Peace and justice, a tough combination for the International Criminal Court

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Peace and justice, a tough combination for the

International Criminal Court

Bachelorthesis

Lilian Boerboom

5646162

International Organization in World Politics

Dr. Chris J. Bickerton

30/01/2012

Politicologie: Politieke Theorie en Politiek Gedrag

Lilian.boerboom@gmail.com

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Introduction:

On the first of July 2002 the new permanent International Criminal Court was born, “established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” (Site ICC)1 A large part of the world had joined hands in trying to make the world a somewhat better and safer place. Not at all superfluous or unnecessary when you consider the many serious crimes committed during the last decades; only think of Rwanda and Kosovo. The goal of the ICC is to bring some justice to these countries and although this goal seems wonderful and worthwhile, it is not that simple. The justice seeking of the ICC can, according to many people, seriously hinder the peace process in these countries. For example in Uganda the leaders of the Lord’s Resistance Army (LRA) refuse to sign a peace-agreement if the warrant for their arrest issued by the ICC isn’t withdrawn. (Site BBC)2 Justice appears here to be standing in the way of peace. It can also be the other way around where peace is preventing justice to be served. That is when people are granted legal immunity although they have committed, or are responsible for serious criminal acts, in the hope that this will bring a society to a peaceful and stable state. For example the former president of Yemen only stepped down after immunity for prosecution was granted to him and his relatives (Site Euronews)3 although in a recent report Amnesty International showed many human rights violations committed by the Yemeni government. (Site Amnesty International)4

This results in a situation where there is often a trade-off between peace and justice, where a choice has to be made to which of these two is given priority. This causes heated discussions in every new case with often a key-role for the ICC. In this thesis I will explore both sides of this debate and especially look at the role the ICC can play. My hypothesis is: by seeking justice the ICC hinders the peaceprocess in societies with violent conflict. Important is to note that with justice I mean criminal justice. I will first tell a few things about the ICC. Then I will move on to the debate and explore the arguments made on each side. Next I will look at this debate and the role the ICC can play in reality by researching the case of Uganda. Finally I will try to draw some conclusions on whether my hypothesis is supported by the facts in Uganda or not.

1 http://www.icc-cpi.int/Menus/ICC/About+the+Court 2_{http://news.bbc.co.uk/2/hi/africa/7340009.stm} 3_{http://www.euronews.net/2011/11/24/saleh-resignation-fails-to-pacify-yemen/} 4

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Chapter 1:Useful facts to know about the ICC

According to the ICC itself it is the “first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.” (Site ICC)5 It is the successor of the Yugoslavia and Rwanda-tribunals and even further in the past of Nuremberg and Tokyo. However the ICC is different being the first permanent court. It is independent of the UN and seated in The Hague. The necessary funds come from contributions of states parties and from voluntary donations from governments, organisations, individuals and corporations. The ICC exclusively tries individuals and it works only on the gravest crimes people can commit. These are summed up in four categories: crimes of genocide, crimes against humanity, war crimes and crimes of aggression. In the first attachment you can see which crimes are meant by these definitions, for example crimes like torture, rape, enslavement, murder and extermination. The ICC investigates, prosecutes and tries individuals who are accused of those serious crimes, but it can only do so when the concerned state does not, cannot, or is genuinely unwilling to do so. The legal basis of the ICC is the treaty known as the Rome Statute, adopted by 120 states on 17 July 1998. The Statute entered into force on 1 July 2002 when it was ratified by sixty states. As of 1 Februray 2012, 120 countries are States Parties to the Rome Statute. Of these, 33 are from Africa, 18 from Asia-Pacific, 18 from Eastern Europe, 26 from Latin America and the Caribbean and 25 from Western European and North America. The treaty is not ratified by Russia, China and the US. A case at the ICC can be initiated by the Office of the Prosecutor, or referred to the ICC by a state itself or by the Security Counsil. The ICC can only impose prison sentences to which can be added fines and forfeitures; the death sentence is not available to the judges. So far 14 cases in 7 situations have been brought before the ICC, all in African countries.

5_{cpi.int/Menus/ICC/About+the+Court,}

cpi.int/Menus/ICC/Situations+and+Cases,

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Chapter 2: The peace versus justice debate

“Trial and punishment of these offences [are] essential to achieve some degree of justice, but (..) a public airing and condemnation of the crimes are the best way to draw a line between times past and present, lest the public perceive the new order as simply more of the same.” (Crocker et al, 2007: 410)

“These are simply show trials unbefitting a search for peace and democracy, (..) a public review of war time atrocities will inflame passions rather than calm them, and (..)the best way to rebuild and reconcile the nation is to leave the past behind by forgiving and forgetting the sins of all parties to the conflict.”(Crocker et al., 2007: 410)

2.1: The risks and disadvantages of criminal prosecution

It won’t be an exaggeration if I say that a big majority of people will want justice to be served as well as to have durable peace in a postconflict society. But as it is seen now by many we can’t have both in equal satisfying amounts. There is often a trade-off between these two values and people will prioritise one over the other, evolving into a debate. In this chapter I will look at both sides of this debate and explore the reasons why some choose justice over peace or justice via peace and others choose peace before justice. A few warning notes before I’ll actually start. First this debate is very modern, contemporary and continually evolving. Every day new ideas, opinions and facts come up. Also the ICC itself is a relatively new organisation that is always investigating new cases and making use of different approaches. The fact that the debate and the ICC are so young and vibrant is something to keep in mind while evaluating them. Second there is a huge amount of literature written about this topic. Because of this I can’t give a thorough and complete overview of all the arguments, attitudes, opinions and aspects of the debate within the limitations of this thesis. I will therefore concentrate on the most common opinions and arguments.

