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| February 25, 2008 |
| The Uganda-LRA War Crimes Agreement and the International Criminal Court UPDATED By Anthony Dworkin |
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On February 19, the government of Uganda and the Lord's Resistance Army rebel group announced they had reached agreement on a system of war crimes trials and other methods of accountability for atrocities committed during the country's long-running civil war. Both sides hailed the agreement as a significant breakthrough that removed a major obstacle to a final end to the conflict. The accord is also a significant development in the evolving debate over the role of the International Criminal Court in Uganda: the Court has issued arrest warrants against the leaders of the LRA, and the LRA has said that any peace agreement is conditional on an agreement from the Ugandan government that rebel leaders will not face trial before an international court. The war in northern Uganda began in 1986 and has been marked by the LRA's well-documented brutality against civilians, including the seizure of children to be used as fighters and sex slaves, and the widespread use of mutilation, cutting off the lips, ears, noses and limbs of victims. The violence has led to nearly two million people being displaced from their homes and being forced to live in refugee camps. Human rights groups have also reported war crimes by the government army, the Ugandan People's Defense Forces. The Ugandan president, Yoweri Museveni, referred the situation in northern Uganda to the International Criminal Court in December 2003. Two years later, the Court issued arrest warrants against the LRA leader Joseph Kony and four of his top commanders--the first warrants issued by the recently-established Court. In 2006, peace talks between the LRA and the government began in Juba, in South Sudan, and the ICC quickly became a central part of the negotiations. Rebel leaders insisted that they would not sign an agreement unless the risk of prosecution before the ICC was removed. The newly-concluded war crimes agreement takes the form of an annex to an earlier accord between Uganda and the LRA setting out a general framework for accountability and reconciliation. Under the agreement, the government will set up a special division of the High Court of Uganda to try "individuals who are alleged to have committed serious crimes during the conflict." The agreement also says that prosecutions "shall focus on individuals alleged to have planned or carried out widespread, systematic or serious attacks directed against civilians, or who are alleged to have committed grave breaches of the Geneva Conventions"--a form of words evidently intended to track the categories of crimes against humanity or the most serious war crimes (but which is also somewhat anomalous, given that the category of grave breaches is generally thought to apply only to international armed conflict, not to civil wars like that in northern Uganda). At the same time, alongside the special war crimes division of the High Court, the agreement also gives a prominent place to traditional justice. It says that the government "shall, in consultation with relevant interlocutors, examine the practice of traditional justice mechanisms in affected areas, with a view to identifying the most appropriate roles for such mechanisms." A government official, Ruth Nankabirwa, who is chairperson of the Peace Talks Support Committee, suggested the traditional justice system would deal with "small crimes" but the precise division between crimes that will be handled by the war crimes court and by traditional justice is not explicitly spelled out in the accord. In addition, the accord sets up a truth commision body, and mandates some form of reparations for victims of the conflict. Where does this agreement on a domestic system of accountability leave the International Criminal Court? The accord does not contain any explicit statement regarding the government's policy on the ICC arrest warrants, but there are a number of signs that the Ugandan government intends to argue that an international prosecution is no longer necessary or appropriate. The new agreement does contain, in its preamble, a reference to "the requirements of the Rome Statute of the International Criminal Court and in particular the principle of complementarity"--a suggestive formulation, since complementarity is the principle that the ICC should defer to domestic prosecutions where possible. In addition, Ms. Nankabirwa suggested that the agreement with the LRA meant that a prosecution before the ICC was no longer necessary: "First of all it is Uganda which approached the ICC to help in getting Kony and his commanders because Uganda could not reach Kony because he was outside Uganda’s jurisdiction. We are hoping that if Kony and his commanders decided to be subjected to DDR, demobilization, disarmament, and then reintegrate, that would mean that they would come out of the bush and come to Uganda, and then Uganda will now be in the position to get them. And we will have no problem in subjecting them through our judicial system. [The] ICC was created to fight impunity, and therefore the High Court of Uganda can exactly do that.” But once a case has been referred to the ICC by a country, that country does not have the power to take back the referral. Instead, the statute of the ICC assigns to the Court the power to decide on whether an investigation or prosecution should be continued. Under the "complementarity" provision, the Court cannot try a case which "is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." The statute allows either the defendants, or the state which would have jurisdiction, to challenge the admissibility of a case before the ICC--i.e. to argue that a genuine attempt to investigate and prosecute is underway within the country concerned. Uganda could therefore challenge the admissibility of the cases, but it would remain up to the ICC to decide whether the war crimes process underway in the country met the threshold of a genuine effort, as specified in the statute. Since the Ugandan war crimes process exists only on paper, it is far too early to suggest that the cases before the ICC should now be dropped. For his part, the Court's prosecutor, Luis Moreno-Ocampo said in a message to Reuters that his office "is very confident that the case for which warrants have been granted remains admissible." The prosecutor's office also said in a statement that it "is not a party to the peace process...The arrest warrants against the LRA commanders were issued by the court and remain in effect." Ultimately, if