Between International Justice and Domestic Peace: the Dilemma of the ICC in Northern Uganda

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 ICC’s 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 children’s 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 Children’s 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 world’s 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.