Memorandum submitted by the International
Center for Transitional Justice
REMARKS ON PROSPECTS FOR PEACE IN NORTHERN
UGANDA: 21 JUNE 2007
A. What the impact has been of the International
Criminal Court warrants on the prospects for peace
1. The Peace Talks currently ongoing between
the Government of Uganda and the Lord's Resistance Army (LRA),
hosted by the Government of South Sudan in Juba, may be the most
significant opportunity to date for a peaceful settlement to the
conflict in Northern Uganda. The negotiation, as may be expected,
is fragile and has suffered several challenges and setbacks. Particularly,
the Lord's Resistance Army has not yet assembled in the designated
area at Ri Kwangba. On the other hand, there has been considerable
progress, and it may be unrealistic to expect a quick and smooth
process. The process is delicate but seems to have momentum, and
is bolstered by the considerable personal efforts on behalf of
a variety of participants, including the Chief Mediator, Vice
President of the Government of South Sudan Riek Machar, and UN
Special Envoy Joaquim Chissano. At the same time, evidence is
still needed that both the Government of Uganda and the LRA are
fully committed to the process. The die is not yet cast.
2. The agenda at the Juba peace talks covers
five items, including (1) Cessation of Hostilities; (2) Comprehensive
Solutions; (3) Accountability and Reconciliation; (4) DDR; and
(5) A Formal Ceasefire. On occasion, the discussions have suffered
from a difference in vision. At the outset, the Government of
Uganda perceived the negotiations mainly as an opportunity to
demobilize and reintegrate the LRA back into Ugandan society,
thus eliminating the security threat currently posed. The LRA,
on the other hand, sought to resolve issues that it claims to
be to the root causes of the conflict in the North. The LRA has
therefore tabled a broader political agenda at the talks.
3. There is much controversy about the balance
between peace and justice in the context of Northern Uganda. The
main debate is about the role of the International Criminal Court
(ICC), which opened an investigation into events in Northern Uganda
in January 2005, and unveiled arrest warrants against senior LRA
leaders in Oct. 2005. The LRA, and particularly second-in-command
Vincent Otti, has repeatedly stated that the arrest warrants must
be lifted as a pre-condition to the signing of a final agreement
at Juba.
4. In practical terms, the impact of the
ICC on the Peace Talks has been at least three-fold:
(a) Proponents and opponents of the ICC alike
credit the arrest warrants for putting pressure on the Lords Resistance
Army to agree to the Peace Talks. The ICC itself would argue that
it has assisted to disrupt supply chains or other forms of support
to the LRA. In general, it has become more difficult for the LRA
to operate from Southern Sudan, prompting a change in their political
strategy, including their move to Garamba National Park in the
Democratic Republic of Congo (DRC), and a willingness to accept
the offer of the Government of South Sudan to mediate. Other events,
such as the clash with MONUC (the UN Mission in DRC) in January
2006, may have further contributed to the pressure, which is reflected
in the extensive references to the ICC in LRA interviews. The
arrest warrants have given impetus not only to commencing the
talks but also to sustaining them, as the LRA wishes to resolve
the issue of the warrants through the talks.
(b) The senior military leadership of the
LRA has not attended the talks in person because the four senior
leaders fear arrest in Juba. As a result, the LRA delegation is
composed largely of Acholi diaspora. While combatants sometimes
join the delegation, the senior leadership is physically absent.
Some would consider this a significant complication. Throughout
the process, there have been questions about divergences in the
interests of delegates at the talks and senior LRA leaders in
Garamba. The diaspora element has introduced additional political
issues into the talks. The absence of the military leadership
also prevents the building of trust and personal rapport. On the
other hand, in some circumstances the delegation acts as a buffer
between the government and the senior command, allowing for time
to pass for consultation on sensitive issues. It should also be
noted that the arrest warrants have not prevented direct contact
between the senior military leadership and the Government of Uganda,
as well as other senior officials such as former Head of the UN
Office for Coordination of Humanitarian Affairs, Jan Egeland,
and subsequently UN Special Envoy Chissano.
(c) Finally, and most significantly, if it
were not for the ICC arrest warrants, the debates around accountability
in and around Juba may never have reached current levels of intensity.
