Institute for War and Peace Reporting | Giving Voice, Driving Change

World Court Faces Biggest Challenge

New peace initiative for northern Uganda highlights divisions over the International Criminal Court’s attempt to arrest rebel leader Joseph Kony.
A few clicks on the website of the international police organisation Interpol, and you find three pictures of Ugandan rebel leader Joseph Kony, the latest one taken from a rare video only a few weeks old. His face has not changed a lot from the first black and white image to the most current one, in which Kony wears a green uniform with red epaulettes and a jaunty beret on his head.

A new agreement with Interpol to post images of Kony and four of his senior commanders on the web is the latest sign of the International Criminal Court, ICC, prosecutor’s resolve to see leaders of the Lord's Resistance Army, LRA, brought to The Hague to face justice.

The international arrest warrants issued last October against Kony and his four associates were the first the four-year-old court had brought.

According to the prosecution, the LRA leaders "established a pattern of brutalisation of civilians by acts including murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements". They are alleged to have forcibly recruited civilians, including children, to serve as combatants, porters and sex slaves and "to take part in attacks against the Ugandan army (UPDF) and civilian communities".

LRA forces are believed to have abducted some 25,000 children to become fighters or sex slaves.

Kony faces 33 counts of war crimes and crimes against humanity.

For human rights groups which have long tracked the misery caused by LRA activity in northern Uganda – where nearly two million people have been displaced from their homes and are reliant on food handouts – the more Kony is isolated, the better.

"They go from being individuals associated with evil acts to becoming indicted war criminals" said Richard Dicker, director of Human Rights Watch's International Justice Programme. "This isolates and undercuts their support."

Prominent rights groups including Human Rights Watch, Amnesty International and others are fully supportive of ICC chief prosecutor Luis Moreno Ocampo's efforts to put Kony and the others on trial and help bring an end to the cycle of violence in northern Uganda which has claimed countless thousands of lives in the past 20 years.

But there are other voices calling for Kony to be given one last chance.

In the video footage filmed on May 2, the LRA chief - seen for the first time in many years - launched a bid to negotiate a peace deal. Also appearing on the tape shot near the border between southwestern Sudan and the north-east of the Democratic Republic of Congo, DRC, was Riek Machar, the vice-president of southern Sudan’s autonomous government, who offered to broker talks between the Ugandan government and the rebels.

In the video, Kony said, "The LRA is ready to talk peace and end the war in a good way, not by force. We are fighting for peace and I am not a terrorist."

The Kony case presents the ICC with one of its toughest challenges to date, as it must weigh the merits of seeking accountability for chronic human rights abuses against the broader, and somewhat different, goal of ending the conflict that has given rise to these abuses.

The dilemma goes to the heart of the court's own rules, which suggest that the chief prosecutor can decide not to initiate a prosecution "in the interest of justice".

How far, then, should the ICC proceed on the LRA case if justice is going to get in the way of peace?

American lawyer Jonathan Edelstein, an expert on transitional justice issues, recently wrote, "Prosecuting five [LRA] militia commanders, despite their atrocities, is trivial in comparison to ending a war that affects millions of people, and the ICC should follow the lead of the peacemakers rather than trying to override their efforts."

Northern Ugandan religious leaders and peace negotiator Betty Bigombe, a politician and former international diplomat, have been calling for the ICC to back off in order to give local peace initiatives, based on traditional reconciliation methods, a chance to end the war. The religious leaders, including local Roman Catholic Archbishop John Baptist Odama, allege that the ICC's decision to get involved in northern Uganda's tragedy has undermined their own efforts to build the rebels' confidence in peace talks.

What is new about the current effort to make peace in northern Uganda is the involvement of the government of southern Sudan. Diplomats in the region say that now that the southern Sudanese have their own government - part of the recent peace deal to end the 22-year long war in that country - there is a "completely new element in this process, which might successfully push [the Ugandan authorities] into peace talks".

Over the years, the LRA have been successfully pushed out of their camps in northern Uganda, although they continue to mount raids there, and now maintain bases in the vast wildernesses of southern Sudan.

Some of the rebel force has crossed over into the war-torn Ituri region in the north-east of DRC. In Ituri, and the Kivu and Katanga regions further south, the Congolese army backed by a United Nations peacekeeping mission, is harrying a variety of militia groups, including the LRA, in advance of elections in July. But with vast areas of rainforest to hide in, success has been limited so far.

