Memorandum submitted by the International Crisis Group

 

 

Conflict and Development: Prospects for Sustainable Peace in Uganda

 

 

1. What the impact has been of the International Criminal Court warrants on the prospects for peace.

 

The ICC unsealed warrants against five LRA commanders on 13 October 2005.[1] These rattled the indicted commanders, reduced their opportunity to emerge from the conflict with impunity and put pressure on Khartoum to cut its aid to the LRA. They gave the rebels an incentive to start talking about a peace agreement that might bring them immunity from prosecution. As the Ugandan Government's frustration grew at the seeming unwillingness or inability of others to execute the arrest warrants or otherwise help it resolve the LRA problem, it became more willing to consider diplomatic alternatives. But the warrants have also had costs. Difficulties in executing them showed the limitations of Uganda's capabilities and international readiness to support it in pursing those whose crimes are well documented. And they have complicated the peace talks.

All states party to the Rome Statute have a binding treaty obligation to "cooperate fully" with the Court.[2] Thus, Uganda has an international legal duty to arrest any indicted individuals it can. The Sudan government has signed a memorandum of understanding with the ICC pledging cooperation in the Uganda investigation, including execution of the arrest warrants in Sudan - though it has apparently now suspended cooperation under that MOU. The Congolese government is also a signatory to the Rome Statue, and the UN Mission in the Congo (MONUC) has signed a memorandum of understanding with the Office of the ICC Prosecutor to help assist DRC in arrest efforts.

The LRA is clearly aware of these obligations. When Riek Machar, Vice-President of the Government of Southern Sudan, and chief mediator at the Juba talks, urged that it boost the delegation's authority by sending at least one indicted commander to Juba, the LRA's deputy leader, Vincent Otti, refused. "It's easy for you to ask", he told Machar, "you're not indicted".[3] As long as arrest warrants hover over their heads, the indicted commanders are unlikely to risk immediate detention by appearing in Juba, though there are ways around this, including shuttle diplomacy by intermediaries. The warrants also give the government something of an additional advantage at the negotiating table, since the LRA knows that if the talks fail, the ICC threat will still be there.

Consequently, the rebels have demanded that the ICC cancel the warrants and terminate the prosecutions.[4] Museveni has, in the past, promised a blanket amnesty against domestic prosecution and a guarantee that no indicted LRA will be turned over to the ICC, despite Uganda's international obligations.[5] Riek has taken a middle position. "We are not telling the ICC to stop what they are doing", he told Crisis Group. "We are just asking them to give the peace process a chance".[6]

 

2. Whether there is a tension between the need for peace and the requirement for justice. (And if so, how best this can be addressed.)

 

Tension between peace and justice

There is a real tension between the need for peace and the requirement for justice. Clearly both peace and justice are of fundamental importance. But the fact is that when it comes to ending conflicts they can't always be reconciled in full, at least in the short term.

Where the tension is most apparent is usually during peace talks, as it is often at this stage that the parties find their thoughts turning to justice and accountability issues. The reason for this is simple, if distasteful - namely that they don't want their hard won peace to result in them being tried and imprisoned for atrocities they may have committed during the conflict.

This is why, in such situations, it is often necessary to make hard decisions about trading off justice for peace. However much we like to think otherwise, in such situations the cost of getting a peace deal is often a degree of impunity for the perpetrators. The impunity is sometimes, though increasingly rarely, explicit but more often these days it is implicit.

It should not be surprising that such trade-offs are made. One party or another to a conflict, and usually all parties, will have committed widespread atrocities - that, unfortunately, is the real world of conflict these days.

Such atrocities include massacres of civilians, mass rape, torture, and the recruitment of child soldiers and sex slaves - the whole gamut of human depravity.

Unless one party has been utterly vanquished, peace negotiations will usually bring together the parties responsible for such abuses, and a deal will depend on them agreeing to end their conflict.

The crux of the whole peace versus justice debate is what should be done in that situation - ie when a prospective peace deal is made conditional on a halt to international criminal prosecutions.

In these circumstances the overriding policy issue is often whether the important but uncertain prospect of deterring future perpetrators and reducing future conflicts takes precedence over more certain benefits of an immediate end to an ongoing conflict.

