"To insist on international prosecution when peace is at hand... is to allow one idea of the perfect to be the enemy of the good."
by Katherine Southwick
Washington Post
JOSEPH KONY, the rebel leader in Uganda who rapes, murders, and abducts children has been indicted by the International Criminal Court. He says he'll help restore peace if charges against him are dropped. Can this work?
I say no, peace must come with justice, but justice takes many forms.
The twenty-year long war in northern Uganda is one of the world's longest-running conflicts. The Lords Resistance Army (LRA) is a splinter group of a rebellion that sought to defend northern interests after a southerner, current President Museveni, came to power in 1986. Although a peace agreement was signed in 1988, LRA leader Joseph Kony continued attacks against the government, initially seeking to create a regime based on the Ten Commandments. Civilians were caught in the middle: the LRA punished those who didn't support it by burning villages, murdering, and abducting thousands of children to train as fighters.
Meanwhile, the Ugandan Army committed rape, torture, and murder. As many as 1.6 million people subsist in displacement camps, where nearly 1,000 people die per week from disease or violence. After commencing an investigation in July 2004, the International Criminal Court (ICC) issued its first indictments for five LRA leaders in October 2005.
Then in July 2006, peace talks in Juba, Southern Sudan, began. They are widely seen as the best opportunity for peace ever. The new Government of Southern Sudan acting as mediator. But LRA members being investigated by the ICC demand the cases against them be dropped if they are to negotiate peace. Yet it is a mistake to characterize the northern Ugandan dilemma simply as a peace versus justice debate. This could prolong the plight of two million people and impair the potential of the ICC. More sensibly, our discussion should be about bringing peace with justice.
Anyone who has been to northern Uganda can grasp that peace is the overwhelming priority for the people there, who have suffered the brunt of the conflict and face enormous challenges ahead. But the imperative of accountability has not been lost on anyone, including the LRA leadership. ICC indictees Joseph Kony and Vincent Otti have publicly expressed interest in finding ways to atone for their crimes.
I met the LRA delegation in Juba last July as the talks began. We spent hours discussing accountability mechanisms, such as truth and reconciliation commissions, public apologies, and victim compensation. These concepts are rooted in Ugandan culture and the transitional justice experiences of several other countries, including South Africa. In collaboration with Ugandans such as traditional leaders and Parliament, the Liu Institute at the University of British Columbia is doing important work exploring these mechanisms.
The fact remains that ICC prosecution is not obviously among the accountability options in the event a peace agreement is reached. LRA indictees will not voluntarily surrender to the ICC. They could only be brought by force, if not shot on the spot. And in the process, as history demonstrates, efforts to capture the leaders would result in killing child captives and renew attacks on civilians, worsening security in Uganda, Congo, and Sudan, where the LRA is present. To avoid more violence, exile, or some form of accountability apart from ICC prosecution appears to be the only option for the indictees under a peace agreement.
Either the United Nations Security Council or the ICC Prosecutor can legally defer prosecution under Articles 16 or 53 of the Rome Statute, the document constituting the Court, "based on new facts or information" or in the interests of peace, victims, or justice (such as local justice). These provisions convey that under certain conditions, arguably at play in the northern Uganda case, deferral would neither "sacrifice" justice for peace, nor reflect the triumph of realpolitik over rule of law.
Indeed, the ICC indictments, while partially blamed for scuttling a previous peace effort led by Betty Bigombe in 2004, have no doubt helped pressure the LRA to come to the table this time. ICC pressure has also strengthened commitment on all sides to acknowledging the need for justice. But these "contributions" cannot be realized unless the ICC credibly holds out deferral as a carrot. The LRA leaders will not strive to meet the conditions implicit in the Rome Statute if there is no real possibility of deferring the indictments or otherwise ensuring the indictees' security.
That peace cannot last without some form of justice is a plausible assumption. Yet equally true is that peace is unsustainable without some deference to local priorities and approaches, including those that bear on factors, such as international indictments, that will ultimately be a major issue in making peace.
To insist on international prosecution when peace is at hand (a determination to be made largely by the parties) and when an alternative vision for accountability is emerging on the ground is to allow one idea of the perfect to be the enemy of the good. Having long failed to help resolve this brutal war, the international community, including the ICC, now has an opportunity to help Uganda achieve -- through peaceful means -- lasting peace with justice. This would be a result that is democratically based, refuses to condone impunity, and in the end, is not a bad deal.
Formerly of the Refugee Law Project in Uganda, Katherine Southwick is a lawyer in New York and lived in Uganda in the 1990s. She has worked for human rights organizations in India and Thailand, the International Criminal Tribunal for the former Yugoslavia in the Hague, and the Office of the Legal Adviser at the U.S. State Department. She has commented on the northern Ugandan crisis in the International Herald Tribune, YaleGlobal, NPR, and Voice of America.