Let me start with sketching the context of the debate. Like I said the crimes the ICC focuses on are all very serious. Furthermore the cases are almost always in Third World countries. They take place in societies where on the one hand thousands of people are the victims and on the other hand thousands of people have committed or participated in these crimes. Many times the violence has been raging for years. Thousands of people are wounded or have died, even more people have lost their homes and land and live in refugee camps. Added to this are all the problems that come with developing countries such as poverty, illiteracy, bad infrastructure, illegitimate governments etc. It forms the reality where diplomats and international organisations have to work in. Once there is a negotiation-process on its way, our debate begins. A lot of difficult questions now come up like how to achieve peace and ensure justice for the victims at the same time, should the negotiators agree to an

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6 amnesty agreement in order to improve the stability and the prospects of peace in a country or should they insist on prosecution to end the impunity and will this give the society a better basis for an enduring stable situation? (Souaré, 2009: 370) There are several different answers to these questions and this is best seen by studying the peace versus justice debate. I will start by exploring the perspective that prioritises peace and that sees justice as too much of a threat to the peaceprocess and then move on to the second and opposite approach.

The proponents of the first view are often not against criminal prosecution, but they think it is better to postpone this line of action for a while or even indefinitely, because this can give a country a better chance on becoming a peaceful society. So although it is awful not to prosecute people for these grave crimes, justice is sacrificed in the greater interest of peace. There are two main lines of reasoning on this side of the debate.

To start there is the line of fear which can be divided into three parts. First fear that by prosecuting or threatening to prosecute important actors in the conflict, this will actually prolong the conflict and the violence. Far from turning in their weapons and surrendering, an outstanding arrest-warrant will only motivate people to prolong the fight and remain in their relevant comfortable positions of power. Even the threat of being put on trial is enough to deter leaders of agreeing to any sort of agreement or even come to the negotiation-table at all. Especially the threat of prosecution by the ICC, far away from their familiar environment and support-base with no way of influencing the court and with the chance of risking a life-time sentence of imprisonment, will not motivate the leaders to give up their arms and give themselves willingly to their ‘executors’. Two quotes to illustrate this point of view: Michael Scharf claims that the leaders of the parties of a conflict must cooperate to end the fighting and the violence. “Yet, it is unrealistic to expect such leaders to agree to a peace settlement if, directly following the agreement, they would find themselves or their close associates facing life imprisonment.“ (Scharf, 1999: 508) Second Katherine Southwick states that: “Focusing on top leaders will deter them from surrendering and seeking amnesty (…)” (Southwick, 2005: 112) What’s interesting is that the actors involved often use this argument themselves in order to defend their refusal to sign or negotiate. It seems a very clear-cut choice in this sense that either the criminal charges are dropped and the arrest-warrants withdrawn or there won’t be a peace-agreement. However many people who use this argument, fail to consider whether this is an accurate picture or that the accused only use this kind of rhetoric to defend their refusal to sign. Nevertheless it certainly is a compelling argument that is made here. In this light criminal justice can have a considerable negative effect on a peace-process on its way.

Second there is the fear for a power-vacuum, a well known source of violence that can come into existence when the indicted leaders are actually apprehended and brought to The Hague or when their position is severely weakened by the outstanding arrest-warrants. It becomes for example hard for these people to travel to other countries, something that is often required of a leader. This power-vacuum can have devastating effects on the fragile situation in a country or even in an entire region

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7 because potential new leaders can start a war in search of new power in a country. It can also lead to potential violent coups and so destabilise the peace, stability and the possible democratic process in the country (Sing’Oei, 2009: 123) When the president of Sudan, Omar Bashir was indicted by the ICC in 2009 the fear was that if his arrest-warrant was executed and not managed in a proper way a power- vacuum would be created: “unleashing destabilising tremors beyond Sudan’s borders.” (Odinkalu, 2009: 16). Up to today Bashir has not been arrested, but in the immediate aftermath of the issuing of the arrest-warrant for Bashir many aid agencies such as Medecins Sans Frontieres withdrew their staff from Sudan (others were expelled) as did the UN by starting to evacuate non-essential staff members. (Oola, 2009: 65) (article BBC, 2009)6 This can be seen as a sign that many people and institutions believed that indicting Bashir was a dangerous move of the ICC.

Third there is the fear of the people that actually live in such a conflict-ridden society. They want food, healthcare, security and the chance to rebuild their lives in a peaceful society. To reach these goals, they are sometimes willing to give up their claim to justice and will ask not to prosecute their leaders because they are afraid that trials will jeopardise their chances on a better life. According to Naseem Badiey a doctoral researcher in politics and based in Sudan many people see justice as a luxury they just cannot afford. There is a strong believe that: “Many people do not want their lives to become test cases for theoretical debates on the future of international law.” (Badiey, 2008: 54). This can form a valid argument not to prosecute people.

The second line of reasoning on this side is that alternative methods to criminal trials such as Truth and Reconciliation Commissions (TRCs) and amnesty-laws give the society a better chance of dealing with the past and moving forward to a state of durable peace than criminal trials. In an interesting article Okechukwu Oko, a professor of Law, states that violence in Africa is the product of a different phenomenon than the deviant behaviour of individuals elsewhere. Violence in Africa such as in Rwanda and Sierra Leone comes not from this kind of behaviour, “but from tensions at the armature of the society: ethnic distrust. Its dynamism is sustained by the belief that violence in defence of ethnic interests is a moral imperative, even a legal obligation.” (Oko, 2010: 22) In these countries you have a situation of decades of ethnic distrust and a government that is not able to deal with it effectively. This violence is thus created by social problems while the criminal justice system is set up to deal with individual misbehaviour. Trials will not help overcome these problems and causes of violence (Oko, 2010: 22) Of course proponents of criminal trials will say that this is not the purpose of a trial. People have committed crimes, and in these cases, very grave ones and should be punished for it. According to the Office of the Prosecutor of the ICC: “There is a difference between the concepts of the interests of justice and the interests of peace and that the latter falls within the mandate of institutions other than the Office of the Prosecutor.” (Policy Paper Office of the

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8 Prosecutor, 2007: 1)7 In order to take this into account we have to see this argument in a different light. Advocates of the first view do not want criminal prosecution because they favour a different method that is better equipped to deal with the causes and the outcomes of the conflict. They also believe that these alternative methods are a better deterrent for future conflict.