The first point that needs to be acknowledged is such deals often fail to produce peace. Failed amnesty agreements brokered with the likes of Foday Sankoh in Sierra Leone and Jonas Savimbi in Angola, and their violent aftermath, demonstrate the potential costs of impunity.

But deals have been done in the past that have offered limited or full immunity from prosecution, and have helped bring an end to conflict and instability. One obvious example is the one made with Charles Taylor to get him out of Liberia and bring an end to the conflict there. In mid-2003, rebel groups were advancing on Monrovia, shelling the city and attempting to starve it into submission. Taylor declared his intention to stay and fight the rebels - but Nigeria's offer of asylum ensured Taylor fled Liberia in July. His departure enabled the deployment of West African peacekeepers, bringing a degree of peace to the country, and saving many lives. Certainly that was the view of Nigeria's President Obasanjo, who claimed, 'By giving this one man asylum I have saved thousands of lives. What more does the international community want?'

In a different context, in South Africa, outgoing leaders were given amnesty as part of a truth and reconciliation process in an effort to bring 34 years of apartheid to an end. The likely alternative was many more years of conflict.

In Mozambique, after sixteen years of civil war ended in 1992, the Parliament adopted a general amnesty for all fighters pursuant to which reconciliation processes took clear precedence over accountability. Since then Mozambique has become one of Africa's more successful states.

For recent examples of deals to which serial abusers are party, look at recent peace agreements - backed by the US and EU - such as the Sun-City and related agreements that formally ended the Congo conflict in 2003; the Comprehensive Peace Agreement in Sudan in 2005 and the Darfur Peace Agreement last year; and the 2001 Bonn Agreement setting up a new government for Afghanistan. None of these agreements have blanket amnesties, unlike the Lome Agreement in Sierra Leone. Some of them have token transitional justice provisions, but for they most part they are silent on accountability for past atrocities, despite the fact that some of the biggest rights abusers are party to these agreements, or were put into power by them.

The importance of deterrence

Of course, any decision that is made with regard to balancing peace and justice in northern Uganda will resonate elsewhere. So if a deal is made to preference peace over immediate accountability in northern Uganda, will this promote impunity elsewhere, and undercut the deterrent impact of the ICC? The answer is - not necessarily so.

First, it is necessary to understand that the interests and motivations of parties to a conflict are different, and this may impact on how effective deterrence may be. A credible threat of prosecution may be less effective against rebels, at least until the late stages of their rebellion - by which time it is too late for them to ameliorate their conduct to escape prosecution. Most rebellions fail, and most rebels embarking on their challenge to the central government will not be concerned that in future years they may be held accountable for their likely future atrocities. Survival and success are much more immediate concerns.

In contrast, when it comes to the calculations of those in power, deterrence may have greater immediacy, and hence impact. If a credible threat of prosecution for future atrocities exists in the minds of a regime's leadership, then those leaders have something tangible to lose and arguably will weigh that risk when deciding on how to respond to a challenge to their authority. 

Second, deterrence will be effective only if the threat of prosecution is - as suggested above - sufficiently immediate and credible. The mere possibility of future prosecution is unlikely to have that impact, particularly weighed against other goals and interests such as the threat posed by a rebellion or the desire to overthrow a repressive regime. Until recently, prosecution was more theoretical than real, as the only vehicles for prosecution were ad hoc international tribunals, or domestic courts. The former were exceedingly rare, and reserved for crimes on the scale of genocide.[7] The latter could be defeated by amnesties in peace agreements, or exile.

The advent of the ICC - a permanent tribunal, with the power to initiate its own prosecution -- together with growing recognition of universal jurisdiction,[8] increase the odds of prosecution, and hence the potential impact of deterrence. In the past, most perpetrators were safe in the knowledge that they could safely outlast any international outrage at their actions. Absent a permanent court to try them, their greatest risk of prosecution came from being overthrown and put on trial by their usurpers. That in turn encouraged brutal measures to ensure that such a fate did not befall them. But such an approach will not work against a permanent tribunal or vigilant foreign courts. They can outlast any dictator, unless he dies in office.[9]