Uganda will benefit for years to come from having a national debate
on what forms of accountability are necessary. (This can be contrasted
with the Comprehensive Peace Agreement between North and South
Sudan in 2005, which concluded without the influence of the ICC.
As a result, debates on accountability were cursory, and an agreement
was quickly reached by both sides not to include the issue the
agreement.)
5. At the same time, there is no agreement
between significant stakeholders on what should happen with the
ICC arrest warrants going forward. Technically, the issue of the
arrest warrants is a matter for the ICC and entirely outside the
scope of what the negotiations at Juba are able to decide. Therefore
it would be disingenuous for anyone at Juba to make promises in
this regard. (At the most, the Government could extend a guarantee
not to enforce the arrest warrants should the LRA come into Ugandan
territory.)
6. It is also worth noting the impact of the
Juba Peace Talks on the ICC. Considerable pressure has built up
throughout the process on the Court, which may fear being designated
as a "spoiler" if the talks are not successful. This
pressure comes mostly from the interviews given by the LRA, which
in turn have impacted on general public opinion in the North.
Also, the climate for enforcement of arrest warrants has become
increasingly complex, with many States wishing to see what Juba
will bring rather than taking steps towards enforcement.
B. Whether there is a tension between the
need for peace and the requirement for justice. (And if so, how
best this can be addressed)
7. The urgency of resolving the conflict in
Northern Uganda cannot be overstated, in terms of the need to
improve conditions on the ground. The humanitarian cost of the
conflict in Northern Uganda, ongoing since 1987, has been enormous,
with 1.5 million people languishing in IDP camps in some of the
worst conditions anywhere in the world. The impact on women and
children has been particularly severe.
8. On the other hand, the tensions between peace
and justice are real. The pressure to please perpetrators should
not outweigh the need for regard to the needs and desires of victims.
If impunity prevails, victims may take measures into their own
hands (and indeed there have already been some attacks on senior
LRA leaders that have passed through the amnesty process). In
listing accountability and reconciliation as an Agenda Item in
the talks, both delegations have recognized the relevance of the
concept for finding a peaceful solution to the conflict, as well
as the need to seek a balance between the two concepts.
9. Part of this question is one of process.
Juba is not a forum to which many of the stakeholders have access.
The range of actors at the table in Juba remains fairly narrow.
For instance, there are very few female delegates, and civil society,
as well as religious and traditional leaders, have observer status
only. There will need to be other for genuine consultation, and
for giving victims a voice in deciding which measures may be most
appropriate. Indications at the time of writing are that such
a consultation may be mandated directly by the Peace Talks. This
would be very helpful in devising solutions that are seen as inclusive
and sustainable over time.
10. It is important that the Peace Talks should
endorse certain principles to govern the issue of accountability
and reconciliation, and the balance between the two concepts.
These principles should reiterate a commitment that there should
be no impunity for grave violations and a commitment to heeding
the interests of victims, including their demands for truth, justice
and reparations. The concept of mutual accountability will be
important. Also, ideally the principles should commit to measures
for non-repetition or the prevention of future conflict.
11. At the same time, the Peace Talks will need
to address the issue of mechanisms, and which mechanisms will
be the most suitable. This will be an area of great sensitivity.
While experiences from other contexts struggling with issues of
peace and justice such as Colombia may be instructive, Uganda
will have to devise its own approach to these issues, and cannot
simply apply a model from elsewhere. Consultation will be particularly
helpful on the issue of mechanisms.
C. How, if at all, can the ICC, national
and traditional measures combine to tackle impunity and further
justice and reconciliation/How best grievances against the LRA
and the Government of Uganda can be addressed
12. The debate on accountability in Northern
Uganda has often been framed as one of stark alternatives. The
LRA has advocated for traditional justice measures in combination
with a Truth and Reconciliation Commission. The Government of
Uganda on the other hand has referred to its obligations under
the Rome Statute, while it has also supported the use of traditional
mechanisms. (Early on in the process President Museveni said he
would issue an amnesty but this statement has since been withdrawn.)