In the past justice has often been traded for peace. In South Africa a TRC was established and in countries in Latin America (Chile, Argentina) and in Africa (Haiti) the decision was made to grant amnesty to leaders instead of prosecuting them. There are several alternatives to criminal trials. An important one is amnesty. “Amnesty refers to an act of sovereign power immunizing persons from criminal prosecution for past offenses.” (Scharf, 1999: 508) So amnesty means that people are not prosecuted for their crimes in the past because it is believed this is more conducive to long-term peace and stability than criminal trials (Clark, 2011: 539) But in order to have these actual benefits, amnesty is often accompanied with other measures. For example, “Where amnesty has been traded for peace, the concerned governments have made monetary reparations to the victims and their families, established truth commissions to document the abuses (and sometimes identify perpetrators by name), and have instituted employment bans and purges (…) that keep such perpetrators from positions of public trust.” (Scharf, 1999: 512) These form several of the other methods. The advantages of these alternatives to criminal prosecution are i.a. that victims are able to tell their story and hear from the perpetrators what has happened to them and their loved ones. Because in order to apply for amnesty, people often have to give full disclosure of their acts, therefore it is possible to get a very large part of the truth out in the open and officially documented. Furthermore everybody can be involved in the process and it is much less time- and money-consuming than trials. (Goldstone, 1996:493) TRCs, amnesties, reparation programs, victim and offender narratives and public discourses are the most important methods by which it is felt safe to deal with the past without risking prolonging the conflict. They are also considered as very useful methods to deal with the outcomes of the conflicts as well as a few of the causes. Furthermore it is believed that these methods will help the society move forward to a reconciliated, stable and peaceful state. Some even believe that they are good deterrents, a better way of helping to prevent the recurrence of violence than trials. This view is illustrated well by the words of Eric Fish. According to him the ICC works as a bad deterrent. The risks that are involved with committing atrocities are already so great, that the fear of international prosecution will only be a marginal consideration. “It therefore seems unwise to trade the possibility of peace through amnesty for the benefits of such a speculative deterrent.” (Fish, 2010: 1710) Last but not least there is also often the alternative of the traditional method of justice. We will talk more about this in the case-study of Uganda

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2.2: No peace in a society without justice

Now I turn to the other side of the debate which has as motto: ‘No Peace Without Justice’. Advocates of this view see criminal prosecution as an essential part of the peaceprocess and a necessary step that has to be taken in order to come to long-lasting peace and security in a society. I will now discuss their arguments.

First of all there is a strong moral argument that people who have committed these grave crimes have to be brought to justice. “To remember and to bring perpetrators to justice is a duty we (…) owe to our own humanity” (Bassiouni, 1996: 27) This view points to a deontological worldview where acts themselves are right or wrong. People committing the wrong acts have to be punished regardless of the effects. (Blumenson, 2006: 824) If we talk about crimes as severe as genocide and war crimes we should not be talking about amnesties, according to this view, there is the moral obligation to prosecute and punish the people responsible.

Second and closely connected, is the view that prosecution and punishment is a duty of justice that is owed to the victims. When a society does nothing in the aftermath of a crime, it thus treats a victim unjustly. The state, but also society as a whole has the responsibility to repudiate the crime. (Blumenson, 2006: 838) Besides it is believed that prosecution and punishment gives significance to the sufferings of the victims and helps restore their dignity. Added to this is the fact that in the absence of justice, people might take matters into their own hands as has happened after the amnesty in Haiti (Scharf, 1999: 513)

Third the Rome Statute definitely established the individual responsibility for criminal acts. It doesn’t matter whether people are members of the government, whether they did or did not directly commit the crime and whether they were following orders. (Ainley, 2011: 311) For crimes committed, people are now individually held responsible and prosecuted. This individual prosecution is important because by individualizing crimes and guilt, the situation is avoided where an entire group (e.g. religious or ethnic) is blamed for the crimes committed by individual people. This can defuse further discrimination and potential violence.

The fourth argument to plead for criminal prosecution is that it ends the impunity in a country and this is important for a number of reasons. For starters ending the impunity in a country is in itself a desirable goal and one that is explicitly mentioned as one of the core-targets of the ICC. (Site ICC8) Furthermore there is often a strong belief that it is not possible to build lasting and endurable peace in a country where impunity rules. There is a difference between negative peace (absence of conflict) and positive peace (consolidation of peace) (Clark, 2010:147) Positive peace does not go well together with impunity. In a situation of impunity there is no sense of accountability, there is no respect for laws, people will deal with conflicts in their own way etc. This can all lead to new sources of violence and does not form a fertile startingpoint for reconciliation and a peaceful society. Yvonne

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10 Malan puts it nicely by saying that methods like amnesty provide shaky grounds on which to build a new society. (Malan, 2008:62)

I have already hinted to it but impunity is often seen as an important reason of the prolonging of violence and human rights abuses. Criminal prosecution, ending this state of impunity, can so help as a deterrent for further atrocities and this forms the fifth argument why criminal prosecution is so important. That impunity is for a great deal responsible for the prolonging of violent conflicts seems to be a fact of general consensus. (Oette, 2008: 66) (Lynch, 2009: 96) (Dahreshori and Evenson, 2010: 36) Even the UN sees impunity as one of the major reasons why human rights abuses keep continuing in the world. (Scharf, 1999: 512) (Murithi, 2009: 97) Michael Scharf explains this link: “Failure to prosecute leaders responsible for human rights abuses breeds contempt for the law and encourages future violations.” (Scharf, 1999: 512) It is then of vital importance for a post-conflict society that criminal prosecution brings an end to impunity and so helps deterring further violations and abuses. These goals cannot be reached with amnesties or TRCs because these do not include the actual ending of impunity in a country by prosecuting and punishing people for their crimes.

