Select Committee on International Development Minutes of Evidence


Examination of Witnesses (Questions 40-55)

MS MARIEKE WIERDA, MR NICK GRONO AND MR BARNEY AFAKO

4 JULY 2007

  Q40  Mr Davies: That is my second scenario, but that does involve retreat by the ICC.

  Mr Afako: No, it does not involve retreat by the ICC because I think that the Rome Statute, properly conceived, is actually a much more subtle document. I think that the current emphasis on the arrest warrants per se has prevented a much closer examination of what justice and the fight against impunity actually entails. The judges will have to come to a conclusion as to whether Uganda's exercise of criminal jurisdiction satisfies international standards and that is not just a standard on the basis of penalties, but the entire criminal justice process. Indeed, the context of that process is not irrelevant and I do not believe that the Court will ignore the fact that this peace process, which has been embarked on, is taking place in a conflict resolution setting and, if it delivers the peace dividends that we all hope for, that will be a factor in determining what action the Court will take. The point really is that it is a more nuanced approach that we expect.

  Q41  Mr Davies: It is certainly a more nuanced approach, but I put it to you again that the penalty of that, the price of that is to blunt the credibility of the ICC which is based on the assumption of some form of international justice on a single standard throughout the world for a particular type of crime, and that will go and be replaced by the idea that the ICC may initially issue indictments which in practice will be different in different contexts depending on the political pressures involved and depending on the negotiating and bargaining strengths of those who have been indicted and depending on the judicial and legal systems in the country in which the atrocities or the alleged atrocities took place. That is a very different picture from the one of a single standard of justice delivered by an objective international court.

  Ms Wierda: Just to speak to that, I come from an organisation that strongly supports the International Criminal Court and the system it represents, but I think we would say that the innovation of this Court really is its ability to take into account genuine efforts at accountability on the national level and that it is indeed able to adapt to some extent. Now, we would take the view, much as the Government, that the role of the arrest warrants until now has been quite crucial and that the ICC maintains a very useful source of pressure, one that it would be far too early to remove. Apart from that, if Uganda comes into the situation where its inability to exercise jurisdiction changed, which was the ground on which it originally asked the ICC to intervene, if there is a factual change in circumstances to its ability to exercise jurisdiction, then we would believe that it is within the spirit of complementarity to allow them to attempt to do so.

  Q42  Mr Davies: I think you ignore a very important point. As you rightly say, up until now the ICC indictments have been a very potent weapon in this, they have had some force, they have had some effect and the reason is because the ICC up until now has been credible. If, as a result of this, what you do is you compromise the ICC's principles and develop the scenario set out by your colleague, next time around when there is an atrocity, the ICC warrants will not be so credible because next time around they will say, "This is not absolutely terrifying—it does not mean that I'm going to spend the rest of my life in jail. This just means that we will be made to enter a negotiation and it depends upon my bargaining power what kind of legal process we shall ultimately end up with".

  Ms Wierda: I should have clarified that we believe that the ICC judges are the ones that are, after all, making these decisions. We do not believe that they will be applying political principles in their decision-making. They will look at legal principles, they will apply legal standards, they will evaluate the processes that are taking place in Uganda and match them with those international legal standards, so we do not believe that that undermines the ICC's credibility. Obviously it creates certain difficulties in terms of timing in these discussions because we do not believe that the time to make an admissibility challenge would be now or even on the basis of the document, so it does not resolve the difficulty, but I believe their ability to decide in accordance with those international standards is not an attack on their credibility.

  Q43  Chairman: Can I ask you a question about the Government of Uganda. In the past, the Government of Uganda's approach, and you heard my question to our two Ministers, has been somewhat inconsistent. On the one hand, they have said, "It's a little bit of a problem, we can deal with it", the talks have happened and then they have escalated the pursuit. Are you confident that the Government of Uganda is engaging in this process in a different spirit from the past and it is also under the same kind of international pressure to act in good faith to try and secure a settlement through these talks and not resort to any kind of actions that would bring them to a premature end?

  Mr Afako: It would probably be foolish to attempt to speak for the Government of Uganda.

  Q44  Chairman: I am not asking you to do that.

