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Abstract
In July 2005, the chief prosecutor of the International Criminal Court (ICC) formally began an investigation into crimes committed by the Lord's Resistance Army (LRA) in northern Uganda. The following year, he issued arrest warrants for five LRA commanders. The involvement of the ICC, however, has met with strong criticism from both inside and outside Uganda. Firstly, some commentators insist that peace must come before justice and that the ICC's arrest warrants undermine prospects for peace in Uganda. Secondly, there are those who maintain that the ICC's involvement rides roughshod over traditional, indigenous forms of justice. By exploring each of these claims in detail, this article seeks to answer the fundamental question of whether or not the ICC should withdraw its arrest warrants against the LRA. Its principal argument is that debates regarding the ICC and Uganda are typically based upon false dichotomies – between peace and justice and between international justice and traditional justice – that must be transcended. Peace and justice are not mutually exclusive but rather mutually reinforcing. They complement each other. Hence, the key question is not if peace should come before justice, but rather what form the administration of justice should take. The article further contends that rather than choosing between international (retributive) justice and traditional (restorative) justice, the emphasis should be on a holistic, blended approach that combines the two.
Notes
The former UN Under-Secretary-General for Humanitarian Affairs.
Allen notes that, ‘Up to now, the Ugandan case has been the most important and also the most controversial’ (2008a:3).
Allen, however, maintains that, ‘… the role of children has in some important respects been exaggerated. This is not a conflict that is being predominantly waged by children’ (2008a:112). In his view, the emphasis on child soldiers ‘… allows for the demonizing of the LRA, and deflects attention from the undeniable fact that President Museveni's government has recruited child soldiers too, and not only in northern Uganda. At the same time, it allocates juvenile status to the LRA. It suggests that the rebels should not be thought of as normal adults’ (2008a:113–4).
According to Branch, ‘… there is a clear record of international violence perpetrated by both the rebels and the government forces in northern Uganda, many within the ICC's temporal mandate. In dominant international portrayals of the conflict, however, government violence has been downplayed, if not entirely ignored’ (2007:182).
Like the ICC, the ICTY and the ICTR have no powers to conduct arrests and are therefore heavily dependent on the willingness of states to cooperate. Apropos of the ICTY, its former chief prosecutor maintains that, ‘This lack of authority ineluctably forces the tribunal into the realm of politics’ (Del Ponte Citation2008:42).
That the ICTY, for example, has not prosecuted crimes committed by NATO during its 1999 intervention in Kosovo has helped to seriously tarnish its image among Serbs (Clark Citation2008a:338–9). In the case of the ICTR, the fact that it has only prosecuted Hutus and has not issued any indictments against the Tutsi-dominated Rwandan Patriotic Front (RPF) has fuelled claims that it is dispensing ‘victor's justice’. Peskin, for example, maintains that by blocking investigations of Tutsi crimes against Hutus, ‘… the Kigali government has long rendered the ICTR a de facto “victor's court” in which Tutsi RPF suspects enjoy virtual immunity from prosecution’ (Citation2009:152) (see also Reydams Citation2005:977).
According to some commentators, however, this ‘first justice, then reconciliation’ stance is simply not plausible. For Volf, for example, ‘First and most fundamentally, the “first justice, then reconciliation” stance is impossible to carry out. All accounts of what is “just” are to some extent relative to a particular person or group and are invariably contested by that person's or group's rivals. In any conflict with a prolonged history, each party sees itself as the victim and perceives its rival as the perpetrators, and has good reasons for reading the situation that way. Even more significantly … every pursuit of justice not only rests on partial injustice, but also creates new injustices … No peace is possible within the overarching framework of strict justice for the simple reason that no strict justice is possible’ (Citation2000:870). Amstutz similarly rejects the ‘first justice, then peace’ strategy as both unrealistic and conceptually flawed (Citation2005:546–7).
Baines notes that, ‘The Acholi are one of the first victim populations in the world to lobby their government for the creation of a blanket amnesty’ (2007b:101). Hence, in the specific case of Uganda, it is arguably problematic to contend that, ‘To the victims of human rights crimes, amnesty represents the ultimate in hypocrisy: while victims struggle to put their suffering behind them, those responsible are allowed to enjoy a comfortable retirement’ (Scharf Citation1999:513).
