious flaws in its
implementation.
The Law had a
time span of six months, but this has been since extended twice.
With an ongoing war, a perpetual amnesty policy is not sustainable
and may exacerbate the conflict, especially if the rebels are
aware that no matter how vile their methods, an amnesty awaits
them. The Government has continued to pursue a military strategy
of defeating the rebellion, an approach that compromises the spirit
and rationale of the amnesty process. Any workable amnesty in
Northern Uganda should be grounded in a comprehensive peace agreement
rather than be administered in a piecemeal fashion. Amnesty in
this case is a futile exercise as it is susceptible to abuse by
both parties-the LRA for perpetuating the conflict and the Government
for using it as a political tool.
In December 2003,
President Yoweri Museveni decided to refer the situation in Northern
Uganda to the International Criminal Court (ICC) for possible
investigation of war crimes and crimes against humanity. Created
in 2002 by the Rome Statute enacted by the member states, the
ICC is a global resolve against human rights violations and mass
atrocity in conflict. Seeking to end the era of impunity, the
Court has jurisdiction over criminal prosecution of war crimes,
genocide and crimes against humanity.
Uganda is among
98 States party to the Rome Statute and has used this opportunity
to refer the conflict to the ICC. The government of Uganda was
to provide a ground breaking entry point for the ICC to assert
its influence on the world stage. Given the scale and magnitude
of atrocities committed by the LRA on innocent civilians, the
necessity of the ICC prosecution seemed a foregone conclusion.
No one in their sound mind would ever deny that the perpetrators
of such heinous crimes deserve accountability and punishment for
their actions, not just a ritual fair trial. It is not only fair
for the victims to demand justice due to them in court, but is
also important so as to restore the sanctity of human rights.
The invitation
of the ICC to Northern Uganda has been received with mixed feelings.
Many relief and civil society organisations working in Northern
Uganda have questioned the rationale of the ICCs intervention
in an ongoing war. Such criticism is justified but a rejection
of the role of the ICC in entirety is shortsighted. Judicial minimum
of a fair trial and due process which include witness protection
will be undermined should the trials be undertaken in an environment
of fear and suspicion.
Secondly, considering
the nature of combatants in the war, what remains unanswered is
who will appear in the dock. The conflict has largely been a childrens
war. It is estimated that 20,000 children have been abducted and
forced into the LRA ranks and made to commit atrocities defying
their age and free will. In this regard, the children are not
only perpetrators but also victims of the war. The Rome Statute
exempts minors from prosecution. In fact, a pun in Uganda says
that the ICC should now stand for International Childrens
Court.
However, the exemption
of children on moral grounds will not stop us from asking questions.
What justice is this to the victims of the child soldiers? Are
the victims not entitled to justice, be it redress or prosecution?
Here it is also generously assumed that childhood is a permanent
attribute. The same individuals who joined the rebellion as children
maybe some fifteen-twenty years ago maybe now serve in commanding
positions. What decision does the ICC hold for such perpetrators?
Since the precedent
of prosecuting perpetrators of war crimes and genocide was set
in Nuremberg sixty years ago, international tribunals have been
limited to prosecution of the most responsible individuals. The
principle of who is at the top has served as a guide to determine
the responsibility for crimes against humanity. This model will
most certainly be adopted for Northern Uganda more for convenience
and practical The notion that justice ends with the prosecution
of a handful of commanders is particularly flawed, pointing to
the limits of trials. Faced with a hostile public opinion in Uganda,
the ICC seems to have rescinded its initial euphoria of wanting
to commence investigations of the LRA. The chief prosecutor has
been pushed hard to concede that it is not in the interest of
justice to investigate war crimes amidst the war. Following a
visit to the Hague by a delegation of local, traditional and religious
leaders from Northern Uganda, he has suspended the investigations
pending the peace process.
Finally, it is
perhaps the ambivalence of the ICC on the scope of accused that
is poised to undermine its independence in Northern Uganda. The
barbarity and crimes committed by the LRA speaks for itself. But
there are two parties to the conflict in Northern Uganda. The
UPDF has been accused by rights groups of orchestrating violence
against innocent civilians; an accusation state officials have
vehemently denied. The UPDF qualifies to be investigated by the
ICC on two grounds; first for failing to protect civilians from
rebels and worst of all for committing acts of rape, torture and
forced recruitment of former rebels as alleged by Human Rights
Watch. Whether the ICC will assert its mandate and investigate
these allegations in a free and fair way remains to be seen.
The dilemma facing
the ICC in Northern Uganda is the one that illustrates the tension
that exists between the national peace processes and an international
criminal process. Each of the approaches has its own shortcomings,
but yet are mutually reinforcing. The scale of the atrocity and
humanitarian disaster calls for prosecution of the perpetrators
of such crimes. Yet we also know from history and experience elsewhere
that even with the worlds resources at disposal, trials
in situations of mass atrocity still remain inadequate. Other
approaches, traditional and non-judicial, should be explored to
complement the work of the ICC in Northern Uganda. A proper sequencing
of these approaches may actually hold the key to resolving the
apparent tension between international justice and domestic peace
processes.