  Mr Afako: What can be said is that this is the first time that you have had a set of talks mediated by a third country between the Government and the LRA. The Juba talks are very highly observed, as has been noted here this morning, and all of that puts pressure on the Government to keep faith. That does not mean that you rule out attempts to take shortcuts with the process, but it makes that much less likely. So in that regard the African observers, the role of former President Chissano and the participation of many other international development partners in the Juba Initiative Fund are all very important pressure points. Of course the communities, the populations in the affected areas, especially in northern Uganda, are fairly solidly behind any negotiated settlement for the reasons that were already discussed earlier to do with the settlement of the humanitarian situation in that part of the country.

  Mr Grono: I think you have seen that the Government of Uganda is taking seriously this peace process and it has advanced further than any we have seen. I think though that the real challenge is when we get to the crux of the issue that Mr Davies was talking about, which is that you will get to a stage where a decision has to be made on what is the settlement that is going to be arrived at, particularly in terms of dealing with those indicted leaders. I think that will be the challenging part of this process where you will see the true motivations of the parties being examined. The Government presumably wants to preference a peace process, it wants an end to the conflict that is devastating the north, the LRA perhaps too, but the question that will have to be settled is: if you have the International Criminal Court warrants in place, what kind of punishment would satisfy the requirements of the ICC statute? I may not be putting this very clearly, but I think what you are going to find is that the parties to a conflict will often be prepared to excuse each other of past atrocities, so you will get to a stage where the Government of Uganda and perhaps the LRA are prepared to say, "We will accept a certain degree of accountability that might not meet international standards", and the ICC will then have to decide and judge whether that meets their standards, and there are a number of provisions in the Act which allow for a balancing of that which we can go into, but I do think we have got a way to go before we can face that issue.

  Ms Wierda: I think it is useful to maintain pressure on the Government of Uganda, but an indicator of its seriousness, if you will, will also be its own willingness to submit to scrutiny or accountability for its role in the conflict in some shape or form.

  Q45  Hugh Bayley: What kind of penalty imposed by the courts of Uganda would satisfy the people in northern Uganda that justice was being done in respect of the four indicted leaders and what kind of penalty would satisfy the International Criminal Court that justice had been done?

  Mr Afako: That is a difficult call to make. In relation to the population of northern Uganda, one of the things that you will find in the agreement is the commitment to consult widely on various aspects of the agreement. That is important because people say different things depending on the point of the conflict, depending on whether they are in camps and desperate to get back home; if they get back home, they might take a different view on these matters. The starting point under the law of Uganda is that these sorts of crimes ordinarily attract the death penalty, so the first thing to be said is: we will move away from that approach. Where the pendulum will hang is not certain at this stage and it would be premature to guess because a lot of these consultations have not taken place. With respect to the ICC, one of the principles of the Rome Statute is actually deference to national penal approaches, and that is Article 80. That is significant because you will know that some states find life imprisonment inhuman and degrading and, therefore, would not apply it in their own jurisdictions, whereas under the Rome Statute that is perhaps acceptable. So there is some margin of appreciation, there is some latitude that states enjoy on the issue of punishment and I think that balance would have to be struck somewhere, and once it is struck, then, in making its judgment, the Court will take into account all sorts of other factors and not merely focus on the punishment.

  Ms Wierda: It is sometimes said that the Rome Statute is silent on the issue of punishment because it refers to effective investigation and/or prosecution, but of course we must presume that the Court is interested in penalties, although of course there is a lack of practice now. I would just point to developments in Colombia under the peace and justice law which are somewhat analogous with what is happening in Uganda. There, the Government has proposed penalties of five to eight years for its paramilitaries and for involvement in very serious international offences. It is quite possible that at some point we will be able to gauge how the Court might react to that, but it is too early to say as we are lacking practice in this area.

  Q46  John Battle: I would like to ask a general question about what, in your view, is the responsibility of the international community for ensuring that the conflict ends? Should they just leave it to the legal processes and step back or should they be more engaged and do you think the donors are doing enough to give practical financial support to the peace talks?