In a 2000 report, the UN Secretary-General stressed that, ‘While recognizing that amnesty is an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal armed conflict, the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law’. UN Doc. S/2000/915 (2000), para. 22.
In order to avoid such complex issues arising in the first place, it can be argued that the general preference should be in favour of conditional as opposed to blanket amnesties. Van Zyl, for example, maintains that it is necessary to be creative vis-à-vis amnesties, ‘by limiting them as much as possible; trying to make them as conditional as possible; trying to build subset clauses into them; and trying to ensure that language is built into them which says that if people take up arms again or try to undertake another coup, then the benefits of that amnesty are immediately extinguished’ (cited in IRIN Citation2006:31).
This can help to explain why ‘there have been virtually no studies that systematically have attempted to examine or measure the contribution of trials to reconciliation and social reconstruction’ (Fletcher and Weinstein Citation2002:585).
Vis-à-vis Uganda, Moreno-Ocampo has noted that, ‘Mass crimes require a massive number of perpetrators. There is no way the ICC could deal with the whole problem. We will indict five people and that is all we can do’ (cited in IRIN Citation2006:6).
Akhavan notes that, ‘The dual role of child soldiers as perpetrators and victims is a key characteristic of the LRA's culture of command and control’ (2005:407).
To cite Mani, ‘The intransigence in the retributive justice model on punishing perpetrators to vindicate victims’ suffering implies that the former are entirely culpable and the latter wholly blameless. Yet it is sometimes observed – though rarely discussed – that in many conflicts the distinction between victim and perpetrator may not be so sharp' (2007:121).
According to Zehr, restorative justice ‘involves the victim, the offender and the community in a search for solutions which promote repair, reconciliation and reassurance’ (Citation1990:181).
Defining the meaning of ubuntu, the former chairman of South Africa's Truth and Reconciliation Commission explains, ‘We belong in a bundle of life. We say, “a person is a person through other people”. It is not “I think therefore I am”. It says rather: “I am human because I belong”. I participate, I share. A person with ubuntu is open and available to others, affirming of others, does not feel threatened that others are able and good; for he or she has a proper self-assurance that comes from knowing that he or she belongs in a greater whole and is diminished when others are humiliated or diminished, when others are tortured or oppressed, or treated as if they were less than who they are’ (Tutu Citation1999:35).
To claim, for example, that mato oput is simply ‘a form of blanket amnesty reflecting a traditional attempt to shield perpetrators from justice’ (Ssenyonjo Citation2007:65) is to misconstrue a process that involves accountability and payment of compensation.
Allen is critical of ‘the current vogue for promoting traditional justice in Uganda as a supposed “alternative to the ICC”’ (2008b:47).
That the ICTY did not establish an outreach section until six years after the Tribunal itself was created, for example, has had a negative impact on its ability to reach out to and to engage ordinary people in the former Yugoslavia (Clark Citation2009a; Citation2009b; 2009c; 2009d).
In 2004, for example, frequently-asked questions included: why and when was the ICC created, how do cases get to the Court and will the ICC also try children involved in the northern conflict? In 2007, in contrast, commonly-asked questions included: can the ICC withdraw its arrest warrants, what form of reparation will the ICC give to victims and whose justice is the ICC working for – that of the victims or that of the international community? (ICC Citation2007a:55).
Clark, for example, emphasises that, ‘… the ICC's investigations into LRA and not UPDF crimes create a perception of the ICC as one-sided and heavily politicised … The OTP [Office of the Prosecutor] has so far failed to explain clearly its prosecutorial strategy’ (2008b:42).
Pham et al.'s research (interviews using a structured questionnaire), conducted between 20 April and 2 May 2005, revealed that sixty-six per cent of respondents in four northern districts said that LRA leaders should be punished (tried and imprisoned or killed). The percentages were higher in non-Acholi districts (Lira, eighty-eight per cent; Soroti, sixty-eight per cent) than in the two Acholi districts (Gulu, forty-four per cent and Kitgum, sixty-one per cent) (2005:26). Furthermore, when asked ‘what is justice?’ the most-frequent response (thirty-one per cent) was criminal trials (2005:24).