a credible war crimes court is established in Uganda, the ICC may decide to declare the case inadmissible. As the process develops, we can expect an increasing debate about the validity of the Ugandan system and the respective merits of domestic and international justice. The Ugandan case may be shaping up as an important test of how the complementarity rules are applied in practice. Already some commentators have argued that domestic trials are unlikely to be credible, while other organizations like Human Rights Watch (which said the agreement could be "a major step toward peace and justice for northern Uganda" if properly implemented) have been more positive. If the ICC does not defer to the Ugandan war crimes system by declaring the cases inadmissible, then Uganda will be obliged to hand the suspects over for trial in The Hague. Of course, it is possible that Uganda would simply ignore this obligation, or claim that it is unable to gain custody over the suspects (for instance if they remain outside Ugandan territory). But it seems unlikely that Uganda would want to ignore the arrest warrants, since the country has so far tried to position itself as a major supporter of the ICC (most notably, it has made a bid to host the Assembly of States Parties review meeting in 2010) and that effort would be undermined if it simply refused to act on its obligations to the Court. Already the agreement between the LRA and Uganda shows that the interplay between international justice and peace negotiations can be more complex than is sometimes recognised. As the peace negotiations got underway, there were calls to drop the ICC indictments on the grounds that they would prevent a successful outcome for the talks. Instead, it appears that the threat of international prosecutions has acted as a spur to put in place a domestic alternative; as that alternative takes shape, the continuing engagement of the ICC may keep up the pressure for the domestic war crimes process to be a genuine one.
UPDATE (March 13): In an interview with Associated Press on 11 March, Ugandan President Yoweri Museveni said that it was his government's intention to try the LRA rebels according to a system of traditional justice. Museveni said this decision had been made in accordance with the wishes of the community which had suffered most from the LRA's attacks. "They have been mainly tormenting people in one area and it is that community which asked us to use traditional justice," Museveni told AP. "What we have agreed with our people is that they should face traditional justice, which is more compensatory than a retributive system.'' According to AP, his comments referred to Joseph Kony and the other LRA leaders who have been indicted by the ICC. If followed through, Museveni's comments would put into question whether the war crimes tribunal envisaged in the February 19 accord will ever be established or hear any cases. As noted in the story above, the accord provided for both war crimes trials and traditional justice, and left unclear what criteria would be used for deciding which approach to follow in any particular case. In his interview with AP, Museveni suggested that the international community should accept traditional justice for the LRA leaders instead of a trial before the ICC out of respect for the wishes of the victims. "If that's what the community wants, then why would we insist'' on a trial in the Hague, Museveni is quoted as saying. As explained above, the decision on whether to declare the case inadmissible before the ICC would be taken by the Court itself, based on an assessment of whether Uganda is willing and able "genuinely to carry out the investigation or prosecution." The statute also lists a number of tests that the Court should use to determine whether a state is unwilling or unable to conduct a genuine prosecution, including whether "the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5." Other tests include whether there has been an "unjustified delay in the proceedings" which is inconsistent with an intent to bring the suspects to trial, or whether the proceedings are not being conducted "independently or impartially." It seems likely, if Uganda does wish to subject the LRA's leaders to traditional justice, that they will argue to the ICC that this decision has not been taken to shield them from justice but rather in respect for the wishes of the community. Such an argument would be enormously controversial within the international justice community, and it would pose a difficult and important challenge for the ICC as far as how the terms of its statute should be interpreted. Another option is that Museveni will seek the have the United Nations Security Council defer the Court's prosecution of the case for a year (renewable) as it has the power to do under the ICC statute. How well do Museveni's statements about the wishes of the local community accord with independent research? An extremely detailed study of attitudes in northern Uganda was recently completed by the Human Rights Center at UC Berkeley. It found a complex set of views about peace, accountability and trials, with support for different options apparently varying depending on the respondents' assumptions about how the peace process and accountability would interact. Thus 70% of respondents said they thought accountability was important, and 59% said it was important to have trials for LRA leaders. At the same time, however, respondents greatly preferred peace with amnesty to peace with trials, perhaps reflecting their attitudes about which was more likely to come about. When given the four options of peace with amnesty, peace with trials, peace with a truth commission and peace with traditional ceremonies, 51% chose amnesty, 14% trials, 25% truth commission and 8% traditional ceremonies. The low number of people choosing peace with traditional ceremonies casts some doubt on Museveni's claims, but it could also reflect a feeling when the survey was conducted that amnesties were most likely to bring peace (the survey was conducted from April to June 2007). When asked separately whether those responsible for abuses should participate in traditional ceremonies, 57% of respondents agreed.
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Related Chapters from Crimes of War: What the Public Should Know: Related Links: Human Rights Center University of California, Berkeley December 2007 Analysis of the Annex to the June 29 Agreement on Accountability and Reconciliation Human Rights Watch February 2008 Uganda: Rebels Will Face Trial at Home By David Stringer Associated Press, March 11, 2008 |
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