We already saw that criminal prosecution can make a borderline between past and present and that it can end impunity. But it can also move beyond that and become a stabile underground for the building of a new society where the rule of law is firmly established. This forms the final argument to prefer criminal prosecution over alternatives. Of course there is a long way to go for post-conflict societies to (re)build a fair and effective judicial system, but the ICC can form an example and guide and the criminal trials can serve as a new starting point. But the ICC can do more than that. This is best explained by an example. Darehshori and Evenson have shown that the ICC investigation in the Central African Republic has put a lot of pressure on the central government to enforce humanitarian international law. The government was now forced to deal with human rights abuses in the country and start prosecuting people. There was actually an office for humanitarian law established in the army. (Darehshori and Evenson, 2010: 43) This goes to show that the involvement of the ICC and criminal prosecution can help re-establish the beginning of the rule of law. I will conclude this section with a conclusion of Steven Roach that gives a nice ending: “One might conclude (...) that all short-term concerns for peace should never preempt justice, since the strict pursuit of justice means bringing the stabilizing forces of rule of law (confidence in the police and judiciary forces) to developing states.“ (Roach, 2011: 548)

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2.3: Two debates and not enough research

As we have seen there are actually two debates going on. First is the one I have discussed between justice and peace and the other one is the debate over the choice of most suitable methods to deal with past, present and future or in other words the debate over the choice between criminal prosecution and alternative methods. Is there then no empirical research that has investigated these methods and their consequences? Well the subject remains under researched, but attempts have been undertaken. Unfortunately these researches point into different directions. Jack Snyder and Leslie Vinjamari conclude in their empirical research that trials are a bad deterrence for future violence and are not highly correlated with the consolidation of peaceful democracies, while amnesties and TRCs have often formed the basis for a durable peace in a country. (Snyder and Vinjamari, 2003: 43) Furthermore they point to very successful amnesties (in El Salvador en Mozambique) and positive results from TRCs (South-Africa) (Snyder and Vinjamari, 2003: 6) On the other hand there is the research of Kathryn Sikkink and Hunjoon Kim that concludes that criminal prosecutions do deter further human rights violations (Sikkink and Kim, 2010: 958) and that, although TRCs also have a positive influence on human rights practices, trials have a stronger effect. (Sing’Oei, 2009: 123) Besides there is also evidence that TRC’s haven’t worked properly in some cases such as in Serbia and in Congo. (Bosire, 2009: 132) The only conclusion that can be drawn from this, is that there is a lot that needs to be researched while this is at the same time a very difficult task.

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Chapter 3: The involvement of the ICC in Uganda and its effects

“To remember and to bring perpetrators to justice is a duty we (…) owe to our own humanity” (Bassiouni, 1996: 27)

“To talk about justice as being realized by the capture of five men and to spend millions of dollars and a massive international effort on capturing them in the midst of a humanitarian disaster, especially when there is nog guarantee that their capture will bring peace is myopic and morally indefensible.” (Adam Branch, 2007: 149)

3.1: The history of the LRA

Now its time to go to Africa to apply the hypothesis on a real case where the ICC is involved, Uganda. I have chosen this country because besides the fact that I find the case fascinating, almost all the arguments I have mentioned come together in this case. That’s why Uganda is so often used as an example in the literature. Still this thesis has a very new look on the case because almost everybody uses Uganda to argue for one or two of the arguments or one side of the debate. I haven’t read one single article or book where the entire case is reviewed to see which arguments are valid and hold-up and which do not. By looking at the whole picture hopefully this thesis will give a new and fresh perspective on the debate.

Lets start by finding out what the war in Uganda was actually about. When the country was colonized by England (1890-1962), it was divided between north and south. All effort in economic development by the British colonial administration went to the southern part of Uganda and so this region became very productive and well-developed. The north stayed underdeveloped, but got military dominance over the south because the army consisted of nearly all Acholi (the largest ethnic group in the north) and no people of the south. So the country was effectively split into two parts with one part economically prosperous and the other part underdeveloped in the economic area, but strong and powerful in the military sense. (Clark, 2010:142) (Doom and Vlassenroot, 1999: 8) This division in power continued after the decolonization until the current president Yoweri Museveni (from the south) and his National Resistance Army (NRA) seized power and hereby took it away from the government that was principally Acholi. (Clark, 2010: 142) The Acholi now lost their military and political power and the beginning of the war was as much as an attempt to retrieve this power as in order to defend themselves. This defence was neccessary against the revenge-attacks of the NRA that started right after their victory. The latter committed complete massacres in the north and many

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13 Acholi fled to Sudan and regrouped there into rebel groups in order to fight back (Clark, 2010: 142) (Doom and Vlassenroot, 1999: 13) The LRA became the strongest and most important of these groups during the 1990s. The organisation began as the successor of the Holy Spirit Movement (HSM) originated in 1986 and lead by Alice Auma Lakwena. She claimed to be a prophet and a spiritual medium who could perform miracles. This movement tried to destroy the new government and its army, but in 1987 the HSM took heavy losses during the fights and was almost destroyed. Lakwena fled to Kenya and the movement was taken over in 1988 by her cousin Joseph Kony who renamed the organisation into the Lord’s Resistance Army. Like Lakwena, Kony claims he has supernatural powers and he sees himself as a messiah. The goal of the LRA is to overthrow Museveni’s government and to install the Ten Commandments of the Bible in Uganda. (Akhavan, 2005: 406) (Doom and Vlassenroot, 1999) However since the beginning of the nineties, the LRA is also fighting against their own people, the Acholi, because their support for the LRA declined. This was interpreted as collaboration with the government (Southwick, 2005: 106)

The LRA is responsible for many human rights abuses such as mutilations, rapes, abductions and killings. (IRIN, 2011)9 The group is actually notorious for the abduction of people including large groups of children. These people are then forced to fight for the LRA, tortured and used as (sex)slaves. According to the UN High Commissioner for Human Rights in 2001 there were 26.365 cases of abduction reported. 8.788 of these cases involved children under 18. (Report UNHCHR, 2001)10 Between 2001 and 2006 these numbers even went up, partly because of better registration which leads Pham and others to conclude that between 1986 and 2006 between 54.000 and 75.000 people were abducted. Among this group were 25.000 to 38.000 children. (Pham et al., 2008: 410) According to the UN the LRA is responsible for the death of tens of thousands of people (there are no exact numbers to find) and forced almost two million Ugandans to flee from their homes. (Site UN)11

