The International Criminal Court (ICC) maintains a primary mandate of ending impunity for perpetrators of the “most serious crimes of concern to the international community as a whole.”[i] It has championed a vision for international justice that seeks to reverse the historical trend of amnesty for peace,[ii] necessitating the prosecution of war crimes in zones of active conflict. The dispensing of international justice in this manner runs the risk that suspects sought by the ICC, often key parties to negotiations, may condition their approval of a negotiated political settlement on their receipt of amnesty.[iii] An apparent contradiction emerges between the moral desire to pursue accountability and the immediate objective of negotiating an end to hostilities. Devising the best means to ensure the simultaneous advancement of these two competing and deeply normative ideals becomes imperative.
Entrance into the Juba Talks
Northern Uganda has been home to grievous crimes against humanity such as the forced displacement of 1.5 million people, attacks on civilian populations, and abduction and forced enlistment of children. While the region’s conflict is a struggle between the Ugandan government and rebel group the Lord’s Resistance Army (LRA), it is also between the predominantly Acholi LRA and the wider Acholi population, who bear the brunt of violence.[v] In October 2005, the ICC issued arrest warrants for five senior commanders of the LRA, including the group’s leader Joseph Kony.[vi] Eight months after the arrest warrants were unsealed, the LRA formally entered into the northern Ugandan peace process, also known as the Juba Talks.
While conventional wisdom holds that fear of the ICC worked to “rattle” the LRA,[vii] leading them to enter into the Juba Talks, two alternative theories have been proposed to explain what prompted the LRA to enter into the talks. The first argues that the LRA accepted the Government of South Sudan (GoSS)’s proposition for peace talks because the alternative would have been its forcible eviction of the rebel movement[viii] from South Sudan.[ix] In reward for its participation in the peace talks, the LRA received large quantities of money and food and a promise to support the withdrawal of ICC warrants. A third party other than the GoSS may not have secured the LRA’s trust; more crucially, the LRA would have experienced less pressure to negotiate. The second theory, first put forward by the ICC prosecutor, argues that the LRA aimed to manipulate the international community by using the talks as mere cover for re-grouping and re-arming.[x] A UN report confirmed that the LRA regrouped and re-armed during negotiations[xi], but this does not necessarily denote the primary or sole for motivation in the talks, especially in view of bellicose and militaristic comments that frequently emanated from the Ugandan government throughout the Juba Talks’ lifespan.
Shortly after the unsealing of arrest warrants, anthropologist Tim Allen wrote that a policy of criminal investigations and prosecutions can constrain the actions of individuals, even before they stand trial.[xii] This notion of accountability impacting the cost-benefit calculus[xiii] appears borne out; prior to the warrants’ unsealing, deputy LRA leader Vincent Otti had begun to forge new links with outside parties[xiv] in search of information regarding the ICC.[xv] Some of the concerns were completely unsubstantiated, such as the use of the death penalty[xvi] or the enforcement of warrants by international Special Forces.[xvii] This very weak grasp of the ICC thus appeared to cause the LRA to over-estimate the international pressure the Court could bring to bear on it.
The central question is whether ICC involvement was the decisive factor in the LRA’s willingness to negotiate. Opinions differ; for example, former peace negotiator Betty Bigombe believes the ICC warrants were “80% of the reason” for the LRA’s engagement in peace talks.[xviii] Conversely, researcher Ronald Atkinson believes there to be little evidence that the warrants played a significant role in the LRA’s decision to pursue negotiations, although he acknowledges that they were a concern for the LRA throughout the talks and an insurmountable obstacle to their conclusion.[xix] Concrete—let alone irrefutable—evidence related to behavioralism is hard to come by, yet one set of events stands out. The LRA leadership was clearly unnerved by the ICC and what it meant in relation to them, and it consequently sought outside knowledge. This search ultimately bore fruit after the GoSS offered assurances to support the withdrawal of ICC warrants. It thus appears unlikely that the ICC played absolutely no role in their decision to accept the GoSS overture. Moreover, it may seem disingenuous to argue that the ICC proved an ultimate impasse and yet had absolutely no bearing on the LRA’s decision-making process pre-Juba Talks. Arguably, the most reasonable position would be that ICC pressure partially contributed to the LRA’s participation in peace negotiations.[xx]
The LRA’s concern regarding the ICC arrest warrants is well-documented, and even if evading the warrants was not the LRA’s primary motivation for participating in the Juba Talks, the LRA began to view the talks as a means to negotiate an agreement shielding the leadership from ICC prosecution. In time, Ugandan President Yoweri Museveni offered to get the arrest warrants lifted,[xxi] and by September 2006, both sides were using the ICC warrants as a negotiating point.[xxii] The arrest warrants possibly helped to keep the LRA engaged in negotiations for a longer period than in previous talks due to the threat of capture and prosecution in case of the talks’ collapse. Epitomizing the contradictory and paradoxical role played by justice, the LRA cooperated with a peace process because of what would befall them under international criminal justice, but it did so only to seek an agreement through which it could escape from prosecution under this same system of justice.