But many in the North, including traditional and religious leaders,
civil society and humanitarian organizations, have voiced views
that the ICC poses a threat to traditional mechanisms. These groups
have shown a strong support for such local mechanisms, arguing
that they are more attuned to African culture in demanding "restorative",
rather than "retributive" justice.
13. However, legacies of human rights violations
such as those committed in Northern Uganda are complex in their
nature. Different kinds of crimes may have been committed over
time both by the LRA and the Government. No single mechanism can
encompass all different forms of victimization and perpetration.
A comprehensive approach to justice is therefore necessary take
into account all of these factors. During our general population-based
survey in the North, conducted in April- July 2005 in Gulu, Kitgum,
Lira, and Soroti, respondents indicated that they held views on
justice that encompassed a range of mechanisms, including assistance
to victims; traditional justice; trials; reconciliation; compensation;
and truth.[23]
14. A comprehensive approach will require multiple
mechanisms, dealing with localized and national dimensions of
the conflict. These multiple mechanisms should seek to fulfil
the goals of (a) accountability for perpetrators; (b) truth-seeking
on both a local and national level, including gathering information
on the whereabouts of missing individuals; (c) reparations for
victims (ie measures that seek to repair them for the harms they
have suffered, rather than measures that seek to meet their needs
in their current dire situation); (d) the effective reintegration
of former combatants, and security sector reform. Ultimately,
it is hoped that the combination of mechanisms would result in
a measure of reconciliation. The question then becomes one of
evaluation of existing (or proposed) mechanisms and how they should
combine.
15. There has been much discussion of Acholi
traditional justice ceremonies, including Mato Oput (also known
as the "bitter root" ceremony, used for inter-clan reconciliation).[24]
While these ceremonies were not widely practiced in the recent
past, many would argue that they have a role to play in assisting
the social reintegration of former LRA. There are many complex
social issues that can be foreseen in the aftermath of the conflict.
This is particularly the case in Acholi, where the society is
generally portrayed as traditional and cohesive (although extensive
displacement has had a negative impact). Many issues will need
resolving, in the aftermath of crimes such as widespread abduction,
disfigurement and mutilation, forced marriage and sexual slavery.
It is important that community-level approaches and structures
are put in place to meet these challenges.
16. Traditional ceremonies, such as Mato Oput,
may also be capable of addressing certain transitional justice
goals on the community level, such as truth-seeking and reparations
by perpetrators or their clans. But at the same time, traditional
justice mechanisms have certain limitations which are generally
recognized by delegates at Juba:
(a) It is not clear how ceremonies that are
commonly between clans within one tribal group would deal with
inter-tribal conflict between Acholi, Langi, Iteso, Madi, and
also possible victim populations in South Sudan.
(b) It is not clear how situations will be
dealt with where the perpetrator is unknown, or which traditional
justice ceremonies can apply to crimes other than killing such
as abductions or sexual offences. (Mato Oput generally requires
the perpetrator to be known).
(c) Many questions remain relating to capacity
and the practicalities ie how much can traditional structures
handle; are the traditional leaders currently in a position to
implement; are traditional structures sufficiently representative;
and so forth.
(d) There is a question whether the system
can remain voluntary with all the resulting implications, such
as the timeframe required to elicit a confession.
(e) Traditional justice, by itself, would
isolate the issue of accountability to the North and does not
address the responsibility of the Government.
(f) Traditional justice should be seen as
complementary to other accountability options, but not as an alternative.
In other words, it should be part of an overall approach.
17. The LRA has also, on multiple occasions,
stated that it wants to see the establishment of a Truth and Reconciliation
Commission to examine the root causes of conflict in Uganda. The
Government has yet to give its public position on this. Uganda
has a history with truth commissions. In 1974, President Idi Amin
Dada established a Commission of Inquiry into the Disappearance
of People in Uganda since 25 January, 1971. However, despite critical
findings, including reform of the police and security forces,
the Commission lacked sufficient backing by the President to play
a role in mitigating the crimes soon to be committed by his own
regime. In 1986, President Museveni established the Ugandan Commission
of Inquiry into Violations of Human Rights (also know as the Oder
Commission after the Supreme Court Justice Arthur Oder), with
a mandate to look into abuses of human rights between independence
(1962) and 1986. Due to lack of funding the commission was stalled
in its findings, and by the time it issued a report in 1995, so
much time had passed that public interest had waned.