3.2: The birth of a self-referral and its consequences

In December 2003 the ICC became involved in the conflict in Uganda when the president of the country Yoweri Museveni took the decision to refer the situation concerning the LRA to the ICC. The self-referral was the result of a difficult situation for the Ugandan government and starting-up problems of the ICC. In 2003 the war had been raging for seventeen years and by now it was clear that the Ugandan government wasn’t able to destroy the LRA or come to a peace-settlement. Museveni always tried to solve the situation by fighting, but the military operations were not only failing to defeat the LRA, but they were also responsible for the increase of the number of displaced 9_{http://www.irinnews.org/report.aspx?reportid=94260} 10 http://www.unhchr.ch/huricane/huricane.nsf/0/F9600225C0650AABC1256A330051AAFD?opendocument 11 http://www.un.org/events/tenstories/07/uganda.shtml

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14 people from 400.000 up to 1.6 million, many more deaths and human rights abuses (Southwick, 2005: 109) (Nouwen and Werner, 2010: 948) Furthermore the humanitarian situation in northern-Uganda was deteriorating at rapid speed, there were corruption scandals in the government and riots in response to prosecutions of political opponents. All this lead to intensified calls of international donors, funding a large part of Uganda’s budget, to come to a quick peaceful solution. Against this background, the Ugandan government decided to refer the case of the LRA to the ICC as part of an international campaign to restore the public reputation of Uganda and as a new strategy to defeat the LRA. (Nouwen and Werner, 2010: 949)

On the other side the ICC had just begun its work and was looking for its first case where it could show the need and right to exist. This was even more important because at the time, the ICC faced a lot of opposition, especially by the US (Nouwen and Werner, 2010: 954), so a self-referral would be the ideal first case for the ICC. The situation in Uganda was worldwide recognized as one were grave crimes were committed. As result Moreno-Ocampo, the first prosecutor of the ICC, lobbyed for an invitation by the Ugandan government to investigate their case. (Ainley,2011:328) A deal was made between Museveni and Moreno-Ocampo where “The ICC got its first state referral case and Museveni got another weapon to attack the LRA.” (Dolan, 2009: 135) As it turned out this deal was not such a great start for the ICC after all.

After the self-referral, the prosecutor determined that there was sufficient basis to start an investigation and in 2005 it issued five arrest-warrants for the top-leaders of the LRA. (See attachment 2 for the details) Although this is completely the right thing to do considering the acts of the LRA, the ICC has met a lot of criticism because it never investigated any allegations of crimes against the UPDF, the Ugandan army. As we already have seen above the army is responsible for many atrocities committed in their war against the LRA such as torture, rape and murder of civilians. (Dahreshori and Evenson, 2010: 37) It seems that in the deal was also included that no government actors were investigated or prosecuted. (Clarke, 2009: 11) Although Moreno-Ocampo defends his conduct by stating that the crimes committed by the LRA are much graver than the crimes of the UPDF, his choice of actions have raised many accusations of bias and partiality. (Clark, 2011: 524) (Branch, 2007: 188) One of the reasons for the prosecutor to act this way, is a flaw in the construction of the ICC. As it has no private police force and states are responsible for the actual arrest of the accused, the ICC is highly dependent on the cooperation of the state that it is investigating, with as result that in this case the Ugandan government has threatened several times already to cease cooperation completely if its own military becomes subject to prosecution. (Branch, 2007: 188) Whatever might be the reasons for the ICC’s mode of action, it portrays a picture of selective justice for the local population. Many people believe that the ICC is protecting certain groups and individuals from prosecution. (VRWG cited in Clark, 2011: 525) This picture of the ICC as a biased institution that takes the side of the government, can hardly be considered to be conducive to the peaceprocess. Especially the victims of the UPDF do not feel like their suffering is taken seriously enough and dealt

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15 with in a fair way. Furthermore it is hard to build a sustainable peace in a society where only one side of actors are punished and the victims are met in their grievances.

As a second consequence of not indicting any other actors than LRA-leaders, the ICC appears not only to be biased, but it also indirectly legitimatises the actions of the Ugandan government. “While branding the LRA as humanity’s enemy, the referral portrayed the Ugandan government as a defender and friend of mankind.” (Nouwen and Werner, 2010: 950) The latter is now officially allowed to hunt-down LRA-fighters because the organisation is branded as a criminal one with an international arrest-warrant issued for the leaders. (Nouwen and Werner, 2010: 951) This is then the choice of action taken by the Ugandan government. It has returned to its search for a military solution instead of a diplomatic one and in return countries like the US supply the government with military aid and diplomatic support. (Branch, 2007: 185) Phil Clarke claims that by the legitimatization of the violence of government forces, the ICC is responsible for the prolonging of the conflict in Northern Uganda (Clarke, 2009: 11) The Ugandan government now seems to have card blanche to defeat the LRA.

Furthermore the criminalising of the LRA by the ICC, makes the former and the Ugandan government to be no longer considered as equal negotiation-partners. The political demands that the LRA has made on behalf of the Acholi people are ignored. These are for example the end of government violence and repression, return of the Acholi people to their homes and the political and economic equalization of north and south Uganda. (Branch, 2007: 191) So although the LRA uses criminal methods, the goals they are fighting for are valuable for the Acholi-people. But the government uses the war against the LRA: “To silence political dissent by disqualifying and persecuting political opposition (..) in the name of counterterrorism.” (Branch, 2007: 185) In a situation where the crimes committed against the Acholi-people are ignored, where their demands and interests are not taken seriously into account and where their representation is silenced in the political arena, future causes for new conflicts and violence can grow and develop.

3.3: Positive and negative outcomes of the ICC involvement in Uganda

So far we have seen how the ICC came involved in the conflict in Uganda and how this immediately caused problems, I will look now into what happened after the self-referral.

