Fostering Peace and Ending Impunity: The International Criminal Court, Human Rights, and the LRA

“When the destructiveness of war overtakes a society, peace is sometimes difficult…to imagine.” Nowhere in the world does this statement have more veracity than in the Great Lakes region of central Africa. For more than a generation, this region has been ravaged by hostilities. One of the most devastating conflicts in the world has been the rebellion of the Lord’s Resistance Army (LRA) against the government of Uganda. This twenty-year conflict in northern Uganda has been particularly horrific, creating suffering on an unimaginable scale while the efforts of the Ugandan government to quell the LRA’s rebellion have been unsuccessful. When the government of Uganda referred the leadership of the LRA to the prosecutor of the International Criminal Court (ICC), international attention focused on the crisis and top LRA officials were indicted, bringing renewed prospects of justice and peace. However, when the ICC announced that its first investigation was to be conducted in northern Uganda, it was met with intense criticism from organizations working there. The opponents of the investigation argued that the ICC’s inquiry was hindering the prospects for peace.The ICC’s involvement in northern Uganda sheds light on an important question: what roles will the ICC intervention and human rights play in creating peaceful states? After the government of Uganda called for an investigation in late 2003, the court proceeded with an extensive nine-month inquiry, and subsequently issued warrants for the LRA leaders. These warrants are complicating an already difficult peace process; in fact, the “LRA's leader, Joseph Kony, has made it clear that he and his fighters refuse to sign any accord until the outstanding International Criminal Court (ICC) warrants on five LRA members are dropped.” The case of Uganda and the northern rebels illustrates the contentious relationship between seeking justice and fostering peace. This essay will address the controversial correlation between ICC intervention and creating lasting peace in Uganda, while also examining the issues that are making the ICC’s inaugural case so problematic.

The Development of Criminal Jurisdiction of the ICC

The impetus for the establishment of the ICC began in 1989 as a way to prosecute drug trafficking at the international level. Through a series of draft resolutions, consultations, and ad hoc commissions, the Rome Statute of the ICC was completed on July 17, 1998 and entered into force on July 1, 2002.The ICC is the “first permanent, treaty-based, international criminal court established to help end impunity for the most serious crimes of concern to the international community.” The ICC has jurisdiction over four specific crimes: those of genocide, those against humanity, war crimes, and crimes of aggression. Genocide, under the Rome Statute, is defined as acts intended to destroy national, ethnic, or religious groups. Crimes against humanity, according to the Rome Statute, are defined as:any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack: murder, extermination, enslavement, deportation or forcible transfer of a population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity, persecution against an identifiable group, enforced disappearances, the crime of apartheid, and other inhumane acts of similar character intentionally causing great suffering or serious injury to body to mental or physical health.Article 8 of the Rome Statute “provides a broad enumeration of war crimes when committed in an internal armed conflict such as that underway in northern Uganda,” but because of the length of the article, the specifics of what constitutes a war crime will not be articulated. The crime of aggression as of this writing does not have an accepted definition, and, as a result, cannot be actively enforced.The parties to the Rome Statue have agreed to abide by and prosecute offenders under these definitions; and, while many governments, individuals, and rebel groups could potentially become the targets of ICC jurisdiction, the LRA has emerged as one of the focal points of the ICC. Due to the scale and gravity of abuses committed by the LRA since 1986, and more importantly since July 1, 2002 (when the Rome Statue came into effect), it should come as no surprise that once the ICC’s investigation commenced, five of the top LRA officials, including its leader Joseph Kony, have been issued arrest warrants for “crimes including widespread or systemic murder, sexual enslavement, rape, and war crimes such as intentionally attacking civilians and abducting and enlisting children under the age of fifteen.” The indictment of the LRA leaders is a positive step for international justice and ICC legitimacy; however, the indictments raise a number of critical questions of a legal and practical manner.