The ICC’s intervention may have also made continued support to the LRA from the Government of Sudan (GoS) increasingly untenable[xxiii] and consequently placed further pressure on the LRA to enter peace negotiations. The GoS’s provision of money, supplies, and bases dates back to the 1990s[xxiv] and afforded the LRA a safe haven in the region of South Sudan. Proponents of this argument often cite the GoS-ICC memorandum of understanding in 2005 whereby the former agreed to arrest LRA members named in ICC warrants. Ascertaining the degree of impact of the ICC investigation is extremely difficult given external pressure on the GoS to end LRA support which pre-dates the ICC investigation[xxv] and allegations of continued support by rogue elements of Sudanese military and intelligence.[xxvi] Moreover, the withdrawal of the Sudanese Armed Forces (SAF) in 2005 as part of the North-South Sudanese peace process naturally made continued support problematic at a logistic level. Again, the most plausible explanation is that the ICC partially contributed to an alteration of GoS calculations.
Negotiating in the ICC era
ICC prosecution severely limited the options available to mediators regarding the future of the five senior LRA commanders. In spite of his proposal of amnesty for LRA leaders upon completion of peace negotiations,[xxvii] President Museveni had no legal authority to grant amnesty due to Uganda’s international legal duty under the Rome Statute – the international treaty which established the ICC – to arrest any person sought by the Court.[xxviii] No mechanism in the Rome Statute allows a state to unilaterally revoke a referral or forces the Court to close a case. A refusal of Ugandan government to cooperate with the ICC was proposed, but such a scenario would have left the LRA at the mercy of Museveni, who could renege at a later period.[xxix] Aware of the problematic nature of amnesty, the LRA at times threatened a return to war if the peace negotiations failed.[xxx]
The ICC operates on a principle called “complementarity,” which entails a requirement to cede judicial jurisdiction to national authorities on the condition that the State in question is “able or willing” to investigate and prosecute.[xxxi] The mediators at Juba opted for domestic war crimes prosecution, which left open the possibility of traditional reconciliation measures such as Mato Oput. The hope was that these measures, which do not comprise any physical incarceration, might prove a more palatable option to Kony.
The year 2008 was marked by several no-shows by Kony for the signing of the Final Peace Agreement (FPA). Kony’s intransigence, however, was eventually met with an attack by the Ugandan military on the main LRA base in the Democratic Republic of Congo, which was then followed by LRA reprisals against civilian populations with an estimated death toll of 2,400.[xxxii]
Kony’s predominant objection to the Final Peace Agreement was against its provisions on war crimes prosecution.[xxxiii] The agreement’s vague wording, in order to meet LRA concerns and accord with Uganda’s international legal obligations, roused his suspicions. He subsequently raised queries regarding the connection between Mato Oput and national trials, and withheld his signature when no clear responses were forthcoming.[xxxiv] It must be stated that Mato Oput does not satisfy ICC complementarity requirements as neither determination of liability[xxxv] nor physical incarceration in the event of a guilty verdict are entailed. His trial, international or otherwise, was ultimately the only route through which the Juba Talks could be completed.[xxxvi]
Resolution of the Paradox?
The Rome Statute makes no mention of peace-justice clashes,[xxxvii] although Article 16 bestows the United Nations Security Council (UNSC) with the power to defer ICC prosecutions for a one-year renewable period. The Final Peace Agreement envisaged a temporary deferral of prosecutions[xxxviii] to provide time for national trials to be set up. Annual renewal, however, would create a de-facto yet conditional amnesty.