I will start with two positive developments of the involvement of the ICC for the peace-process. First there is a general consensus that the issuing of the arrest-warrants for the top-leaders of the LRA lead them to participate in the negotiations for a peace-agreement, the so-called Juba-talks in Sudan between 2006-2008. (Ainley, 2011: 328) (Clark, 2010: 144) (Fish, 2009-2010: 1713) It seems that the leaders of the LRA feared prosecution by the international community and agreed to enter negotiations in order to secure amnesty. Even critics support the fact that the ICC was a reason for the

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16 LRA to negotiate, but they claim that it was just one of the factors that influenced this decision. (Clarke, 2009: 11)

The second positive development was that the only government that supported the LRA in the entire world, Sudan, was forced to end this support, pressuring the LRA into a severely weakened position. The Ugandan government has for many years supported the Sudan’s People Liberation Movement (SPLM). This rebel group out South-Sudan has fought the Sudanese government for twenty-one years over issues as resources, power, the role of religion in the state and self-determination. (Site UN)12 As payback, the Sudanese government has supported the LRA since the mid-1990s with military and financial support. The Sudanese also gave the LRA military bases on their territory and this formed one of the reasons why the Ugandan army never could defeat the LRA. In 2005 the Sudanese government and the SPLM reached a peace-agreement with as consequence the ending of the support for the LRA and even the permission for the Ugandan army to access Sudanese territory to search LRA-soldiers. (Southwick, 2005: 111) However the peace-agreement was not the only reason, Khartoum decided to stop supporting the LRA. The ICC involvement was the second reason that Sudan cut off the flow of weapons and money to the LRA (Ainley, 2011: 328), (Akhaven, 2009: 10) The ICC involvement changed the dynamics of the conflict probably because Sudan was already under great pressure by the ICC and the international community for the situation in Darfur, so the Sudanese government wanted to be on the good side of the war against terrorist groups and avoid association with persons that are being prosecuted by the ICC. (Nouwen and Werner, 2010: 949) So because of the arrest-warrants issued by the ICC the LRA was persuaded into peace-negotiations and at the same time the organisation was marginalized because it was now isolated from the support of Sudan. (Dahreshori and Evenson, 2010:36) In this way the ICC influenced the peace-process in a positive way.

However of course there is a downside to this story. Immediately after the referral there was protest of i.a. international organisations, interest groups of the Acholi people, government factions and diplomats. They claimed that prosecution would jeopardise the peace-process by overruling the Amnesty Act and so removing the incentive for the LRA-top to hand in their arms and surrender. Second they thought that the Acholi traditional conflict- resolution method Mato Oput, is a better way of dealing with the past because it stresses forgiveness, reconciliation and reintegration of offenders. (Blumenson, 2005: 809) I will discuss these two arguments in a bit more detail.

The first argument is one I have discussed in the theoretical debate and one that is very often mentioned in the case of Uganda. The ICC arrest-warrants would destroy the chances that the LRA-leaders will sign a peace-agreement that would lead up to them going to trial. In an interview that Vincent Otti, the second in command at the LRA and indicted by the ICC gave, he makes it very clear that if the ICC refuses to withdraw the arrest-warrants, the LRA will not participate in a

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17 agreement. They will not leave the jungle in order to be arrested and this means that there will be no peace in Uganda. (Article IRIN, 2007)13 Surprisingly Museveni and the government went along. They started negotiations with the LRA with the help of the UN and Museveni not only refused to execute the arrest-warrants (Ainley, 2011: 328) but he also offered full amnesty to the LRA-leaders. This was rejected by the ICC that asked the Ugandan government to arrest the rebel leaders. Museveni refused and proceeded with the negotiations. In 2007 the government and the LRA-top agreed that the latter would be prosecuted by a domestic court. These trials would use alternative methods of punishment with relatively light sentences. (Fish, 2009-2010: 1706) However the peace-talks ended when Kony didn’t show up to sign the final peace-agreement in 2008 because the arrest-warrants were not withdrawn. Another attempt for peace had failed.

However it remains to be seen whether this is an accurate picture of the situation. Janine Clark makes a few observations that seriously question this image of the ICC destroying Uganda’s chances on peace. First of all she asks whether it is not a bit short sighted to claim that the ICC jeopardises the peace in a country where there hasn’t been peace for many decades? Furthermore the claim that peace is depending on the ICC to withdraw the arrest-warrants, assumes that Kony and the other LRA-leaders are really committed to peace in the country. This is something that can seriously be questioned if you look at the LRA’s background. This is also illustrated by the fact that in 2006 the Ugandan government and the LRA did sign a Cesation of Hostilities Agreement but this has not brought an end to the violence. Next is the fact that when Moreno-Ocampo began his investigations in 2004, he was careful not to jeopardise a new peace-initiative that was led by former minster, Betty Bigombe. Only when it was clear that there was no progress made, the prosecutor decided to issue the arrest-warrants. So I can only conclude that it wasn’t a situation where the LRA had no time between the referral and the issuing of the arrest-warrants to come to an agreement with the Ugandan government. Clark wonders furthermore whether the signature of Kony on a peace-agreement is any guarantee for future peace. (Clark, 2010: 145-147) I think that no peace-agreement ever gives any guarantees, but Clark does have a point if she questions the real motives of the LRA-leaders and whether they really want to put down their weapons in order to have peace. I would like to add to these remarks the fact that there was the Amnesty Act issued by the Ugandan government in 2000. This law granted immunity to all LRA-fighters including the leaders, in exchange for surrender while they didn’t even have to participate in any reconciliationprogram. (Blumenson, 2005: 807) These are probably the best conditions that can exist, but none of the LRA-leaders took the deal. Of course then there was not the threat of prosecution by the ICC, but in my opinion it’s not like the LRA-top is waiting for the right circumstances to leave the jungle.