  Mr Afako: I would say regarding the international community that, because the talks have now started and the parties have agreed the framework for settling or attempting to settle the conflict peacefully, at this stage the effort should be to keep pressure up on both parties to keep the process going and to come to the earliest possible resolution of that matter and then go on to implementation. Of course there are issues within northern Uganda to do with the humanitarian situation, the return of civilians and so forth, and that needs to be well resourced and I think there is no lack of political will in that direction. In terms of practical support, yes, at home in Uganda, but also in the neighbouring countries that have been affected by the conflict, we need to make sure that once the insurgency is over, then people can return home. The legal aspect has been a bit of a paralysis because people do not know how to engage with the International Criminal Court because the Court is not meant to be political and states do not want to appear to be political. Indeed, the Juba Initiative Fund created a lot of angst amongst donors, I think, before they finally agreed to engage. I recall that when the Government of southern Sudan made its overtures to the LRA, a lot of the legal opinion, emerging even from some of the states now supportive, was that it was against international law to talk to a group that had members who were indicted, so to speak, by the ICC, and it took calm discussion of the objects of international law and the promotion of peace and so forth to come to this point where there is now support. However, I think we are going in the right direction and I think that states are beginning to find space even within a tricky, legal environment to operate and be supportive.

  Ms Wierda: I think also the issues that are addressed in the recent document, the agreement on principles, are really very complex. They call for an establishment of a range of mechanisms potentially; it is not just going to be about the International Criminal Court and engaging there. We think this range of mechanisms and indeed the consultation leading up to those mechanisms will all need support, and that there will be a very important role for the United Kingdom there.

  Mr Grono: It is critically important. These parties do not trust each other at all; they have been in conflict for more than 20 years. There is a real issue about whether or not they are both genuinely committed to a peaceful outcome. Now, the talks have been going on for a year, there has not been a significant assembly by the LRA at the assembly points, and the UPDF has not always behaved as it should have, and I think it is critically important that the international community maintain pressure on both sides. Britain has a role to play in maintaining, and using, its strong bilateral relationship with Uganda and maintaining pressure on the Government of Uganda to participate in good faith and to make it clear that, if the Government of Uganda does not support peaceful outcome, then it will be of concern. Likewise, pressure has to be maintained on the LRA. We can do things like look at the funding sources for the LRA, perhaps a UN expert panel can be looking at those issues, and some planning around what will happen if the peace process falls apart. You have to have disincentives for those considering pulling out of the process, and I think it is a critically important role for this Government to play.

  Q47  Hugh Bayley: Is the international community giving the ICC sufficient support in relation to these four indictees and in relation to the other cases that are before the Court and, if not, what more should it be doing?

  Mr Afako: I think the Court might feel that it has not been as strongly supported as it would have hoped. The reason for this is that the international community is grappling with a genuine dilemma and it is not straightforward to effect these arrests. If that had been the case, we would not be having this discussion—these people would be facing trial by now and the people of northern Uganda would have returned to their homes. The reality of the matter is that for 20 long years the LRA and the Government have been battling away within Uganda and the south of Sudan, and you are very familiar with the impacts of that. It is an untenable situation and I think the international community recognises that and that is where the tension arises. Should the international community now turn away from the process in Juba, for argument's sake, and begin to press for a military solution? Is there the political will to marshal what it would take, which has not been marshalled for the last 20 years? There is a difficulty, there is a real dilemma posed by the humanitarian impacts of the LRA's activities and I think that is what has given cause to pause and to give the process in Juba an opportunity to work something out. It is a more convoluted type of approach because it is a complex issue. What the international community can do is to keep faith with that process and trust the judgment of the ICC on the outcome and not, so to speak, talk out of turn, but let the judges decide this matter and allow the Government of Uganda its sovereign latitude to engage directly with the Court on this issue and we can sit back and wait for the judgment of the Court.

  Ms Wierda: The Court itself has been quite clear that it sees these dilemmas of peace and justice as dilemmas that it can approach, advancing on parallel track to any negotiation that is ongoing. The only thing that we would say, I think, about that is that its track also has to proceed and not be entirely contingent on, or interrupted by, the negotiation track. From that point of view, I think the Court not just in Uganda but across the board at the moment is concerned with state co-operation and what it can expect in these situations. I think it would be important for the international community at large to keep thinking of concrete ways and mechanisms to put in place adequate state co-operation so that the Court's gestures do not appear completely empty.