So the ICC and universal jurisdiction have the potential to give deterrence a credibility and validity it has not had before. In this they will support, and be supported by, the emerging Responsibility to Protect norm.[10] A key component of Responsibility to Protect is the responsibility to prevent serious harm from eventuating - and strengthening the impact of deterrence is perhaps one of the most effective ways give meaning to this component.[11]

But in the case of the ICC this will only happen if the Court can successfully pursue those in power most responsible for atrocities. That in turn will require stronger international support for the ICC than we have seen to date.[12]

Balancing the ICC's justice role with peace

The Rome Statute gives the Prosecutor of the ICC the power effectively to ignore amnesties granted to those most responsible for atrocity crimes, and to prosecute perpetrators if domestic prosecutions lack credibility.[13]

Without more however, the ICC's strong focus on prosecution could well present a very significant obstacle to peace agreements, even in situations where ICC prosecutions have little deterrent benefit, and where other objectives of accountability are unlikely to be achieved.

Of course, this only becomes an issue if the national jurisdiction, in this case Uganda, is itself not willing or able to prosecute the alleged perpetrators, under the principle of complementarity.[14] I will set out what this might require of Uganda in section 3 below.

The Rome Statute, however, anticipates that there will be situations where a balancing of peace and justice has to be made. Accordingly it sets up its own mechanisms to allow a balancing to be made. Article 16 of the statute allows the UN Security Council to defer ICC prosecutions and investigations for twelve months, renewable indefinitely. And article 53 gives the Prosecutor the power to decide not to proceed with an investigation or prosecution if it is not in the interests of justice.

Article 16 delimits the appropriate responsibilities of the Security Council and the Prosecutor. The Prosecutor has a justice mandate and should not be required to make the essentially political judgement of whether the prospects of an uncertain peace should take precedence over accountability. He should proceed with prosecutions where the situation warrants them, and if a balancing has to be made - and it should only be considered if major peace benefits are very likely to result - then it should be made by the Security Council.

The Security Council has a peace and security mandate. But, while it can put a prosecution on hold temporarily to allow a peace deal to be implemented,[15] it should be acutely conscious that indiscriminate exercise of this power in purported pursuit of peace will emasculate the ICC, and undermine efforts to institutionalise deterrence and human rights norms.[16]

It should therefore only intervene exceptionally, in those cases where its intervention will not significantly undercut the deterrent impact of the Court. It should insist on credible and sustainable peace agreements being in place before it acts, and its willingness to renew its deferral be conditioned on whole hearted implementation of such agreements. It should be more willing to act in situations such as that of northern Uganda, where ICC prosecution of the rebels is unlikely to greatly advance the deterrent impact of the Court - while significantly impeding reconciliation efforts - than in a case such as Darfur, where prosecution of those in the regime responsible for the state-sponsored campaign of atrocity crimes will send a very significant message to others contemplating such deliberate actions in the future that they will be held accountable. In so doing it will reinforce the lessons of the Milosevic, Taylor and Habre prosecutions, and potentially contribute significantly to the prevention of such state sponsored atrocities.

Balancing peace with justice in northern Uganda

The LRA's vicious guerrilla warfare has resulted in the utter devastation of much of northern Uganda. The LRA has unleashed a reign of terror over the past two decades, abducting more than 25,000 boys and girls, and turning them into rebel soldiers, porters and sex slaves.

The Ugandan government has responded to the LRA's campaign by unleashing its own campaign on the north, forcing over a million of the North's inhabitants (predominantly Acholi) to live in camps - condemning them to a life removed from their fertile land, with little hope for a productive future. The result, according to the government's own statistics, was that at the height of the conflict in 2004 and 2005 a thousand people a week on average were dying from conflict-related disease and malnutrition.

The LRA bears overwhelming responsibility for the atrocities in northern Uganda, and the suffering inflicted on its inhabitants. However, ICC prosecutions of Kony and LRA commanders - however meritorious - are unlikely to have much of a deterrent effect on future rebel leaders, particularly those possessed by spirits, or whose calculations are based on factors that it is very difficult to influence rationally.

In this case the immediate problem we now face is that Kony and his commanders say that they will not do a deal unless and until the ICC prosecutions are dropped. In fact, they won't even come to Juba for negotiations for fear of arrest. They continue to hide out in the Congo, issuing instructions by satellite phone.