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18 The second reason so many organisations and people were outraged after the ICC issued the arrest-warrants for the five LRA-leaders was that they felt the ICC overruled the traditional method the Acholi-people use to deal with conflicts, the so called Mato Oput-ceremony. The Refugee Law Project (RLP) an autonomous project within the Law Faculty of the Makere University to protect and promote the rights of forced migrants in Uganda (Site RLP)14, explains that there is a difference of perspective in the justice system of the Western world and the traditional African justice system. The former is based mainly on punishment and retribution, in the latter punishment is just one part of the process. It also entails rehabilitation, reconciliation, compensation and restoration. (RLP, 2005:12) This is the so often called difference between retributive and restorative justice. This is not the only difference between the justice systems. In the African system the entire community and especially clan is involved in the crime and the punishment. The purpose is to bring the criminal, the victim and the community together again. (RLP, 2005:13) The Acholi-people use the traditional ceremony of Mato Oput (meaning drinking the bitter herb) for this purpose. The ceremony itself entails: a process of mediation, confession, payment of compensation, a reconciliation ceremony during which two sheep are slaughtered and exchanged an finally the drinking of the oput root, to symbolize the washing away of bitterness between the two clans.” (Clark, 2011: 543) With this ceremony the Acholi-people acknowledge that the criminal has been accepted back into the community and that the people in this community are pleased with his return. (RLP, 2005: 24) As we can see there is a lot involved in such a ceremony, there is confession of the crimes, compensation measures are agreed on and a way to reconcile and move on with living in the community for both the victim and the perpetrator is established. It is no wonder then that a lot of people favour this way of doing justice over the much more narrow retributive justice-system promoted by the ICC. The traditional way of doing justice is often agreed on as a good way to deal with ‘regular soldiers’. Even the Office of the Prosecutor stated in a policy paper that methods like this can be complementary to his work. (Policy Paper Office of the Prosecutor, 2007: 8)15 As we have already seen, criminal trials are very expensive and time-consuming. Besides in situations like this it is very hard to find enough solid evidence to convict people. That is why normally only the top leaders are prosecuted and the low-level fighters are dealt with in other ways. The question here is then not whether this method is suitable for all the LRA-soldiers but is it the proper way to bring the leaders such as Kony and Otti to justice? The answer to this is not at all clear-cut. Some say that their crimes are too grave, too complex and too hard to deal with it in the traditional way (RLP, 2005: 30), while others argue that the ICC makes justice more difficult now reconciliation by the community is not possible as the main perpetrators,

14

http://www.refugeelawproject.org/working_papers/RLP.WP17.pdf

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19 the persons “who most need to be reconciled or dealt with by their communities” are taken away. (Branch, 2007: 192)

3.4: The contradictory desires of the people

It is interesting to see what the population thinks is important and which justice-system is better equipped or more suitable to deal with the perpetrators. For this purpose I use a population-based survey conducted by three organisations (UC Berkeley’s Human Rights Center, Tulane’s Payson Center for International Development and the International Center for Transitional Justice) in eight districts of Northern-Uganda between April to June 2007. (Site survey)16 The survey consists of in-depth qualitative interviews of a total of 2785 people with the help of standardized questionnaires. The results of these interviews were later statistically analysed.

Results of the survey show that 90% of the respondents believes peace can be achieved through dialogue with the LRA, 86% think through pardoning the LRA for their crimes. This view of peace through pardoning is supported by other results. When the respondents were asked whether they favoured peace with amnesty or peace with trials, 80% answered peace with amnesty. 81% of the respondents believed that amnesty would help bring peace and an incredibly high number, 86% claimed they would accept amnesty if this was the only way of achieving peace. However accountability and trials are not ruled out as important either. 70% of the respondents think it is important that people responsible for committing violations of human rights and international humanitarian law are held accountable. Half of the respondents believe that the LRA-leaders should be held accountable and the same percentage thinks people of the UPDF should be put on trial. When the respondents were asked which mechanisms would be most appropriate to deal with the LRA or UPDF, 29% mentioned the ICC, 28% the domestic courts of justice and only 20% said the Amnesty Commission. This contradiction where people want accountability, but at the same time are willing to put this aside can come from the fear of people that trials are dangerous to the peaceprocess. 76% of the respondents who knew the ICC (60%) thinks that pursuing trials now could endanger the Juba peace talks. (Survey-report, 2007: 3-5) Unfortunately all these factors in the survey do not add-up to one clear picture of what the Ugandans themselves want. They want peace and are prepared to accept amnesties, but at the same time they think people should be held accountable and prosecuted. To show this vagueness once more, “54 percent preferred options such as forgiveness, reconciliation, and reintegration of LRA-leaders or their confession and apologies. Conversely, 41 percent preferred options including trials and/or punishment including imprisonment.” (Survey-report, 2007: 4)

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20 3.5: The situation in Uganda now

Since 2006 the LRA has become more and more inactive in northern-Uganda, but the group is still operative and spreading it’s violence now in three other countries: South-Sudan, Central African Republic and the Democratic Republic of Congo. The group is estimated to only have less than five hundred soldiers left. Interesting fact is that the US has sent hundred military advisors to help the Ugandan army to find the last LRA-soldiers and especially the four remaining leaders. (IRIN, 2011)17’18 This is now no less important than a few years ago since the LRA is already responsible again for hundreds of abductions and killings, and the displacement of thousands of people. (IRIN, 2010)19 Four of the LRA-leaders that are indicted remain at large, the fifth is decaesed and has been removed from the case.

17_{http://www.irinnews.org/report.aspx?reportid=94260}

18_{http://www.irinnews.org/InDepthMain.aspx?indepthid=92&reportid=94256} 19

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21

Conclusion:

My hypothesis was by seeking justice, the ICC hinders the peaceprocess in societies with violent conflicts. In order to answer the question whether this is true or not I have investigated the case of Uganda. From one case only it is not possible to draw strong scientific conclusions in general, so I will only focus on what the case of Uganda can say about this hypothesis.

There are two considerable positive effects of the ICC involvement on the peaceprocess. First is the fact that the pressure of prosecution by the ICC forced the LRA-leaders to negotiate with the Ugandan government about surrendering and ending their violent battle in return for legal immunity. Second with the involvement of the ICC, it became too costly for the Sudanese government to keep supporting the LRA which forced the rebel group in a seriously weakened position. This is an important reason the LRA is becoming much more inactive in Uganda, although certainly not defeated as it is spreading it’s violence now in three other different countries. These are two very good reasons why the ICC has been beneficial to the peaceprocess. But let’s not forget Kony didn’t show up to sign the final agreement, there is no peace and the LRA-soldiers are still roaming at large. A lot of people blame the arrest-warrants of the ICC for this. As we have seen there are serious doubts whether this is the real reason the LRA is refusing to sign and whether they are truly committed to peace, but we can not rule out that the ICC has formed a serious obstacle for peace in Uganda on this account.

