Uganda: ICC Policy Under Scrutiny

It has been a busy few months at the International Criminal Court, ICC. Judges announced in late January that the first-ever ICC case - against Congolese militia leader Thomas Lubanga Dyilo - could proceed to trial. One month later, prosecutors asked judges to issue summonses for two Sudanese accused of war crimes and crimes against humanity in Darfur.



On the ICC’s case in Uganda, however, things are rather quieter. Nearly two years after the court first issued arrest warrants for Joseph Kony and other senior members of the Lord’s Resistance Army, LRA - Vincent Otti, Okot Odhiambo and Dominic Ongwen - all four remain at large.



They’re accused of crimes against humanity, including enslavement, rape and murder as well as war crimes, such as intentionally directing attacks against civilians and enlisting child soldiers.



The ICC insists it has maintained a deliberately low public profile in Uganda so as not to be seen as interfering in the ongoing peace process, but the lack of arrests after so many months is a topic of debate in the international community.



“It’s puzzling,” admits Mark Ellis, executive director of the International Bar Association.



Talks are tentatively scheduled to resume in mid-April in the southern Sudanese capital of Juba. The on-off process of ending the 21-year-old conflict that has killed tens of thousands of civilians and displaced millions more began last July. With the help of southern Sudanese vice-president Riek Machar, a deal was signed in August but that expired in February amid conflict over the venue for the talks and the mediator.



Some of the rebels - including Kony, Otti and Odhiambo - crossed into the Democratic Republic of the Congo, DRC, some time ago. Others - possibly Ongwen - are in Sudan and recent reports have suggested that other LRA units could be moving towards the Central African Republic.



Without its own police force, the ICC must rely on others to make the arrests. Marieke Wierda, head of the prosecution programme at the International Centre for Transitional Justice, says some of the court’s recent efforts have been directed towards building a coalition to help it enforce the warrants.



“We can presume that there’s been a lot of diplomatic activity with countries that can help them,” said Wierda.



The court has a long-standing agreement with Sudan to assist with arrest efforts, though relations between the two have been strained since the recent announcement of possible ICC prosecutions there. Sudan refuses to hand over its citizens, says it wants to conduct its own war crimes trials, and has suggested it will stop cooperating with the ICC.



In DRC, at the request of the Office of the Prosecutor, OTP, the government has requested the aid of the UN mission MONUC in helping track down the LRA. In an update to the court last December, the OTP said it continues to receive reports of “good faith” efforts by MONUC to make the arrests but that recent elections there had been a higher priority.



This lack of obvious progress is frustrating for some.



Christopher Hall, senior legal adviser in Amnesty International’s international justice project, wonders why it is taking so long to arrest Kony and the others. He questions the wisdom of relying on MONUC troops and says all UN peacekeeping operations should be equipped with special law enforcement units to carry out such activities.



“There are experienced people who’ve done this,” said Hall. “It’s a question of political will and allocating a few dollars more for a proper team. I have no idea why they aren’t doing it.”



For its part, the ICC insists it remains committed to the arrests.



It says bringing the four LRA commanders - whom it blames for the worst atrocities in Uganda - to The Hague to face trial would help with a sustainable peace process and offer justice to the victims.



"The victims of crimes in northern Uganda have a right to peace,

security and justice,” said ICC chief prosecutor Luis Moreno-Ocampo.



“Sustainable peace requires accountability - it cannot be achieved at the price of impunity. This was the legal framework adopted by 120 states in 1998 when they created the ICC under Rome Statute. Regarding the situation of northern Uganda, the OTP believes that peace and justice must continue to work together within this legal framework.



“Arrest warrants have been issued against four LRA commanders who have committed atrocities and are still keeping abducted children under their command. As the obligations to give effect to the arrest warrants are outstanding and there continue to be reports that the LRA are currently regrouping and rearming, efforts to secure those arrests should be pursued."



Some commentators point out that the concept of moving any of the LRA leaders far away from Uganda, to a foreign prison where living conditions are better than for many at home, may be strange to many in northern Uganda.



And there are other options. Nick Grono, vice president for advocacy and operations at the International Crisis Group, says that if a peace deal is reached the UN Security Council could put prosecutions on hold for 12 months to see if the peace will hold.



“But that’s a temporary measure and they shouldn’t consider that until there is a peace deal in place,” he said.



There is also a provision in the Rome Statute that created the ICC for prosecutors themselves to put on hold or even suspend a case if they are satisfied that certain conditions have been met and that a genuine and effective process is in place to deal with alleged offenders.



That would likely involve a trial in a Ugandan court for the LRA leadership, something that Ellis doubts would be acceptable to the international community. Citing Serbia and Croatia, he says national trials can work, but in the case of Uganda he questions whether the country is capable, or even willing, to hold war crimes trials at home.



“I support national justice systems undertaking trials. It was one of the goals of the ICC when it was created,” he said. “In reality, as we’ve seen in Iraq, there are difficulties in having local and national courts undertake these trials. In a place like Uganda, it’s too early.”



Wierda says that there should at least be attempts to explore whether Kony would accept a national trial, where he would be able to argue his innocence. Others, however, say Kony is unlikely to agree to any deal that would see him in either a Ugandan or Hague courtroom.



Some who oppose the ICC and the concept of retributive justice say the Acholi ceremony of “mato oput” would be a more appropriate way of dealing with returning LRA fighters. During the ceremony, those who’ve committed crimes are welcomed back into their communities in an age-old purification and reconciliation ritual.



Grono, however, points out that Kony has said previously he has committed no crimes against the Acholi people. That’s a problem as a precondition for traditional justice ceremonies like the mato oput is for the accused to admit guilt and seek forgiveness.



Also, the mato oput has never been used for crimes of the gravity of which Kony and the other LRA commanders are accused.



One thing that appears not to be on the table is an amnesty for the LRA four. An amnesty deal signed in 2000 did apply to the LRA leadership but was subsequently amended to say the four were excluded. Last year, however, Uganda’s president, Yoweri Museveni, caused a storm of controversy when he appeared to offer an amnesty to the rebel leaders in exchange for peace.



Human rights activists were outraged, insisting that an amnesty for atrocities is no basis for a peace deal.



However, it seems Uganda has since had a change of heart and in recent months various government officials have assured the ICC of their commitment to the court and the prosecutions.



“The government assures the ICC and state parties that we are seeking a permanent solution to the violence that serves the need for peace and justice, compatible with our obligations under the Rome Statute,” wrote Ugandan ambassador Mirham Blaak in an October letter to the ICC’s registrar.



“Rest assured that Uganda will not condone impunity.”



Lisa Clifford is an IWPR reporter in The Hague.