So to get a peace deal to end this horrific conflict, and the ongoing suffering of a couple of million northern Ugandans, we need to consider whether to trade off a degree of accountability for peace. How can we best meet the objectives of both?

The best option is for peace deal which commits Uganda to conduct credible national prosecutions of the alleged perpetrators. However, if that does not happen, then the way forward is for the Prosecutor of the ICC to proceed with his prosecutions. He has a justice mandate and should not be required to make the essentially political judgement of whether the prospects of an uncertain peace should take precedence over accountability.

If a balancing has to be made - and it should only be considered if major peace benefits are very likely to result, and genuine accountability and reconciliation mechanisms are put in place - then the Security Council may have to intervene. Any deal to end a conflict that spans not only northern Uganda, but also Southern Sudan and the Congo will require a degree of UN endorsement and support. The talks have a long way to go before peace is imminent, but if they reach that stage, the Security Council should consider putting the ICC prosecutions on hold pursuant to article 16 to give peace a chance.

Such an approach is problematic for all parties. It may not be acceptable for Kony, because there is always the future prospect of the prosecutions being reinstated. It's not ideal for the ICC because it won't be able to proceed against some of the world's very worst war criminals while the cases are suspended, though it will be able to claim a role in bringing peace to the region. And, if there is a peace, and it does hold, then over time the Prosecutor will probably be under pressure to drop the cases in the interests of justice.

But what such an approach will do is give the millions in northern Uganda a chance to enjoy the peace they have thirsted after for twenty years.

These are not easy decisions, and often the choices we have to make are distasteful ones - but we don't do any favours to the causes of peace or justice by pretending that such choices don't have to made when it come to ending a conflict.

3. How, if at all, can the ICC, national and traditional measures combine to tackle impunity and further justice and reconciliation.

Any peace agreement for northern Uganda must include adequate reconciliation and accountability mechanisms, or set out a process for such mechanisms to be devised and implemented. The need for accountability mechanisms in any peace deal is not an external burden imposed by the ICC but something victims genuinely want.

Although bringing an immediate end to the conflict and the IDP camps is a priority, there is evidence that the people of northern Uganda want both peace and punishment of the LRA's leadership. A 2005 survey conducted in IDP camps throughout the north by the International Centre for Transitional Justice found that 76 per cent of the population believed that individuals who committed abuses during the conflict should be held accountable, and 66 per cent favoured some form of punishment (trial and imprisonment or execution) as the accountability mechanism, while only 22 per cent opted for forgiveness, reconciliation, and reintegration.[17]

Traditional reconciliation ceremonies receive tepid support in part because they are insufficient to the scale and nature of the conflict.[18] The most commonly advocated ceremony is mato oput, which requires a perpetrator to admit guilt voluntarily, ask for forgiveness and pay compensation to the clan of an identifiable individual who has been wrongfully killed. The victim's clan must accept the plea for forgiveness for the reconciliation to be complete. However, although Kony asked for forgiveness from southern Sudanese cultural leaders, he has consistently denied attacking Acholi in northern Uganda.[19]

Mato oput has never been applied to the types of crimes the LRA has perpetrated, such as abduction, mutilation, use of child soldiers and sexual slavery. There is no clear consensus about the elements of a ceremony among Acholi clans; the minor role for women marginalises female victims while reinforcing rigid male hierarchies.[20] The LRA's deputy leader, Vincent Otti told Crisis Group in November last year: "Mato oput would not be a good thing. When the paramount chief came to us we asked him about the mato oput and tried to correct him but he is very young...and he doesn't know anything.... I know very well what is mato oput, even more than the paramount chief and the other chiefs. What they are doing is very wrong". [21] Finally, mato oput, as an Acholi cultural practice, is of little relevance to the many other affected groups, such as the Langi and Iteso.

