Peace vs. Justice or Peace & Justice: The ICC in Northern Uganda

posted by Bill Burke-White

Does international criminal justice promote the settlement of on-going conflicts or does it, in contrast, stand in the way of peace agreements? This question has become one of the most pressing in the fields of international criminal law and transitional justice. The debate is perhaps best illustrated in Uganda where in mid-2006, after a twenty-year civil war, the Lords Resistance Army (LRA), a rebel group that plagued northern Uganda with twenty years of violence, has become engaged in the most serious peace negotiations to date. In the eyes of some at least, the International Criminal Court (ICC) indictments against the LRA now stand in the way of a final peace deal.

Having just returned from a second field research trip to Uganda to investigate this tension between peace and justice, I thought I would use this entry to offer some preliminary thoughts that are the subject of a current work in progress. Specifically, I want first to address briefly the nature of the ICC’s impact on the conflict and the peace talks and, second, to suggest a possible means of achieving both peace and justice in Uganda.

By way of background, in December 2003, Ugandan President Yoweri Museveni referred crimes committed in Northern Uganda to the ICC. Subsequent to the Ugandan referral and an investigation by the ICC, the Court returned indictments against five LRA leaders. Soon thereafter, in late June 2006, the LRA expressed willingness to engage in a new round of peace talks with the Ugandan government. This latest round of negotiations quickly came to appear far more promising than any of the previous efforts. However, the LRA leadership has repeatedly stated that the withdrawal of ICC indictments remains a prerequisite to ultimate settlement. In late June 2007, the Ugandan Government and the LRA reached an agreement laying out the principles of justice and accountability for settlement of the conflict, which contemplated domestic proceedings with alternative sentences and possibly even the use of traditional justice mechanisms. Despite the flexibility with respect to justice and accountability indicated in the agreement, almost to the day, the ICC Prosecutor took an extremely firm line in a major public address in Nuremberg, Germany, essentially excluding any possibility that his office would seek to have the warrants withdrawn. In the words of the Prosecutor: “for each situation in which the ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the Prosecution to use its discretionary powers to adjust to the situations on the ground. . . . These proposals are not consistent with the Rome Statute. They undermine the law that states committed to.”

As an initial matter, it is worth pointing out that even if the ICC Prosecutor wanted to drop the charges against the remaining leadership of the LRA (at least two LRA officials have died since the indictments were handed down) he lacks the power to do so. The Rome Statute allows for the withdrawal of an indictment if it is in the interests of justice to do so after taking into account the interests of victims. For that to happen, however, the Prosecutor must request that the Pre-Trial Chamber withdraw the warrants and it is the Pre-Trial Chamber alone that ultimately has the power to do so. Given the current state of the peace talks and the internal politics within the ICC, that seems highly unlikely.

Those who critique the role of the ICC in Uganda argue that the Court’s indictments decease the utility of settlement for the LRA by ruling out the possibility of amnesty through the assurance of international prosecution. They claim that indicted rebels will be unwilling to settle if they know that, whatever the terms of the ultimate settlement, they will be hauled before the ICC. In fact, Joseph Kony, the LRA leader, often cites the experiences of Charles Taylor and Slobodan Milosevic as emblematic of the dangers of settlement in the face of international criminal prosecution. If this decrease to the utility of settlement were the ICC’s only effect on rebel movements, this claim might well be correct; the ICC might well be standing in the way of settlement and a choice would have to be made between peace and justice.

In fact, however, the ICC has a number of other impacts on the propensity of rebels to settle a conflict that suggests that the Court’s ultimate impact may be indeterminate and that it may not be necessary to choose between peace and justice. First, just as the ICC decreases the utility of settlement, it also decreases the utility of victory. Most rebels fight with the ultimate goal of state capture. However, for indicted rebels who have committed international crimes, such as the LRA, even victory will be accompanied by prosecution and accountability. Recall Charles Taylor’s less-than-graceful exit from the diplomatic meeting in Accra, Ghana after the Special Court for Sierra Leone unsealed its indictments against him. Hence, the ICC’s indictments also decrease the benefit of victory.

Second, the ICC increases the rebels’ costs of fighting the next battle rather than settling. Once rebel leaders have been indicted by the ICC, it becomes far more difficult and costly for them to obtain the weapons, resources, and support necessary to carry on the fight. In Uganda, for example, the ICC indictments have limited the willingness and ability of the LRA’s longtime backers in Sudan to provide material support to the movement, lest they be viewed as aiding indicted war criminals. Even the Congolese government, on whose territory the LRA have sought refuge, has shown a new willingness to cooperate in apprehending the LRA. As a result, the costs of fighting have increased for the LRA, as evidenced in part by a marked decrease in their attacks in northern Uganda.