18. While in the long term, a truth commission
designed to examine the period of NRM rule, including violations
as well as the role of the military could be beneficial to Uganda,
the overall political climate would have to be conducive. There
would need to be confidence that a commission would be able to
avoid political manipulation by the government. The concept would
also require the support of civil society in different parts of
the country. Discussions have only recently started among civil
society at the national level, under the leadership of the Refugee
Law Project. While a truth commission should be considered, the
question will need to be asked whether the political climate in
Uganda is optimum for a serious, introspective exercise at this
time.
19. Uganda's Amnesty Commission, created in
2000 pursuant to the Amnesty Act, also remains in effect. The
Act grants a so-called blanket amnesty for conduct, although it
requires individualized applications. It has long provided a legal
valve through which those who have taken part in insurgency escape
legal consequences for their actions through denouncing rebellion
and demobilizing. The Amnesty Act is unique because it (1) was
initiated by affected groups and was supported by a countrywide
consultation prior to coming into force; and (2) the amnesty has
enjoyed a level of support among affected populations. The latter
can be explained by the fact that many LRA recruits are abductees,
many of them children or youth. This creates an inherent ambivalence,
particularly among Acholi communities, as the LRA is basically
composed of their own children.
20. Some have suggested an expanded role for
the Amnesty Commission, to allow it to become more active on trying
to contribute to reconciliation. In research we conducted in Northern
Uganda together with UC Berkeley, many respondents expressed hope
that LRA would be required to confess (34%) or apologize (56%)
as part of the amnesty process. The Amnesty Act may allow for
this, in specifying that the Commission has the mandate to "consider
and promote appropriate reconciliation mechanisms in the affected
areas" and "to promote dialogue and reconciliation within
the spirit of this Act." However, two potential limitations
emerge: (1) there is currently no vehicle for "truth-telling"
in the Amnesty Commission's process; and (2) the Amnesty Commission
currently lacks the logistical capacity to play a broader social
role, and in fact struggles even with the role it has been assigned
in terms of reintegration. At the same time, the work of the Amnesty
Commission as a reintegration mechanism is vital and needs continued
support. It will be important to reassure combatants that there
is an alternative to fighting, and that they will be assisted
in reintegration. It is also important that it is understood that
there will not be a reversal to this situation for those who have
already gone through the amnesty process.
21. The institutions mentioned above do not
resolve the essential issue of the ICC arrest warrants. Lifting
the warrants, as demanded by the LRA, is not possible from a legal
perspective. While there is a mechanism in the Rome Statute to
halt an investigation or prosecution "in the interest of
justice" (Art 53.2.c), this may not necessarily result in
a withdrawal of the indictment, which would constitute a step
backwards in the judicial process. In any case, it currently seems
unlikely that the Prosecutor would apply to halt the prosecution
of senior LRA under Art. 53, ie in the "interests of justice".
The Office of the Prosecutor has issued a policy paper to give
further definition to this phrase. Its general policy will be
to proceed with investigations or prosecutions, unless there are
highly exceptional circumstances. The paper states that the interests
of justice and peace cannot simply be equated. Even if the Prosecutor
would apply to halt the proceedings, the Pre-Trial Chamber would
still have to make a decision and the judges may take a conservative
view.
22. There are some, including International
Crisis Group, who advocate for the Security Council acting to
defer the proceedings for one year at a time (Art 16). There are
distinct disadvantages in the premature use of this Article. If
it is used to promote a solution that condones impunity, it may
undercut the legal framework of the Rome Statute and may in fact
relieve the LRA from pressure even to continue the Peace Talks.
It may also set a negative precedent for situations elsewhere,
including for Sudan in Darfur, as the lesson may be that the best
way to avoid trial by the ICC is to apply political pressure to
force the Security Council to defer the case, in the face of threats
of violence or an escalation of conflict. Art 16 will not provide
the LRA with long-term legal certainty. It only offers a short-term
reprieve. To date, Art 16 has only been used for overtly political
purposes, in a US-instigated bid to provide immunity to peacekeepers.