Establishing a Historical Record

For the last two decades, the LRA has been waging a conflict in northern Uganda against the government controlled by President Yoweri Museveni and the National Resistance Movement (NRM). This conflict has been largely ignored by the international community since 1986, though it has been characterized by Jan England, the UN under-secretary general for Humanitarian Affairs, as “one of the worst humanitarian crisis in the world.” The causes of this rebellion, like that of many conflicts in Africa and around the world, have both political and economic roots; nevertheless, the suffering inflicted by the LRA “has shocked the world and is seriously damaging Uganda’s image as a country ready for take-off.”The many conflicts Uganda has experienced since independence, including the current crisis in the north of the country, can be traced to “the legacy of colonial policies of divide and rule that developed the country unevenly and encouraged regional rivalries.” However, the impunity and brutality that the LRA has demonstrated is uncommon among rebel groups. “LRA rebels do not capture territory but they kill, abduct, or maim civilians including children.” Moreover, because they “control no territory and rarely try to capture strategic government assets,” defeating them has been exceedingly problematic. While their articulated mission has been to “install the Ten Commandments in Uganda…from its inception until the present, the LRA has had no coherent ideology, rational political agenda or popular support,” which makes brokering a peace agreement problematic.“The LRA headed by Joseph Kony, can be said to be a successor to Alice Lakwena’s well-known Holy Spirit Movement (HSM).” The HSM was a response to the repeated failures of the Ugandan People’s Democratic Army (UPDA) to overthrow the regime of Museveni, and to protect the Acholi people that reside in the north. “Both traditional and Acholi society are difficult terms; one can hardly speak of a unified Acholi nation before colonialism.” Up until Museveni took control of the government in 1986, the Acholi people of the north had a prominent role in the structures of the Ugandan state. When Obote’s government was toppled and Museveni ascended to power, the Acholi lost the influence they had possessed under former regimes. The Museveni government favored the south of the country and ruled through what has been termed semi-authoritarianism. This type of rule is characterized by Museveni allowing for greater freedom of speech and association, improved respect for human rights, elections, an independent press, and the formation of autonomous organizations; however, it should be noted that machine politics remained the basis for political support, and the spoils of patronage continued to be distributed along ethnic and regional lines. More importantly, Museveni and leaders of other semi-authoritarian regimes “have gone only as far with political reforms as they have felt necessary to satisfy domestic and donor pressure.” The Museveni regime also had an “unflagging belief in the efficacy of military action to solve virtually every political problem.” Given the abusive conduct of the government army during 1986 and the ethno-regional disparities between Acholi northerners and those in the south, it is understandable that the Acholi were weary about the government’s capacity and willingness to provide security in the north.After Museveni took control of Uganda, the Acholi people, along with remnants of the Okello, Obotoe, and Amin regimes, attempted to “regain at least part of their former power through military and diplomatic channels.” However, their mechanism (the UPDA) proved ineffective. The defeat of the UPDA gave rise to Alice Lakwena who was able to gain widespread support throughout Acholi-land, both as a military leader and as a spiritual medium. In fact, Alice Lakwena was born Alice Auma, and it is claimed that her body was possessed by Lakwena, “the spirit of an Italian who died during the First World War.” Her power within the community was so great that “she exhorted her soldiers to overthrow the newly established NRM government and told them that bathing in holy water would make bullets bounce off of them and that the stones they threw would turn into grenades.” Her popularity with the people, however, did not translate into military victory, and she was eventually defeated by the NRM in November 1987. Her predecessor Severino, who was much less popular, suffered the same fate as Lakwena. “The conclusion of an accord with the UPDA and the defeat of both Alice and Severino could have meant that peace was at last installed in Acholi land…[but] with a population still suffering from shock and an army and civil organization operating in a twilight zone between occupation and legal administration, one could hardly expect harmony to blossom overnight” Because of the instability and insecurity that existed in the north of the country, Joseph Kony, who is the cousin of Alice Lakwena, was able to capitalize on the state’s weaknesses in order to gain an advantage within the north.Joseph Kony’s campaign grew out of his experiences with the UPDA and his dealings with the HSM. When the UPDA signed a peace agreement with the government and after the HSM was destroyed, Kony was able benefit from the lack of leadership. Using his family background and strong rhetorical skills, Kony became the next personality attempting to create a purified Acholi nation. Answering only to himself, this new rebellion was, from the very beginning, “a mixture of political entrepreneurship, personal frustration, and warlordism.” As a result the “LRA operations were not very successful, because the popular support was considerably less from the UPDA and Alice’s movement.” “The LRA’s lack of popular base [is] demonstrated most clearly by its almost exclusive reliance—85 percent of its forces according to some sources—on the abduction and forcible conscription of village children for its membership.” The LRA’s campaign in the north resulted in abuse of the Acholi people whom the LRA are rhetorically fighting for. The Acholi, as a result, were to “bear the brunt of the destructive raids and abduction.” The ability of the unpopular LRA to continue resisting Kampala was the result of continuous assistance from the Sudanese government in Khartoum. Recently, however, Kony has “been deserted by his former backers in Sudan’s central government in Khartoum.” This abandonment by the Sudanese has led many to believe that this conflict, which has displaced “over 1.5 million people,” killed thousands, and destroyed the lives of a generation of children, may be coming to an end.On August 26 2006, there was a formal cessation of hostilities between the government in Kampala and the LRA. However, it remains to be seen whether a formal peace agreement will emerge. The International Crisis Group is optimistic, stating, “the peace talks in Juba between the Lord’s Resistance Army and the Ugandan government have made surprising progress.” However, they also recognize that the talks “may yet fall apart.” With the development of a cease-fire and peace talks underway, the prospects for negotiated peace are possible, yet fragile. Nevertheless the negotiators—the governments in Kampala and Khartoum, the LRA, and the international community—have to remain committed and steadfast in their approach if peace is ever to emerge from the ashes of northern Uganda.