  Mr Grono: Your question was a little broader than Uganda, but I think Uganda is a difficult situation and the level of support is perhaps appropriate at this stage. I think it is much clearer when you get to a case like Sudan where you have arrest warrants issued, a clear statement on behalf of the Government of Sudan that they are not going to hand over the indicted individuals and it is a much easier case for the international community to respond appropriately, which we have not seen yet. The Prosecutor has come out and said that the international community should rally behind the Court. I think that is a much more important test case for cooperation at this stage and I trust again that the British Government will be in the forefront of efforts to support the process there.

  Q48  Hugh Bayley: To go back to northern Uganda specifically, when we were in northern Uganda we had a conversation with, I think it was, the Permanent Secretary of the Interior Ministry, whichever ministry is in charge of the police, about whether logistical help was needed to effect arrests. I came away with the conclusion that it was not logistically possible, that the failure to arrest the indictees was not because of logistical difficulties, but because of practical difficulties of identifying where they were and having a sufficient force of arms to capture them. Is it the case that the Government of Uganda has asked the international community for technical assistance of some kind to effect arrests and is there evidence that the governments of neighbouring countries have been willing to co-operate in an international community arrest process because, if that is not the case, then looking for some negotiated solution could just be the only way out?

  Chairman: As a supplementary to that, you have said that the LRA need to know what the consequences are of the talks failing. We have international engagement in the DRC, we have international engagement with bells on in Sudan, and obviously the international community is supporting Uganda, so in that context is part of the point that, "If these talks break down, do not be so confident that you would not actually be seized, arrested and dealt with"?

  Mr Grono: That is certainly the message that we would like to see out there. Of course it is complex because, for a start, the LRA leadership is located in Congo, so, as far as the Ugandan military forces go, there is a real issue there and we would be extremely concerned if they sought to cross over into Congo, particularly with the history of Uganda and Congo. There have been talks with the Congolese authorities and with MONUC, the UN mission in Congo. I think MONUC is unwilling to take a lead role right now because it does not see it as part of its peace-keeping role, but I think that is something that we should explore and we have certainly called for MONUC to provide support if the peace process falls apart. We also have a UN mission in southern Sudan which also is displaying a degree of reluctance to get involved in this because they say their mission is peace-keeping in south Sudan. The ICC at some stage signed a memorandum of understanding with the Government of Sudan pursuant to which the Government was supposed to provide some support, but it has, I think, since resiled from that agreement following the indictments against the Sudanese minister and the Janjaweed leader, so there is a very strong role for greater co-operation and I think some of the planning and thinking should be proceeding apace on that. There are talks, I do not know how far they have gone, but it is certainly the position that the British Government has played a facilitative role in encouraging talks on those issues. As far as the UPDF goes too, our reporting has said that we have seen a significant improvement in their capabilities over the last few years with assistance from other governments. I suspect that part of the reason you see the LRA in Congo right now is because of the greater abilities of the UPDF, but that does not go very far if they are not even in Uganda.

  Q49  Hugh Bayley: Should we expect the AU[10] to put in place an arrest strategy when you have people sought by the International Criminal Court who have been moving between three countries? It would be a military operation, would it not, let us be perfectly blunt about it, and it would be quite a challenging military operation? If the international community wants to leave the impression that a failure to do a deal on peace will lead to military intervention which will arrest the leaders of the LRA, then who should be responsible for constructing that military plan?

  Mr Grono: It is one of the great dilemmas of the ICC of course, that it has no power to execute its own warrants. So the problem that we see in Uganda, in Sudan, we will see, I am sure, in the Central African Republic and, if others are indicted, in Congo is this lack of ability to execute warrants. The AU may well have a role, but I think the AU would have more of a role in convening the respective governments to co-ordinate their efforts. We have to be careful about throwing too much responsibility on this fledging African Union. We are also asking it to lead the peace-keeping force in one of the world's most difficult conflicts in Darfur and we have asked it to lead a peace-keeping force in Somalia, so you have got two of the world's most difficult conflicts and it is too easy too often to say, "Well, the AU is the body with responsibility". So if you are talking about some kind of military intervention force, I think that would pose some difficult challenges, but certainly it could play a lead role in helping the Governments of Congo and Uganda and Sudan and South Sudan and talking about co-operating with their own military forces, in the event that the peace processes fall apart, to effectively respond.