On the other hand, Art 16 was inserted into the Rome Statute as
a mechanism to resolve conflicts between peace and justice, and
therefore remains a possibility if no other solution can be found.
Moreover, it may be possible to think of utilizing Art. 16 to
implement a peace deal that includes accountability- but for that
to be possible, the debate on accountability has to be held first.
23. Finally, some suggest that Uganda should
challenge admissibility under the complementarity principle (Art
17/ 19). In this scenario, Uganda would argue that it is able
or willing to exercise jurisdiction. Exploring complementarity
in the context of Uganda has certain advantages. We know from
our experience around the world that national justice options,
if compliant with certain standards, are able to have more impact
on the societies in which they take place. Another real advantage
of exploring complementarity is that it may serve to clarify the
accountability debate at Juba. So far, much of the debate has
been about the threat posed by the ICC. The LRA has stated that
it does not favour impunity but that it opposes the ICC's involvement
in this situation. If national accountability is explored, the
ICC may be released from the pressure of being seen as a potential
spoiler, as it makes an agreement theoretically possible, unless
the LRA's real position is that it will not subject to any robust
accountability mechanism. If that is the case, and if they want
impunity, this is likely to be resisted.
24. An admissibility challenge would however
require Uganda to demonstrate what has changed, ie that it is
now genuinely willing and able to exercise its own jurisdiction.
This is in part a legal but also a factual question. For instance,
if it is willing to exercise jurisdiction through a new arrangement
included at Juba, but it has no ability to do so, because the
LRA remains out of reach, an admissibility challenge may not be
possible. Whatever the approach to accountability taken at Juba,
it will require a complete commitment by both sides, and concrete
steps to show willingness to move towards implementation, rather
than just an agreement on paper, with no guarantees of implementation.
In other words, the LRA would need to return to the territory
of Uganda to show their willingness to take part on a national
arrangement. These would be the preconditions for a successful
complementarity challenge.
25. What else would be required to succeed in
an admissibility challenge? Art. 17 of the Statute refers to a
State Party's "ability or willingness genuinely to carry
out the investigation or prosecution". There is some debate
amongst scholars about whether this requires criminal investigation.
The Preamble of the Rome Statute expresses a clear preference
for criminal jurisdiction, but is not part of the Statute as such.
Some have argued that an investigation by a truth commission would
suffice, but this seems unlikely, as non-use of criminal jurisdiction
may show unwillingness. In any case, it is fairly clear that traditional
justice mechanisms by themselves would not constitute an adequate
basis for such a challenge. If a legal mechanism is established,
complementarity will give rise to a number of complex questions
about Ugandan law. The Lubanga case before the ICC held that for
the purposes of complementarity, national authorities should charge
the same accused for the same conduct. To date, the Rome Statute
has not been domesticated in Uganda, so that certain of its crimes
do not exist in Ugandan law. While there is a Geneva Conventions
Act that covers grave breaches (requiring proof of international
armed conflict), war crimes in internal armed conflict and crimes
against humanity are currently not domestic crimes.
26. All of this is complicated by the fact that
apart from the ICC, there currently exists no investigation against
senior LRA leaders, so that the threat of domestic prosecution
may seem remote. Another difficult question is what constitutes
suitable punishment. It is clear that a de facto or de jure absence
of punishment may give rise to impunity. At the same time, people
in Northern Uganda have said to us that for them, a prison term
in a Western- style prison in The Hague, with all its facilities,
does not necessarily constitute punishment, and that they would
emphasize confrontation with victims or communities which have
been harmed. However, international human rights groups argue
that non-custodial options would not be proportionate to the crimes
committed. In any case, penalties are case-specific and must take
into account all the relevant circumstances.
27. Early in the debates, there was some suggestion
that punishment as such was not an important cultural norm in
Northern Uganda, and that Acholi in particular preferred forgiveness
and reconciliation. However, our research among general populations
in the North, including two Acholi and two non-Acholi districts,
indicated that 66% felt that the LRA should face a form of punishment,
including trial, imprisonment, or death, whereas 22% emphasized
forgiveness, reintegration and reconciliation.. It may be opportune
to include issues of what constitutes adequate punishment and
its forms in another consultation.