Offenses of the LRA

The LRA, while lacking any coherent or consistent ideology, has been coherent and consistent in its brutality. The instances of abuse are widespread and well-documented: the LRA has committed mass killings of civilians in northern Uganda; abducted men and boys to serve as soldiers and girls to serve as sex slaves; beaten and mistreated civilians; mutilated victims by cutting off hands, lips, feet, noses, ears, breasts, et cetera; and is responsible for widespread rape. These experiences have had an untold effect on the victims. For example, speaking about an uncertain future, a boy within the LRA hierarchy comments:I am afraid to go back home to my village, because the rebels are still there in plenty. I fear they will kill me if they come to know of me here. I was in primary three when I was abducted and I would like to go back to school, if there was somewhere safe. I don’t know. I am sad now. The other thing I would like to say is that I experienced the death of many children. I wish there could be a solution. (William, 10)Abducted women face equally tragic situations. One young woman living within the hierarchy states:After the military training, I was given to a man called Otim. There were five women given to one man. The man I was given to was very rude to me: he thought I wanted to leave him and escape. He beat me many times with sticks. He thought I wanted to escape. Now I’m going to be a mother soon. I don’t want to be a mother at this age. But it happened and I must accept this. (Sarah, 17)Moreover, the LRA has “engaged in wanton destruction and pillage of civilian property, including burning and looting thousands of homes, storage granaries, and shops. The LRA has even attacked humanitarian convoys belonging to the UN World Food Programme.”This short analysis, coupled with the many reports issued by various NGOs and the UN, and ever-expanding legal and academic literature documenting the atrocities committed by the LRA, illustrates the massive injustice that has unfolded in Uganda. In this light, it is clear that the ICC has sufficient evidence to charge the members of the LRA with both war crimes and crimes against humanity.