  Mr Afako: I was going to say that for many people military options are not attractive and it is the case that you are not going to have a policing operation in effecting arrests and that it is going to be a military operation. We must always bear in mind that the LRA is not a volunteer force, but there are a lot of forcibly conscripted people there and many of them very young and we, therefore, must pause long before we inflict battle on them in the name of effecting arrests. If the international community has to protect civilians, then it has to do what it has to do, but in a context where there is dialogue and there is the possibility of exploring a peaceful outcome, then it would seem that it is morally dubious to inflict battle on children.

  Q50  Ann McKechin: I had the opportunity to meet with the Amnesty Commission a few years ago and, whilst certainly we would not doubt their commitment to the job in hand, to say that their resources were scarce would be, I think, a real understatement. I wonder to what extent you would agree that there are limitations currently to the Amnesty Commission fulfilling its present role in the reintegration of combatants. I was told that they only have a six-month running mandate and I wonder whether or not that is going to be extended for granting amnesties. And do you consider that there are any possibilities for expanding its function to take on a wider reconciliation programme and for negotiations to be successful at Juba?

  Mr Afako: On the resource issue, I think the World Bank has supported the Amnesty Commission in the last two years and they have carried out some resettlement, so they have paid out the backlog of resettlement packages for a number of people up to, I think, 10,000. So the machinery is up and running and it just needs to be topped up as and when you have numbers ready to be resettled. It is a simple package, as you know. It is merely meant to introduce people back to the community. The longer-term reintegration issues are perhaps not for the Amnesty Commission itself, but it would be for the Government to devise a strategy for that, so I am not worried about the capacity to carry out DDR[11] for the LRA or indeed the ADF,[12] which is still in western Uganda and Congo. As to the brief on reconciliation, that has come up quite heavily in the talks in Juba and parties are now exploring what the most appropriate mechanisms would be for that. Some of it could be done by the Amnesty Commission, but I suspect that they will be looking to see other bodies taking a more active role in promoting community as well as national reconciliation.

  Ms Wierda: I think a range of mechanisms would be appropriate also in the sense that often, I think, in post-conflict societies what happens is that reintegration benefits or packages for ex-combatants can raise tensions in the communities and can make victims feel ignored. I think again a range of mechanisms, including reparations, could help to balance some of those tensions and provide more community-oriented results.

  Q51  Ann McKechin: And they should be working in tandem presumably rather than as the Amnesty Commission on its own as at the present time?

  Ms Wierda: Yes, one would need a comprehensive strategy to deal with the range, including also of course the local level and traditional structures.

  Q52  Sir Robert Smith: In your evidence, Mr Grono, you said that, as part of a peace deal, there is a need for a very comprehensive redevelopment in the north, given the devastation it has gone through. What are the witnesses' views of the Government of Uganda's plans for peace, recovery and development in northern Uganda?

  Mr Grono: I am no expert on the plans that the Government has, but I do know that we have been doing some research into the needs that will be there in the north if there is a peace process and certainly my understanding is that there are two primary concerns. One is the resettlement and reintegration process, but another very closely related issue which has not received much attention so far is the land issue. You have a younger generation of people who have lived off the land in camps returning to their land and it is often very, very unclear as to who owns the land, and the boundaries of the land. If you add on to that the issue of returnees, I think you will have a very volatile mix in a lot of the north together with a lot of suspicion and mistrust sometimes of the intentions of those in the south regarding land in the north. I trust that one of the key objectives of any development effort will be dealing with a lot of the tensions that will arise throughout this process.

  Ms Wierda: I think there has not been a lack of plans on behalf of the Government, but with the PDRP I think we as an organisation are quite concerned that it keeps moving to implementation, and we would also echo the concerns voiced earlier this morning about consultation and about ownership and participation at the grassroots levels. We think that other areas that are in urgent need of attention are the situation of youth and children more generally, opportunities both in terms of education and in terms of vocational training, and also I think civil society and human rights organisations and such will need continued and urgent support to provide the counterweight to the Government in implementing the PDRP and various other strategies.

  Mr Afako: I am not very pessimistic about the outlook. I think that once the guns fall silent, you will find that the communities are very resilient indeed. We have had a lot of people displaced out of Uganda to neighbouring countries, to West Nile, for example, and most of the population was in Congo and Sudan and when they came back, there were no elaborate programmes for long-term reintegration and resettlement and it has picked up, so you will find that the communities are willing to go back and to rebuild their lives. I think we need to look at some of the more subtle impacts of the conflict, and the whole area of the psychosocial and psychological impact on young people and so forth needs to be addressed.