The UNSC’s explicit consideration of the “interests of international peace and security” renders it an appropriate body for such a decision. The ICC has consistently emphasized its strictly judicial mandate, notably stating that the difference between the interests of justice and those of peace were that the latter fell under the mandate of external institutions.[xxxix] It has been argued that the Court will inevitably find itself operating alongside an array of initiatives in conflict areas, including peace-building. In order to preserve its impartiality, the ICC cannot be a component of these initiatives.[xl] Hence, an over-ruling of the ICC ought not to be viewed as some sort of “Faustian bargain,”[xli] rather as an appropriate division of responsibility.[xlii] The Court may find itself transformed from an instrument of justice to one of diplomacy, becoming a key component of U.N.-led peace negotiations.[xliii] This undeniably shrewd use of ICC prosecutions raises difficult questions for the Court, such as whether or not its founders intended it to be used as a “pawn in a foreign power’s chess game.”[xliv]
Any deferral of ICC prosecutions will have wide implications for the Court’s reputation and the future of international justice, and therefore the manner in which such a decision is undertaken is of upmost importance. The leverage provided by Article 16 should not be underused, as it allows concessions, such as complete disarmament, to be extracted from warring parties, such as the LRA. However, mass abduction and murder by the LRA post-Juba has raised the stakes in the peace-justice debate. Provision of amnesty by the UNSC could set a future precedent that the international community not only condones impunity, but will back down to internationally-sought individuals who commit a sufficiently high number of human rights violations. Conversely, amnesty for Kony offers a possibility of preventing further LRA-inflicted violence in view of the dismal failure of military operations against the rebel movement. This option remains most improbable given the Ugandan government’s renewed emphasis on a military solution, in addition to Kony’s unreliable and unpredictable reputation. While the general balance has tended to be on the side of political expedience and submission to power rather than to judicial romanticism,[xlv] the Ugandan peace-justice dichotomy stands out as a peculiar irregularity.
Previous ad-hoc tribunals demonstrated that those bearing the most responsibility for committing war crimes are often those most disinclined to genuinely commit to peace processes.[xlvi] The Juba Talks kept the LRA engaged and reached a stage of finalization that no previous peace negotiations managed. If, as I have argued, this is even partly attributable to the ICC, it is a feat not to be understated. Writing at a time when the peace progress was progressing well, former ICC international cooperation adviser Matthew Brubacher argued that “synergy” can exist between the promotion of peace and justice.[xlvii] However, these two phenomena cannot remain mutually reinforcing, just as the calling of suspected war criminals’ bluff cannot be postponed indefinitely; no incentive to negotiate peace can exist if the reward is a prison cell. This is the Achilles heel of international justice, and it ultimately rendered the Juba Talks futile. Likewise, the heightened security fears[xlviii] that led the LRA leadership to engage in negotiations paradoxically led to their refusal to conclude them.
The slogan “no peace without justice” epitomizes the quintessential response by human rights groups and the ICC itself to the alleged incompatibility of the simultaneous pursuit of peace and justice, and it sits uncomfortably with the hypothesis of a paradoxical relationship. The slogan is misleading insofar as it asserts that justice is a necessary prerequisite for peace, although not entirely so given the welcome ICC pressure placed upon the LRA. Nevertheless, it is overly reductionist and dogmatic, exaggerating the role of justice and encouraging a wrongful assumption that Brubacher’s synergy can last. The big picture in which peace and justice sometimes act in synergy and sometimes obstruct one another must be kept in view; justice, at least for those in positions of sufficient power to disrupt a peace process, cannot always be achieved.
By effectively excluding the use of amnesty for warring parties, the ICC has fundamentally altered the manner in which peace negotiations are facilitated, and the dilemma of supporting negotiations within this new legal framework has not been resolved.[xlix] But the ICC framework is here to stay. How the international community proceeds in relation to the competing demands of peace and justice will have deep ramifications for both. The outcome for the pursuit of international justice beckons.