28. The question of incentives will also need
to be addressed. Senior LRA leaders will be keen to avoid outright
humiliation and will not sign an agreement that requires them
to spend the rest of their lives in prison. In Colombia, paramilitaries
have agreed to subject themselves to a government scheme where
they can benefit from reduced sentences if they agree to contribute
to disclosure about the crimes, and reparations. Their original
sentences are suspended but may revive if certain conditions are
breached. It is unclear whether such a similar scheme may also
be acceptable in the context of Uganda. For instance, one approach
could entail the appearance of senior LRA leaders before a special
panel of judges, perceived as independent, with the option to
participate in disclosure and / or participation in direct reparations
for the sake of a reduced penalty. This scheme should go beyond
just those leaders that have been subject to the arrest warrants
(which admittedly raises complex questions of a cut-off point).
(It should be noted that traditional justice emphasizes disclosure
and reparations, and that a role for traditional leaders in facilitating
social reintegration in cases that do not require penalties could
be devised.)
29. While none of this poses concrete answers
about the way forward, it is suggested that these are the matters
that should be explored in the further negotiations. For instance,
it is not clear whether the Ugandan Government will allow the
UPDF (Uganda People's Defence Forces) to go through the same accountability
mechanism as the LRA, as they are already subject to courts-martial
(although these proceedings are far more likely to be implemented
against ordinary soldiers than senior commanders).
30. Reparations too will be an important topic
and perhaps both a realistic and a meaningful way to achieve a
measure of government accountability for policies that have inflicted
harm on the civilian population, including policies of neglect
(such as the conditions in the camps or the absence of adequate
protection). This could include establishment of a reparations
fund for the North, with awards that can be made to communities
or groups on account of their suffering, with an acknowledgement
of that suffering. (Our general population research indicated
that a majority of respondents (58%) favoured community reparations.)
31. Inevitably, there may be those who argue
that if Juba opts for a national approach to accountability, this
may undermine the ICC in one of its first cases, and that the
focus should be on effecting arrest warrants. However, if a robust
accountability option is found, ie one that complies with the
Rome Statute, it can be argued that this is exactly the way in
which the Rome Statute was intended to function in terms of complementarity.
The Rome Statute is, after all, about a system rather than just
about a Court. If Juba adopts a robust approach on accountability,
this constitutes a success for the Court, rather than a failure,
even if it does not result in trials in The Hague. If no such
robust approach is taken, the arrest warrants are likely to remain
in place and the system will require the Court to exercise its
jurisdiction.
D. How the international community can help
to create the conditions for sustainable peace and re-development
in the north if the peace talks are successful
32. This last question is outside the scope
of our expertise, but I have a few observations on this topic:
(a) In late 2005 we carried out an assessment
in Northern Uganda on humanitarian assistance issues, for the
MacArthur Foundation. Our recommendation to them was to focus
on children and youth in the North. Education, for instance, has
been a heavily neglected area- including particularly secondary
education.[25]
(b) Likewise, the development of access to
justice and rule of law in the North should be a strategic area
of involvement, but is often neglected in post-conflict contexts.
(c) Programs such as the National Peace,
Recovery and Development Plan for the North (PRDP), should not
be mistaken for reparations programs. Victims need and deserve
both but these serve different objectives. The PRDP should move
towards implementation as quickly as possible, to allow for the
benefits of a peace dividend.
(d) One should be careful to balance the
benefits made available to ex-combatants under Disarmament, Demobilization
and Reintegration with benefits to the communities or victims,
or else this may give rise to further tensions. This has already
been a source of conflict in regard to the Amnesty Commission's
reintegration packages.
23 "Forgotten Voices: A Population-Based Survey
on Attitudes about Peace and Justice in Northern Uganda",
International Center for Transitional Justice and the Human Rights
Center, University of California at Berkeley, July 2005. Back
24
The Acholi are the tribe most affected by the conflict, as the
vast majority of LRA hail from Acholi, as do many of the victims,
particularly from before 2003. Back
25
"War-Affected Children and Youth in Northern Uganda: Toward
a Brighter Future", John D and Catherine T MacArthur Foundation
and the Government of Canada. An Assessment Report, May 2006. Back
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