  Q53  Sir Robert Smith: But on the land issue, do you see that—

  Mr Afako: I do not see it being that volatile. Across Uganda, where there is population pressure, you will have problems of land and you particularly have problems of land where you have outside communities coming into the area and we have that in western Uganda at the moment. I have heard and read a lot about potential difficulties with land, but I think if you have a functioning dispute resolution system, local courts and a functioning formal judiciary, I think these problems will be contained because there is a strong insistence in northern Uganda that it should not go back into chaos.

  Q54  Chairman: Do you think people will mostly go back to their traditional land? We have had some suggestions that perhaps some of the returnees and others may be looking for more urban resettlements, but there is not necessarily more work in the towns. Do you think that will be a problem or will people tend to revert to their more traditional rural lives?

  Mr Afako: I think to some extent the opportunities will determine where people end up. A lot of communities across Uganda are subsistence, agricultural communities; they need the land, that is their livelihood. If there are jobs to be had in the towns, they will gravitate towards the towns, the unemployed youth and so forth. So you have that kind of problem, which is not unique to the north, but what we suggest should not happen is the kind of enforced middle way, settlements in the north between returning to communities and the current situation. I think people should be encouraged to go back to communities or remain where they are, which is their entitlement as long as they do not trespass on anybody's rights.

  Ms Wierda: I think the point on access to justice is a vital one. I think that is another area in which there would be need for quick improvement of how people can access systems to regulate their disputes.

  Q55  Hugh Bayley: Let us assume that the peace process brings the conflict to an end. What needs to be done to ensure that the views and aspirations of northern Ugandans are properly represented within the Government in Kampala so that this feeling of exclusion and resentment against the south is no longer a feature of Ugandan politics?

  Mr Afako: Part of the reason for the apparent polarisation in Uganda is the failure of the Government to end the conflict there. If you look at the situation in West Nile, which is now reasonably peaceful, you will not as often have the discourse of the north/south divide there and it is because people are going back home and they are doing politics in the good, old-fashioned way, so it will be for the electorate in the north to decide which government it wants to support. In the past, it has voted with the conflict in mind. That voting pattern might well change once the conflict is over and then political parties will have to pitch on issues of policy and delivery with the communities. The nature of the north/south divide will be interrogated and the parties in Juba have agreed to a process of analysis of the conflict which will bring out some of these issues. The Government contests that there is a north/south issue and is quite happy to have this whole business examined and publicly debated. I think that debate will be interesting and it will certainly have political implications in terms of how voters choose.

  Ms Wierda: We too see, I think, room for debate on national reconciliation. We would not like to see that whole debate squeezed into the Juba process because we think it is really a wider issue and that not all people who have a stake in that debate are able to participate very directly in Juba. We are encouraged by the suggestion to have this consultation now as part of the Juba process, but even that is very limited. In the aftermath of Juba I think that, through this process of historical analysis and through wider debates, Uganda can perhaps start to address this issue of a national reconciliation.

  Chairman: Can I thank you very much indeed. Obviously the situation in many ways has improved from when we visited in February last year, people are returning to their land, it is more secure and the levels of violence have dropped, but there is not a final solution and there is that uncertainty that things could degenerate. I think we all have to hope that the process will continue in a positive direction and normality will be restored and that ultimately the peace process will reach a conclusion which will give people real confidence to get back to normality and away from the camps. It has certainly been very helpful from our point of view to have your up-to-date views both on what you think is happening and the tensions around the ICC and the role of the Government of Uganda and the international community on which in some small way, this Committee hopes, it has helped to keep the spotlight. I think, from what you have said and from what the Ministers have said, clearly if the parties are aware that the eyes of the world are on them, it does appear to have a degree of concentrating minds to try and achieve results and, if we take our eyes away, then the danger increases. Thank you very much indeed; it has been extremely valuable to us.





10   African Union (AU). Back

11   Disarmament, demobilization and reintegration (DDR). Back

12   Allied Democratic Forces (ADF). Back


 
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