[i] International Criminal Court. 1998. ‘Rome Statute of the International Criminal Court’. Accessed 27 February 2009. http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf
[ii] Waddell, Nicholas and Phil Clark. 2008. Courting Conflict, Justice, Peace and the ICC in Africa. London: Royal African Society, 8.[iii] Brubacher, Matthew. 2010. ‘The ICC investigation of the Lord’s Resistance Army: an insider’s view’. In The Lord’s Resistance Army: Myth and Reality, edited by Allen, Tim and Koen Vlassenroot, 262-77. London: Zed Books, 264; Akhavan, Payam. 2009. ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism’. Human Rights Quarterly. 31(3) , 625; Sriram, Chandra. 2008. ‘Conflict Mediation and the ICC: Challenges and Options for Pursuing Peace with Justice at the Regional Level. In Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development, edited by Wierda, Marieke, Large, Judith and Kai Ambos. Heidelberg: Springer, 306.[iv] Please note that there are numerous aspects to peace negotiations vs. justice juxtapositions, such as the deterrence of future war crimes by the strengthening of legal enforcement procedures, and the contribution of justice to national reconciliation by the substitution of collective for individual guilt. This paper focuses on the direct impact of international criminal justice on peace negotiations.[v] International Crisis Group. 2004. ‘Northern Uganda: Understanding and Solving the Conflict’. Accessed 5 September 2013. http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/uganda/Northern%20Uganda%20Understanding%20and%20Solving%20the%20Conflict , i.[vi] International Criminal Court. 2005. ‘The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen’. Accessed 5 September 2013. http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200204/related%20cases/icc%200204%200105/Pages/uganda.aspx [vii] Grono, Nick and Adam O’Brien. 2008. ‘Justice in Conflict? The International Criminal Court and Peace Processes in Africa’. In Courting Conflict? Justice, Peace and the ICC in Africa, edited by Waddell, Nick and Phil Clark, 13-20. London: Royal African Society, 15.[viii] The GoSS was keen for the departure of the rebel movement from its territory. A formal accord between the two parties agreed February 2006 essentially amounted to an ultimatum: if the LRA did not accept the GoSS as mediators in peace negotiations and cease hostile activities in southern Sudan, they would be forcibly removed Atkinson, Ronald. 2010. ‘The realists in Juba? An analysis of the Juba peace talks’. In The Lord’s Resistance Army: Myth and Reality, edited by Allen, Tim and Koen Vlassenroot, page numbers, London: Zed Books, 210.[ix] Atkinson, 210-11.[x] Finnström, Sverker. 2008 Living with Bad Surroundings: War, History and Everyday Moments in Northern Uganda. Durham: Duke University Press, 227.[xi] Crilly, Rob. 2010. Saving Darfur: Everyone’s favourite war. London: Reportage Press, 60-1.[xii] Allen, Tim. 2006. Trial Justice: The International Criminal Court and The Lord’s Resistance Army. London: Zed Books, 180.[xiii] Akhavan, 652.[xiv] For example, Otti posed questions about the ICC to journalist and PhD researcher at the LSE Mareike Schomerus. Schomerus, Mareike. 2010. ‘Chasing the Kony story’. In The Lord’s Resistance Army: Myth and Reality’, edited by Allen, Tim and Koen Vlassenroot, 93-112. London: Zed Books, 96.[xv] Allen, 187.[xvi] Green, Matthew. 2008. The Wizard of the Nile: The Hunt for Africa’s Most Wanted. London: Portobello Books Ltd, 234-5.[xvii] Refugee Law Project. 2012. ‘Ambiguous Impacts: The Effects of the International Criminal Court Investigations in Northern Uganda. Refugee Law Project Working Paper No.22’. Accessed 9 October 2013. http://www.refugeelawproject.org/working_papers/RLP.WP22.pdf , 5.[xviii] Atkinson, 313.[xix] Atkinson, 210-2. [xx] International Crisis Group holds a similar position, emphasizing the joint role of ICC warrants and military pressure. International Crisis Group, 2006b. ‘Peace in Northern Uganda?’ Accessed 5 September 2013. http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/uganda/B041%20Peace%20in%20Northern%20Uganda.pdf , 1.