Obstacles and Issues in Ending LRA Impunity

The ICC was developed to hold persons accountable for the most egregious violations of international law and decency. However, because the court was designed to “complement, not replace, national criminal justice systems, [the ICC] can only prosecute cases if national justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such proceedings.” This principle, called the Principle of Complementarily, is embodied in Article 17 of the Rome Statute. This principle presents a problem for the ICC when justifying its involvement in the LRA case. The government of Uganda, upon submitting the voluntary referral to the ICC, relinquished its jurisdiction over prosecuting the LRA; yet, the principle expounded upon in Article 17 would still “apply in cases of states’ voluntary relinquishment of jurisdiction to the ICC. Consequently, a state referral that does not meet the criteria of unwillingness or inability specified in Article 17 (2)-(3) would be declared inadmissible.”The willingness of the government to put an end to the conflict is evident by its continued persistence to rid the country of the LRA, as demonstrated by Operation Iron Fist in 2002, the Amnesty Act of 2000, and the bilateral agreement between the governments of Sudan and Uganda that allows the Ugandan military to pursue the LRA in southern Sudan. Moreover, the government’s willingness to try state officials for grave violations dispels the notion that the Ugandan judicial system lacks the ability to genuinely prosecute. Furthermore, “in 1995 the possibility was raised of voluntary relinquishment of jurisdiction by states in favor of the Court with respect to the crimes in the Statute, [concluding that] the international court should in no way undermine the effectiveness of national justice system and should only be resorted to in exceptional cases” Yet, while Uganda “possess a judicial system that is recognized for its independence and that has not collapsed as a result of the armed conflict in the north,” it can be argued that “the primary reasons for invoking ICC jurisdiction would be that the LRA leaders could not be arrested since they were outside Ugandan territory.” Whether this claim is valid or not is outside the scope of this writing; however, the Office of the Prosecutor must adequately address the issue of admissibility in the Ugandan case in order to foster neutrality and to ensure that ICC proceedings are not seen as a political tool. It should also be noted that “the ICC has asked the governments of Uganda, Sudan, and the Democratic Republic of Congo to execute the warrants against the indicted LRA leaders, [and] Uganda’s Defense Minister, Amama Mbabazi, is said to have assured the ICC that Uganda is ‘ready to carry out this task,’” further reinforcing the argument that the ICC’s claims over jurisdiction are inadmissible.In order for the ICC to develop legitimacy in dealing with international justice issues, it must be viewed as a neutral and independent body. In this respect, the court must “ensure to the greatest extent possible, objectivity and transparency in the selection of cases by the prosecutor.” If the ICC wishes to establish and retain legitimacy, it must investigate all actors of possible atrocities, including the Ugandan government and the Ugandan People’s Democratic Army (UPDF). “Just days before the ICC unsealed the warrants against the LRA leaders, HRW published a report in which it documented numerous instances in which the UPDF has been responsible for committing rapes, torture, killings, arbitrary arrests, and detentions of the civilian population in northern Uganda.” Additionally:the displaced people’s camps themselves were created through a government campaign of displacement, including bombing and burning down entire villages. Those in camps cannot leave because the UPDF kills civilians outside them. The government does not protect the camps, so they are easy targets for the predation of the LRA – and often of underpaid, undisciplined UPDF soldiers. The failure to provide food, medicine, decent housing, and protection, in direct contravention of the Geneva Conventions, has led many Acholi to see the camps not as ‘protected villages’ (the government’s euphemism), but as a calculated effort to destroy the Acholi as an ethnic group – as genocide.The investigation and prosecution of LRA members suspected of gross violations of international law must be accompanied by an equally robust investigation of government abuse. In 2004, Museveni was quoted as saying, “I am ready to be investigated for war crimes…and if any of our people were involved in any crimes, we will give him up to be tried by the ICC…and in any case, if such cases are brought to our attention, we will try them ourselves.” While this statement indicates that the Ugandan government is willing to cooperate with an investigation, it also demonstrates a preference of the Ugandan government to try its own people in national courts. This development is concerning on the grounds of selectivity. The prosecutors for the ICC cannot allow the government to try nationals suspected of gross violations, such as those outlined in the Rome Statute, without appearing biased. If ending impunity in Uganda is a serious goal of the international community, the ICC must also assume jurisdiction over crimes committed by the government and the UPDF along with the LRA indictment. Failing to hold all guilty parties accountable will make the search for justice incomplete, creating “a process which is set up to mete out justice but which ends up being partial or incomplete…is often regarded as having made the situation worse.”The involvement of the ICC in the northern Ugandan conflict has also been troublesome with regard to establishing peace in the region. Within the Rome Statute, the prosecutor under article 53(1)(c) “must consider whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” Given the significant outcry from NGOs operating in the north, as well as from Acholi leaders, it remains to be seen whether this subjective criteria has been met. The international support for the ICC’s involvement has been astounding, and the international consensus is that “to let the LRA leasers off completely would be to send the wrong message to other potential perpetrators.” However, without peace in northern Uganda, the international laws and norms that are articulated in Geneva, New York, and The Hague will be meaningless to the millions who continue to suffer as a result of this protracted conflict. If the people of northern Uganda have to decide between justice and peace, it is apparent that they will choose peace. “The Catholic Archbishop in northern Uganda, John Baptist Odama…sees the courts’ decision to issue indictment against the LRA leadership last year as the ‘last nail in the coffin’ for efforts to achieve dialogue.” Betty Bigombe, who has been instrumental in trying to broker a lasting peace, has accused the court of “seeking ‘to prove itself at the cost of peace.’” Furthermore, “Acholi delegations traveled to The Hague to beg the court to withdraw its arrest warrants and allow traditional African ceremonies of reconciliation and forgiveness to prevail.” Criticism has also come from the local and national government. Many regional politicians have warned that “calls to prosecute Joseph Kony, the LRA leader, could trigger fresh violence,” while those in charge of the Amnesty Commission have “been the main opponents of the agreement of the Ugandan government and the ICC prosecutor to investigate the LRA” Even though Richard Dicker, director of Human Rights Watch’s International Justice Program, argues that “time and again…turning a blind eye to justice only undercuts durable peace.” If the justice pursued lacks solidarity with local customs and opinions, then the mechanism for justice should be questioned.The values that international law and the ICC embody are admirable and should be pursued by all nations as standards of conduct in conflict and post conflict environments. However, when the ICC enforces these laws, it must take into consideration the fact that these doctrines compete with traditional customs and local demands. “The belief that the ‘justice’ provided by international law is absolute, taking precedence over local resolutions to long-standing, complex political crisis” is an unacceptable practice in practical terms. If international action is to be embarked upon, it must operate “in solidarity with local demands.” The ability to pursue justice and peace simultaneously is achievable, and necessary, for without one the other cannot become a reality. In the case of northern Uganda, “governments committed both to ending the war and achieving accountability in Uganda need to devise and apply a comprehensive strategy that complements and reinforces that ICC indictments and Bigombe’s intention to resume peacemaking efforts.” However, “if local injustice is the price to be paid for the kind of international justice that results from ICC prosecution, then we must abandon the Court and imagine new modes of building a truly global rule of law.”

