Will ICC Prosecutions Threaten Ugandan Peace Process?

Monday, 28 November, 2005

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Waldimar Pelser

Now that the newly-established International Criminal Court has issued its first arrest warrants, critics are warning that the threat of prosecution could jeopardise the prospects for peace in Uganda.

William Swing, head of the United Nations mission in the Democratic Republic of Congo, DRC, announced on October 6 that the International Criminal Court, ICC, had issued its first arrest warrant.

The warrant names Joseph Kony, the leader of northern Uganda’s Lord's Resistance Army, LRA, and four of his commanders.

The LRA, whose leaders say their philosophy is based on the Bible’s Ten Commandments and which aims to depose Ugandan president Yoweri Museveni, has particularly targeted children throughout its 19-year war, conscripting boys to fight and forcing girls to become sex slaves for its commanders. Relief agencies estimate that more than 20,000 children have been abducted across northern Uganda.

“Children are either being abducted or killed and raped by the LRA in northern Uganda,” said the United Nations Children’s Fund representative in Uganda, Martin Mugwanja.

Future child soldiers are ritually inducted into the LRA by being forced to kill other captured children.

Neighbouring Sudan, itself the subject of an ICC investigation concerning alleged crimes against humanity in the Darfur region, immediately expressed what sounded like support for the first prosecution initiative.

The newly-appointed vice-president Salva Kiir Mayardit, a southern Sudanese Christian, vowed that if Kony was caught inside Sudanm he would be handed over to the ICC. For nearly two decades, the LRA was allowed to operate from bases in Sudan by the previous Arab-dominated Islamic government.

As the world's only permanent, independent tribunal mandated to prosecute those suspected of genocide, war crimes and crimes against humanity, the ICC seemed at last to be kicking into gear. The Hague court, born of an awkward union between realpolitik and lofty ideals about global justice, had suddenly won credibility.

The court is also looking at cases in other African countries where it might bring indictments. In Johannesburg, a senior ICC official said in August that the court is seeking to establish offices in Chad to advance its attempts to investigate the Darfur case, as a direct result of a referral by the United Nations Security Council. Meanwhile, ICC investigators are also at work in the DRC, steadily dissecting allegations of what they term "thousands of deaths by mass murder and summary execution since 2002".

On paper, the court in The Hague enjoys wide support - 99 countries, 27 of them African, have ratified the 1998 Rome Statute, the voluminous and contested document underpinning the ICC which entered into force in 2002. Another African country, Morocco, has been urged by the Coalition for the International Criminal Court, an independent pressure group, to become number 100.

But the court faces tough resistance. The United States opposes it, and has cut military aid to dozens of ICC signatories, including South Africa, who refuse to enter into bilateral agreements with Washington that would shield American military servicemen from prosecution by the court.

On the ground in Gulu, a town in Uganda's north with fresh memories of atrocities by both the LRA and the Ugandan army, some are asking whether the time is really right to mount a prosecution attempt against Kony and his men.

A day after Swing announced the arrest warrant, Uganda's Roman Catholic Church warned that the threat of legal action could put the peace process in the north at risk.

Catholic Archbishop John Baptist Odama, himself from northern Uganda, told the French news agency AFP that the ICC’s move could deter LRA rebels from participating in a local attempt to negotiate a settlement that would end the conflict.

“The peace process has been put in jeopardy,” said Odama, who also chairs the Acholi Religious Leaders' Peace Initiative, a mediation team centred on the Acholi, northern Uganda’s biggest tribe and the main target of the LRA’s murderous raids. “We all thought that the [local] peace process was the only avenue to yield real fruits, but it seems it has not been given enough time.

“We do not question the existence of the ICC or its principles. However, we do feel that the presence of the court here and its activities are in danger of jeopardising efforts to rebuild the rebels’ confidence in peace talks. How can we tell the LRA soldiers to come out of the bush and receive amnesty when at the same time the threat of arrest by the ICC hangs over their heads?”

The archbishop and several other high profile leaders from the Acholi, as well as from the Langi, Iteso and Madi tribes who are also targeted by the LRA, visited The Hague in April this year.

At an IWPR seminar on the ICC in Johannesburg, Ugandan radio journalist Opio Stephen George echoed Odama's caution. George's Mega FM station has been broadcasting testimonies by former LRA fighters in which they invite other rebels to stop fighting, come out of the bush, and re-enter communities some of them had earlier helped tear apart.

In a ritual ceremony involving a cracked egg, returnees are symbolically enabled to return to their communities, thanks to an indigenous model of justice which favours reconciliation and forgiveness over retribution.

"Why not delay ICC prosecutions until we know all other processes have failed?" asked George. “It's not the right time for the ICC.”

But the court, accused in a recent report by the New York-based watchdog Human Rights Watch of "failing to effectively communicate its mandate to the people of northern Uganda, thus losing credibility and impartiality", is trying to fight the notion that western and African models justice cannot coexist constructively.

"There is a role for traditional justice," said Phakiso Mochochoko, senior legal adviser in the court's registry in The Hague. "But is it suitable for some crimes, like genocide?"

While Mochochoko admitted that traditional forms of justice do "work for smaller crimes and junior officials", he rejected any suggestion that those whose leadership inspired genocide should have the option of offering an admission of guilt in exchange for forgiveness, and thus get off scot-free.

To some, Rwanda offers an example of how models of justice can be tailored to suit the crime - and the criminal - and why the ICC should be seen as neither a panacea nor a waste of time.

Ordinary men and women suspected of participation in the 1994 slaughter of some 800,000 Rwandans are appearing before some 10,000 “gacaca” courts, open-air forums at which victims, those accused of being “génocidaires”, and eyewitnesses try to establish the truth about what happened, in the hope of healing scarred communities. A Rwandan government official has told Reuters that just over a million people, an eighth of the population, could eventually be tried in this way.

However, justice is also meted by Rwanda’s national courts, which prosecute the alleged ringleaders, and by the UN's International Criminal Tribunal for Rwanda in the northern Tanzanian town of Arusha, which deals with a smaller number representing the most senior figures implicated in the killings.

In a speech delivered at the University of Oxford commemorating the tenth anniversary of the Rwandan genocide, retired Justice Hassan Jallow, a Gambia-born prosecutor at Arusha, insisted it was unfair to assert that only the "traditional" justice of the gacaca courts contributes to reconciliation.

Jallow insisted that the roles of higher tribunals like the Rwandan tribunal and the ICC are not purely punitive. The Arusha court "contributes to reconciliation by establishing truth and creating a historical record of how and when the perpetrators committed acts, thereby curbing denials and revisionism", he said. "The prosecution of selected perpetrators avoids ascribing collective guilt to the group from which the perpetrators came."

Although the ICC’s Mochochoko is sympathetic to attempts made in Uganda and Rwanda to use traditional justice as a tool for healing and peace, his message - and that of the ICC in Uganda - is that for some individuals, "no safe haven should exist".

Waldimar Pelser is a South African Rhodes Scholar and senior reporter at Beeld, a Johannesburg-based daily newspaper.