[xxi] BBC News. 2006. ‘Amnesty’ for Uganda rebel chief’. Accessed 11 January 2010. http://news.bbc.co.uk/1/hi/world/africa/5147882.stm[xxii] Dolan, Chris. 2006. ‘Uganda Strategic Conflict Analysis’. Swedish International Development Cooperation Agency. http://www.sida.se/Publications/Import/pdf/sv/Uganda-Strategic-Conflict-Analysis_376.pdf, 17.[xxiii] See International Crisis Group. 2006b, 15; Grono & O’Brien, 16 ; Akhavan, 642-644.[xxiv] Mwenda, Andrew. 2010. ‘Uganda’s politics of foreign aid and violent conflict: the political uses of the LRA rebellion’. In The Lord’s Resistance Army: Myth and Reality, edited by Allen, Tim and Koen Vlassenroot, 177-84. London: Zed Books, 49.[xxv] Refugee Law Project. 2012. ‘Ambiguous Impacts: The Effects of the International Criminal Court Investigations in Northern Uganda. Refugee Law Project Working Paper No.22’. Accessed 9 October 2013. http://www.refugeelawproject.org/working_papers/RLP.WP22.pdf , 17.[xxvi] International Crisis Group. 2006a. ‘A Strategy for Ending Northern Uganda’s Crisis’. http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/uganda/B035%20A%20Strategy%20for%20Ending%20Northern%20Ugandas%20Crisis , 5.[xxvii] Otim, Michael and Marieke Wierda. 2008. ‘Justice at Juba: International Obligations and Local Demands in Northern Uganda’. In Courting Conflict? Justice, Peace and the ICC in Africa, edited by Waddell, Nicholas and Phil Clark, 21-8. London: Royal African Society, 23.[xxviii] Article 87.[xxix] Reasons for this likely included the loss of the ICC threat (IRIN, 2006. ‘Kony will eventually face trial says ICC prosecutor’. Accessed 1 January 2010. http://www.irinnews.org/Report.aspx?ReportId=59585) and Uganda’s history of cooperation with the Court.[xxx] Eichstaedt, Peter. 2009. First Kill Your Family: Chid Soliders of Uganda and the Lord’s Resistance Army. Chicago: Lawrence Hill Books, 253.[xxxi] The admissibility standards are outlined in Article 17.[xxxii] International Crisis Group. 2011. ‘The Lord’s Resistance Army: End Game?’ Accessed 10 October 2013. http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/uganda/182%20The%20Lords%20Resistance%20Army%20-%20End%20Game.pdf , i.[xxxiii] Atkinson, 220; Iya, Ronald. 2010.‘Encountering Kony: a Madi perspective’. In The Lord’s Resistance Army: Myth and Reality, edited by Allen, Tim and Koen Vlassenroot, 177-84. London: Zed Books, 181-3.[xxxiv] Refugee Law Project, 20.[xxxv] Human Rights Watch. 2007. ‘Benchmarks for Assessing Possible National Alternatives to International Criminal Court Cases against LRA Leaders’. Accessed 28 December 2009. http://www.hrw.org/legacy/backgrounder/ij/icc0507/icc0507web.pdf , 6.[xxxvi] Please note that this is not a statement that the ICC was the sole obstacle to conclusion of the Juba Talks, simply that was ultimately an insurmountable one.[xxxvii] Sengupta, Krishanu. 2008. ‘Peace or Justice: The Dilemma of the International Criminal Court. Lethbridge Undergraduate Research Journal. 3(1) https://www.uleth.ca/dspace/bitstream/handle/10133/1202/Sengupta.pdf?sequence=1, 3.[xxxviii] It is highly debatable, however, whether Museveni had the political will and leverage to secure the positive vote in the Security Council necessary for a deferral of ICC prosecutions.[xxxix] Sengupta, 9.[xl] Brubacher, 271.[xli] Grono, Nick. 2007. ‘What Comes First, Peace or Justice’. International Crisis Group. Accessed 7 June 2010. http://www.crisisgroup.org/en/publication-type/speeches/2007/grono-what-comes-first-peace-or-justice.aspx[xlii] Evans, Gareth. 2006. ‘Justice, Peace and the International Criminal Court’. International Crisis Group. Accessed 4 September 2013. http://www.crisisgroup.org/en/publication-type/speeches/2006/justice-peace-and-the-international-criminal-court.aspx[xliii] Foley, Conor. 2008. The Thin Blue Line: How Humanitarianism went to War. London: Verso Books, 186.[xliv] The Economist. 2011. ‘Dim Prospects’. 17February 2011.[xlv] Akhavan, 652[xlvi] Brubacher, 277.[xlvii] Brubacher, 277.[xlviii] Refugee Law Project, 3, 19.
[xlix] Allen et al. 2010. ‘Postscript: a kind of peace and an exported war’. In The Lord’s Resistance Army: Myth and Reality, edited by Allen, Tim and Koen Vlassenroot, 279-88. London: Zed Books, 288.