Conclusion

The process of enforcing justice is a complicated and often contentious one. The need for an internationally recognized body that can enforce principles of global importance is vital to attaining the international peace and stability embodied in the UN Charter; however, the path to international justice is paved with difficulties. The case involving the LRA illustrates those difficulties. Even though the LRA’s actions have been well documented and the leaders are unquestionably guilty of horrific crimes, the question of whether the ICC is the correct mechanism through which to seek justice remains at the forefront of the Ugandan debate. The ICC must rectify questions of legality (questions of admissibility), legitimacy (investigating the government and the UPDF), and practicality (balancing local calls for peace and traditional justice) if the proceedings against the LRA are to be seen as legitimate. If, for example, the ICC is unable or unwilling to investigate the allegations against the Ugandan government, then a truth, reconciliation, and justice commission should be advocated for as an alternative to the ICC.Furthermore, because there has been such an outcry from the local population to adhere to traditional customs, the possibility of deferring the use of the ICC and allowing the local populations either to seek traditional justice (so long as it is not retribution) or to allow northerners to consent to the involvement of the ICC should be considered.The process of seeking justice and reconciliation is a controversial issue. Since “no common understanding has yet emerged of the political conditions under which efforts at reconciliation should be restrained and justice promoted, or vise versa,” advocates of a “one-size-fits-all” justice system should exercise caution. The LRA indictments present many difficulties for the ICC, the government of Uganda, and the international community. However, if the interested parties can come to an agreement on the issues of jurisdiction, balancing traditional customs with international norms and ensuring an equitable peace can be constructed while seeking international justice, the ICC will increase its legitimacy within the international community and with the local population in northern Uganda. Despite the many issues surrounding the ICC’s indictment of LRA leaders, the very fact that there is an international body empowered to pursue justice, in the event that a state is either unwilling or unable to protect its population, demonstrates the continued commitment of the international community to the principles embodied in the Universal Declaration of Human Rights and the UN Charter.