So if such processes are to form part of the accountability and reconciliation processes, they should also be combined with more formal legal mechanisms, such as truth commissions and prosecutions under Ugandan law. Whether or not they met the Rome Statute's standards would be assessed under Article 17, which requires the ICC, under the principle of complementarity, to defer to a genuine investigation or prosecution by the state concerned.[22]

If we get a peace deal, and if the Ugandan government does not conduct credible prosecutions, then the UN Security Council will have to consider whether to put the ICC warrants on hold under article 16 to enable the deal to be implemented. For this to happen the peace deal would need to include robust accountability mechanisms. Such mechanisms should aim to combine traditional reconciliation ceremonies and formal legal processes in a way that satisfies both the victims' need for justice and meets the Rome Statute's standards for accountability.

 

4. How best grievances, against the Lord's Resistance Army and the Government of Uganda, can be addressed.

 

Grievances against the LRA can best be addressed through the mechanisms outlined above.

 

As for grievances against the GoU, including the UPDF, there is currently a national legal system in place in Uganda that, in theory, can address such grievances. Of course, holding the government and armed forces accountable in practice may be difficult, if not impossible.

 

The peace talks will consider accountability and reconciliation processes, and the talks should also consider mechanisms that could be used to address grievances against the Government. For example, if the talks agree on the need for a truth commission, such a commission should be empowered to hear grievances against all parties - in the same way that the South African Truth and Reconciliation Commission considered abuses by all parties to the conflict in South Africa.

 

Further, as part of any peace deal, there is a need for very comprehensive redevelopment in the north, as this region has been utterly devastated by many years of conflict. Such a program would form an important part of any reconciliation effort, and would go some way to addressing some of the grievances of the local population.

 

 

 

 

 

5. 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.

 

Donors, who finance 40 per cent of Uganda's budget, must use this leverage to encourage the Ugandan government to genuinely seek peace and - if and when it eventuates - to engage in comprehensive and consultative re-development in the north to address decades of conflict. Donors should be prepared to use their economic leverage, including by redirecting funds from the government to direct support for humanitarian relief operations and capacity building in the north.

Donors should declare that they want to be Museveni's partner in building peace in the north and will support redevelopment but also that comprehensive solutions require active participation of northerners and that the Ugandan government will be held to its commitments.

The UN Special Envoy for the LRA-affected areas, Joaquim Chissano, should use his good relationship with Museveni to ensure the government follows through on rebuilding the north, promoting national reconciliation and bridging the north-south divide by creating a broad-based, follow-up forum led by northerners. A senior U.S. diplomat assigned to support the process could help him by drawing on Washington's strong bilateral relationship. The November Commonwealth summit (CHOGM) can apply added pressure, while the Great Lakes Security Pact and the East African Community are additional forums in which to focus regional attention on building a sustainable peace.

 

15 June 2007

 

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[1] The five commanders are: Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen and Raska Lukwiya. Raska Lukwiya was killed in fighting with the UPDF in August 2006.

[2] Article 86 of the Rome Statute.

[3] Crisis Group interview, eyewitness to meeting, 17 July 2006.

[4] For example, "Ugandan rebels in amnesty demand: Deputy Ugandan rebel leader Vincent Otti has warned there will be no peace deal unless international indictments for the top rebels are dropped", BBC, 6 September 2006.

[5] Museveni's options are limited. His offer of domestic amnesty cannot provide immunity from prosecution by an international tribunal. Nor is there any mechanism in the Rome Statute enabling a state unilaterally to revoke a referral or force the Court to close a case. Since the ICC is dependent on state cooperation, Uganda could in effect terminate the investigation by refusing to cooperate with the Court, though this could result in a judicial ruling of non-compliance and referral of the matter to the Assembly of State Parties, and is an unlikely scenario given the more than three year relationship between the Office of the Prosecution (OTP) and the Government of Uganda (GoU). With no access to witnesses, evidence, or indictees, the ICC would have difficulty proceeding.

[6] Crisis Group interview in Juba, 4 July 2006.

[7] For example, the Nuremberg tribunals, ICTR, and ICTY.

[8] The doctrine of "universal jurisdiction" gives national courts the competence to try persons suspected of a serious international crime-such as genocide, war crimes, crimes against humanity or torture - even if neither the suspect nor the victim are nationals of the country where the court is located.

[9] But cf President Mugabe in Zimbabwe.

[10] In 2005 world leaders, convening as the General Assembly of the UN, recognised an international collective responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This doctrine, known as "Responsibility to Protect" was subsequently endorsed by the Security Council, marking its emergence as a nascent international norm.