Furthermore there are problems from the beginning for the ICC when the deal was made between Museveni and Moreno-Ocampo where it was agreed only to prosecute the LRA. It gave the ICC the reputation of being biased and partial which makes it hard for the people to believe the ICC is bringing justice and promoting peace. There is a whole group of people, mainly Acholi, who feel that their interests and demands are not taken seriously and that the crimes committed against them are not being punished. Here you can already see new potential sources of conflict come into existence and develop. Besides by only prosecuting the LRA-leaders, the ICC portrayed the Ugandan government as good and the LRA as bad. The ICC hereby legitimatised the return to the violent military solution by the government and so helped prolonging the violence. The ICC cannot force the Ugandan government to take the interests and grievances of the people in the north into account, but it can promote equal justice for everybody and with this promote better chances on peace. What would really help the ICC to overcome these negative effects on peace, would be if the court had its own police force and if it would no longer be dependent on the cooperation of the government concerned, so they don’t have to agree on abstaining from prosecuting one party in order to be able to prosecute the other party. Of course this raises problems with the sovereignty of countries, but it would enable the ICC and the international community to promote a stop on all violence and bring all the perpetrators of the gravest crimes to justice.

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22 I return to my original question if the ICC hinders the peaceprocess? The case of Uganda doesn’t give a clear-cut answer and frankly I would have been surprised if it did, because things like this are never that simple. The ICC certainly has had some positive effects and some negative ones. A few of those latter can be solved by giving the ICC their own force and the power to investigate cases independently of all relevant actors. Overall I think this makes the scale tip toward a positive possible effect of the ICC on a peaceprocess, but of course it can vary per case.

However there still remains the other important reason people didn’t want the ICC to become involved, Mato Oput and other alternatives would be more suitable to deal with the past and would be a better deterrent for future violence and conflict than criminal trials. Which of these methods works better as a deterrent is something that is pretty unclear. A lot more research has to be undertaken in order to give an answer to this question so that is not a reason to definitively choose one method over the other. In Uganda Mato Oput is seen as a good way to deal with ‘regular’ soldiers especially because so many of them were once abducted and forced to fight, so blurring the lines between victim and perpetrator. If this ceremony or participation in other alternative methods is also a good way to deal with leaders like Kony, that is something that is the subject of much debate. As we have seen the people itself are not in agreement and give contradictory opinions in the survey. Something is to be said for the view that in the long-term it would be good for Uganda when the LRA-leaders are removed from society, but maybe it would be better if these key-persons are reintegrated into the community. This is not a question that can be scientifically answered. For me personally there is a lot to be said for the deontological view that people should be held responsible especially for crimes like this, because some things are just plain right and wrong. Also I think it will help the country forward by ending the impunity and make a clear break between past and present where people can start believing again in the rule of law and where conflicts are settled in a non-violent manner. However the reader may feel otherwise. This can have something to do with the last point I want to raise in this thesis; when you look at the arguments on both sides of the debate you can see that a lot of the arguments pleading for justice are deontological, while arguments for peace are often utilitarian. These two perspectives will almost never connect and often collide with each other. Which side of the debate you will favour, will partly depend on which of the two views you support.

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23

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27

Attachments:

Attachment 1: Crimes within the jurisdiction of the ICC

Which crimes fall within the jurisdiction of the ICC?

The mandate of the Court is to try individuals rather than States, and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of aggression, when the conditions for the exercise of the Court’s jurisdiction over the latter are fulfilled.

What is genocide?

According to the Rome Statute, “genocide” means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:

• killing members of the group;

• causing serious bodily or mental harm to members of the group;

• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

• imposing measures intended to prevent births within the group;

• forcibly transferring children of the group to another group.

What are crimes against humanity?

“Crimes against humanity” include any of the following acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

• murder;

• extermination;

• enslavement;

• deportation or forcible transfer of population;

• imprisonment;

• torture;

• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

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28 religious or gender grounds;

• enforced disappearance of persons;

• the crime of apartheid;

• other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.

What are war crimes?

“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

• murder;

• mutilation, cruel treatment and torture;

• taking of hostages;

• intentionally directing attacks against the civilian population;

• intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;

• pillaging;

• rape, sexual slavery, forced pregnancy or any other form of sexual violence;

• conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

What is a crime of aggression?

As adopted by the Assembly of States Parties during the Review Conference of the Rome Statute, held in Kampala (Uganda) between 31 June and 11 May 2010, a “crime of aggression” means the planning, preparation, initiation or execution of an act of using armed force by a State against the sovereignty, territorial integrity or political independence of another State.

The act of aggression includes, among other things, invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity and scale, a manifest violation of the Charter of the United Nations.

The perpetrator of the act of aggression is a person who is in a position effectively to exercise control over or to direct the political or military action of a State.

(29)

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Attachment 2: Details of the arrest-warrants for the LRA-leaders

ICC-02/04-01/05

The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen

Joseph Kony

Alleged Commander-in-Chief of the Lord’s Resistance Army (LRA).

Prosecution application for a

warrant of arrest 6 May 2005

Warrant of arrest issued by Pre-Trial Chamber II:

Issued under seal on 8 July 2005

Unsealed on 13 October 2005

At large Counts

Mr Kony is allegedly criminally responsible for thirty-three counts on the basis of his individual criminal responsibility (articles 25(3)(a) and 25(3) (b) of the Statute) including:

• Twelve counts of crimes against humanity (murder - article 7(1)(a);

enslavement - article 7(1)(c); sexual enslavement – article 7(1)(g); rape - article 7(1)(g); inhumane acts of inflicting serious bodily injury and suffering - article 7(1)(k)); and,

• Twenty-one counts of war crimes (murder - article 8(2)(c)(i); cruel

treatment of civilians – article 8(2)(c)(i); intentionally directing an attack against a civilian population – article 8(2)(e)(i); pillaging - article 8(2) (e)(v); inducing rape – article 8(2)(e)(vi);

Peace and justice, a tough combination for the International Criminal Court