From the outset, the ICC prosecution team has always known that it must rely on national authorities to execute the arrest warrants it issues. Under the 1998 Rome statute which governs the court’s rules, the ICC has no police force of its own.

"Arresting Kony and the LRA leaders is the biggest challenge for the Rome statute," said Moreno Ocampo.

Human Rights Watch's Dicker agreed, saying, "Cooperation by states with the ICC in everything from access to documents and evidence to ultimately the arrest of the accused is potentially the Achilles heel [of the Rome statute]."

In a statement to the United Nations Security Council in New York on June 14 on the situation in Sudan 's Darfur region - the site of another ICC war crimes investigation – Moreno Ocampo stressed that cooperation by the Sudanese state is "essential to complete the investigation".

The same applies to all ICC investigations. And, unlike the temporary UN-backed tribunals for Rwanda and Yugoslavia, which do not have police forces, either, and have faced problems in tracking and detaining indictees, the ICC has no Security Council backing to provide even the threat of sanctions against uncooperative states.

Moreno Ocampo acknowledged that "it's a complicated situation", in a recent briefing to journalists in The Hague at which he tried to explain why several national armies have failed to capture Kony and his colleagues.

"The political will is there, not the capacity," said Dicker.

Both Uganda and the DRC are fully signed-up members of the ICC. However, Sudan is not – and therefore does not have the same legal obligation to arrest the LRA leaders. However, the ICC prosecutor's office confirmed to IWPR that in October 2005, the authorities in Khartoum signed an agreement with the court to "proactively try to arrest Kony and the others".

Whether that memorandum of understanding constitutes "a real obligation that is in any way comparable to signing up to the Rome statute" is questionable, according to a senior diplomat based in Kampala, the Ugandan capital.

In a further convolution in this complicated region, he pointed out that the deal was signed by the national government in Khartoum, not by the newly-formed devolved government in the capital of southern Sudan, Juba, although the southern Sudanese are also part of the Khartoum government under a recent peace deal.

The key role being played by Juba authorities was illustrated by the presence of Machar on the May video, which showed the first images of Kony to have appeared for many years. Machar was seen handing over food aid and 20,000 US dollars in cash and warning Kony not to spend it on arms. The vice-president said the aid was part of an agreement the LRA had made with the government in Juba to halt attacks in southern Sudan.

Church groups say the southern Sudanese authorities are very concerned about the lack of security in their region, which has been exacerbated by LRA raids on villages for supplies. The problem is compounded by the presence of thousands of Ugandan troops who have been permitted to cross the border to try to track down the LRA leaders, under an earlier agreement signed between Kampala and Khartoum.

The ICC prosecutor has argued that since the time that the arrest warrants were issued, Kony and his supporters have come under "escalating international and regional pressure". In an article for the International Herald Tribune, Moreno Ocampo said, "The LRA commanders have been forced to flee their safe havens. LRA attacks in northern Uganda have declined dramatically as a result."

Dennis Ojwee, veteran bureau chief for the Uganda government-owned New Vision newspaper in the northern town of Gulu, agrees that the arrest warrant is one of the factors that may have kept the LRA quiet. Other LRA commanders who have not been indicted, he says, may be wary of "committing atrocities and havoc since they might fear being listed by the ICC".

In northern Uganda, religious leaders have complained about the timing of the Interpol notices, when local efforts to resolve the conflict peacefully are gaining momentum. Pax Christi Netherlands, a Christian group with many years’ experience working on the issue, told IWPR it had received formal requests from both the southern Sudanese government and from Kony to play a mediating role.

Egbert Wesselink of Pax Christi described it as a "very fragile process" where there is still a lot to be agreed.

"Imagine all the steps – a venue, safety, composition of delegations and making sure they have the appropriate mandates," said Wesselink. He noted that his organisation had "no golden formula, no blueprint" to impose, but that "an element of justice" will necessarily be part of any final package.

Wesselink confirmed that none of the senior LRA leaders facing arrest warrants would be acceptable as members of a negotiating delegation. "We could not be responsible for that," he said.

Pax Christi says it believes what is needed is "justice in the eyes of the victims", which may not entail "a strict legal approach".