[11] While deterrence may give substance to the responsibility to prevent where atrocities have yet to occur, fear of prosecution may impact on the international community's responsibility to react where they have taken place. Such a fear may result in those responsible seeking to entrench themselves to avoid being held accountable.

[12] 104 countries have ratified the Rome Statute as of 9 June 2007. Of the P5, only France and UK have ratified it. The U.S., China and Russia all have strong objections to the ICC, although the outright hostility of the U.S. to the ICC in the first term of President George W. Bush appears to have softened more recently into wary agnosticism. The U.S and China abstained from the Security Council resolution 1593 (31 March 2005) referring the situation in Darfur to the ICC, allowing the referral to proceed.

[13] While the Rome Statute does not have specific provisions on amnesty, giving amnesty to those most responsible for atrocity crimes would amount to an unwillingness to prosecute by the national jurisdiction under the complementarity principle. Likewise, it could hardly be argued that amnesty of top leaders would be in the interests of justice (as opposed to peace).

[14] Article 17 of the Rome Statute.

[15] If an ICC prosecution is put on hold, and such measures are implemented, then it may well be that in time it will be appropriate for the prosecutor to exercise his power to stop the prosecutions in "the interests of justice". While the interests of justice don't necessarily equate with the interests of peace, if a society has achieved significant reconciliation, and is largely at peace and dealing appropriately with the legacy of past abuses, then the interests of justice may well be broad enough, and intended, to allow the Prosecutor to end his prosecutions.

[16] It would also be contrary to efforts to operationalise the responsibility to prevent component of R2P..

[17] "Forgotten Voices", International Centre for Transitional Justice (ICTJ) and the Human Rights Centre, University of California (Berkeley), July 2005. The ICTJ questioned 2,585 Acholi in 32 IDP camps. While this study is the most extensive and systematic survey of public opinion among Acholi IDPs, other research indicates that people may be willing to forgive senior LRA leaders. For example, the February 2005 Refugee Law Project report "Whose Justice? Perceptions of Uganda's Amnesty Act 2000" interviewed 409 people and found strong support for giving a blanket amnesty to all LRA, including Kony. For more detailed discussion of Acholi support for forgiveness and amnesty, see "Peace First, Justice Later", Refugee Law Project, July 2005.

[18] For a description of mato oput and a general overview of traditional reconciliation ceremonies in Acholi culture, see Liu Institute for Global Issues, "Restoring Relationships in Acholi-land: Traditional Approaches to Justice and Reconciliation", September 2005. In particular, pp. 66-72 provide an excellent discussion of the difficulties with adopting mato oput to the current conflict. It should be distinguished from other ceremonies, particularly the nyono tong gweno (stepping of the egg) ceremony. While this practice has become increasingly common, it is a cleansing ritual that has been adapted for the reintegration of returnees. It is not a reconciliation ceremony that involves any measure of accountability or admission of guilt.

[19] When asked about alleged abuses, Kony responded, "[T]hat is not true. It's just propaganda. Museveni went into the villages and cut off the ears of the people, telling the people that it was the work of the LRA. I cannot cut the ear of my brother, I cannot kill the eye of my brother". See "I will use the Ten Commandments to liberate Uganda", The Times, 28 June 2006. Similarly, when asked in a 1 August press conference if he was willing to stand trial before the ICC, Kony answered, "[n]o, no, no, because I have not done anything". "In the presence of Joseph Kony", Daily Monitor, 6 August 2006.

[20] As noted in "Restoring Relationships", op. cit., pp.64-65, women are allowed to participate in mato oput, but it is a male dominated process because women may not play the central role of mediator, and women's voices are too often ignored during the evidence-collecting phase.

[21] Crisis Group interview, Vincent Otti, November 2006.

[22] Article 17 requires the Court to determine that a case is inadmissible where it "is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution". Article 19 allows such a state to lodge an admissibility challenge once prior to trial, though second or later challenges may be permitted in "exceptional circumstances", and requires the prosecutor to suspend an investigation as soon as a challenge is made. It could resume only if the Court found the state to be unwilling or unable.