Finally, ICC indictments can decrease the probability of the rebel’s ultimate victory. The decreased probability of victory flows in part from the increased costs of fighting noted above and also from the possibility of apprehension when warrants of arrest have been issued. In Uganda, for example, not only has it become harder for the LRA to score victories against the Ugandan government, but Joseph Kony also fears that black helicopters may descend on his hideout in Congo to apprehend him.

Taken collectively, the decreased utility of settlement, the increased costs of fighting, the decreased utility of victory, and the decreased probability of victory all impact on the decisions of the LRA as to whether to fight on or settle the conflict. Three of these effects—the decreased utility of victory, the increased costs of fighting, and the decreased probability of victory—have the potential to counterbalance the decreased utility of settlement that follows ICC indictments. Bold claims that the ICC makes settlement more difficult cannot, therefore, be sustained. The most that can be said is that the ICC’s impact is indeterminate and will depend both on the magnitude of the various effects at play and the particular indifference curves of any rebel leader. In Uganda, at least at first, it appeared as though the increased costs of fighting and the decreased likelihood of victory were dominant and the LRA appeared to be more willing to negotiate and perhaps settle because of the ICC indictments. More recently, it may be that the decreased utility of settlement in the face of ICC warrants is now the predominate effect. Hence, the LRA’s calls for withdrawal of warrants prior to final settlement.

While this analysis can not resolve the debate as to the ICC’s ultimate impact in Uganda, much less in other conflicts, it does suggest ways that the Court can better facilitate achieving both peace and justice. Those who call on the Court to withdraw warrants assume that in so doing the Court will increase the utility of settlement and allow for peace. They overlook the fact, however, that both the ICC and the Ugandan Government can do much to increase the costs of fighting and decrease the likelihood of victory, both of which also impact on the LRA’s decision as to whether to settle. There is presently considerable talk in Uganda about “pressurizing” the LRA to force them to accept settlement terms. The ICC and Uganda can continue to pressure Sudan to cease all support for the LRA. Likewise they can secure cooperation from the Congolese government and MONUC (the UN Mission in Congo) to apprehend the LRA. A recent agreement between Uganda and Congo providing a framework for joint military action is an important first step. In so doing, the ICC and the Ugandan government make it more difficult and costly for the LRA leadership to remain at large and should, thereby, increase their willingness to settle, notwithstanding the indictments against them.

Given the current posture of the LRA, that additional pressure may be insufficient to bring about settlement. However, the Rome Statute of the ICC provides for an often unrecognized means through which the utility of settlement can be increased short of withdrawing warrants and offering amnesty. Specifically, the ICC is a court of complementary jurisdiction; cases are inadmissible before it if they have been genuinely investigated or prosecuted by domestic authorities. Should Uganda undertake its own investigation and prosecution of Kony and the other senior LRA leaders, the ICC would be unable to proceed against them. Wisely or unwisely, Kony appears to find domestic proceedings against him more palatable than ICC prosecution. The framework agreement between the LRA and the Ugandan Government reached last June clearly expresses an openness to such domestic prosecutions, provided that “alternative sentences” are available. The key question presently under discussion at the peace talks in Juba, South Sudan is whether such a domestic proceeding can be designed that the LRA will agree to and that will satisfy the complementarity requirements of the Rome Statute that the proceeding be a genuine attempt to bring the perpetrators to justice. If such a proceeding can be designed, then it may be possible to achieve both peace and justice in Northern Uganda. That justice may not look exactly like a trial ICC and sentences may be reduced, but it would still entail meaningful accountability and open the door to peace.

Should an agreement be reached between the LRA and the Ugandan government that provides for domestic prosecutions, either the Ugandan government itself or one of the accused will have to challenge the admissibility of the case before the ICC. Ultimately, the Pre-Trial Chamber will decide if any Ugandan domestic proceedings are sufficient to meet the genuine prosecution requirements of the Rome Statute. The Chamber’s determination will have repercussions far beyond Uganda. Essentially, that decision will set the contours of acceptable domestic proceedings and the degree of flexibility open to State Parties to the Rome Statute to design criminal proceedings in a way that facilitates resolution of on-going conflicts. Ideally, any such decision will reaffirm the obligation to provide accountability, but also allow sufficient flexibility to states to achieve both peace and justice.

A subsequent posting will consider in more detail the next concrete steps that need to be taken to move toward settlement in northern Uganda.

 February 11, 2008 at 12:06 am   Posted in: International & Comparative Law    Print This Post

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