However, Tim Allen, a London-based anthropologist who has written a new book called Trial Justice: The International Criminal Court and the Lord's Resistance Army, and who has met Kony recently, said the rebels "have been getting very good legal advice" because they know that realistically they will have to face a legal process.

Nevertheless, Wesselink, while describing the ICC as "the cornerstone of architecture for global peace and justice", was critical of the court’s response so far to the news of a potential locally-brokered peace deal.

He called on the prosecutor to acknowledge that the wider goal was to achieve peace, and to temper the ICC’s tactics accordingly. "The ICC has put itself in a corner," he said. "Their defensive narrow definition of justice will not strengthen their role."

In his latest comments the prosecutor does seem to have shifted position to some degree. He told journalists at UN headquarters in News York, "It is very important to have negotiations to finalise, to stop the situation."

But he reiterated, "The five guys who were identified in the warrants need to be arrested."

Other observers in northern Uganda have expressed scepticism that the peace deal offered by Kony is viable.

"I know Kony has not changed at all,” said Ojwee. “He is just, as usual, trying to buy time to possibly ferry in safely some ammunition he could have got from the DRC."

Moreno Ocampo has also pointed out that Kony has "used negotiations to buy time and regroup" in the past.

Even seasoned peace campaigners like Father Carlos Rodriguez, a Catholic priest based in Gulu, has said, "When you see the same thing for many times… you don't receive it with the excitement one would expect."

Pax Christi, however, insists there is now a real opportunity for peace through the local initiative. "Kony himself has said he has had a vision that 2006 is the year of peace," said Wesselink.

Diplomats in Kampala agree that the May video may show a different side to Kony. The footage has "demystified" him and proved that "the LRA can be a negotiating partner", said one diplomat. "Kony doesn't have many options and therefore he wants to talk."

Right from the start, back in December 2003, when Uganda's President Yoweri Museveni invited the ICC prosecutor to investigate the situation in northern Uganda – the first time any country had referred a case to the fledging institution – officials in The Hague have been conscious of the tightrope that they have had to walk. There has been a sustained barrage of comment and criticism from groups in northern Uganda who believe a local peace settlement, using the elaborate ceremonies of the local Acholi people, takes priority over the interests of international justice.

The prosecutor's office has engaged with many of these groups. Moreno Ocampo explained to journalists in The Hague that his investigators began their work in northern Uganda "making no noise" out of respect for local groups trying to negotiate a peace deal with Kony.

But after nine months of investigation, said the prosecutor, "we had lots of evidence: more than 20 insiders… and many intercepts with the voices of the commanders".

He added, "We have a very good legal case."

Some legal observers have since argued that the prosecutor could decide "in the interests of justice" – as outlined in the Rome statute – that the case against the LRA leaders could be withdrawn.

The relevant paragraph of Article 53 says, "The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information."

But David Donat Cattin, an Italian expert in international law who was closely involved in writing the Rome statute, said the relevant article was “a narrow concept…full of checks and balances” which deliberately did not mention possible impunity or amnesties. He pointed out that the prosecutor has to argue his recommendations before the ICC judges, who make the final decisions.

That chimes with the prosecutor's official position that the process has already gone beyond the point at which he could drop the investigation, as arrest warrants have already been issued.

"The defendants could challenge the admissibility of the arrest warrants," Moreno Ocampo told journalists. "But the prosecutor can do nothing. The case is in the hands of the judges."

President Museveni responded to the Kony video by giving the LRA 60 days, until July this year, to "peacefully end terrorism".

He went on to say that, despite the ICC arrest warrants, "if he [Kony] got serious about a peaceful settlement, the government of Uganda would guarantee him safety".

But Dicker believes that to allow Museveni to assume such a role would be very damaging. "For the credibility and legitimacy of the ICC, it should be understood that the president of Uganda cannot turn the court on and off," he said.

Ojwee cast doubts on whether any indigenous peace deal, traditional or government-inspired, is really on the cards. He described all such efforts so far as "a real waste of time and resources at the expense of the people suffering in the [internal refugee] camps".

He added, "If the government continues to accept peace jokes from Kony, the war might drag on for 20 decades."

Janet Anderson is director of IWPR’s International Justice Programme in The Hague.