Why the ICC Should Not Step Aside — At Least Not Yet

Not surprisingly, I strongly disagree with Julian’s insistence that “the ICC really is now the obstacle to peace” in Uganda.

To begin with, we need to give the ICC credit where credit is due: as Mark Leon Goldberg pointed out earlier today at the invaluable UN Dispatch, “[i]t was not until the ICC began its investigation and issued indictments that the LRA began to seek a peace agreement with the Ugandan government in good faith; the ICC indictments provided the critical leverage to get the peace process going.” I think that statement is somewhat one-sided: the Ugandan government doesn’t exactly have a sterling record when it comes to genuinely seeking peace with the LRA. (See here for a nice summary.) Nevertheless, Goldberg’s basic point — that the peace negotiations never stood much of a chance of success prior to the ICC’s involvement — seems undeniable.

That does not mean, of course, that the ICC has not overstayed its welcome. Perhaps Julian is right that the Court now needs to figure out a way “to back down gracefully.” But let’s be clear about one thing: if the ICC dismisses the arrest warrants, we will not see justice in Uganda any time soon. Just consider the bait-and-switch that the Ugandan government and the LRA have pulled in the last month alone. First the plan was to try Kony and the others for war crimes and crimes against humanity in Uganda’s High Court:

“First of all, this protocol which has been signed is a very important protocol because it deals with important issues like handling impunity. And we hope that after that the remaining agendas are not so difficult. This is the ceasefire and then the DDR, this is demobilization and disarmament, and the reintegration. So the protocol that has been signed is very, very important. Accepting to be subjected to laws is a major achievement, and we hope that we shall be seeing a positive conclusion of the peace talks in the nearest future,” she said.

Nankabirwa said the new agreement paves the way for those accused of severe crimes would be tried in the High Court of Uganda while those accused of lesser crimes would face the northern Uganda traditional justice system know as Mato Oput.

“First of all the crimes differ. There are small crimes which will be handled by the traditional judicial system, and we shall come up with a layout of the traditional judicial system to handle reconciliation and accountability. But the other crimes, like the war crimes, are normally handled by the High Court. So what the teams have done is append their signatures on exactly that so that at the end of the day there are some in the LRA who will appear before the High Court because of their crimes,” Nankabirwa said.

That plan was a step in the right direction, although it was clear that Uganda could not satisfy the ICC’s principle of complementarity without fundamentally revamping its criminal justice system. (For an analysis of the shortcomings of the Ugandan system, see here.) But now the plan seems to have changed again — Museveni made it quite clear today that not even Kony and the other LRA leaders will stand trial in a Ugandan court:

Museveni said Joseph Kony, the LRA leader, and his commanders will instead be brought before “traditional” Ugandan courts – which emphasise apologies and compensation rather than punishment – as part of a deal to end a 21-year civil war marked by the abduction of children as combatants, mass rape of women and the mutilation and murder of civilians.

Museveni said local trials were the wish of the victims and leaders in the areas hit by the conflict.

“What we have agreed with our people is that they should face traditional justice, which is more compensatory than a retributive system,” he said on a visit to London. “That is what we have agreed at the request of the local community. They have been mainly tormenting people in one area and it is that community which asked us to use traditional justice.”

It is, if course, tempting to reply to this bait-and-switch by saying “so what?” If ordinary Ugandans believe that peace through traditional justice is more important than punishing the LRA for its many crimes, isn’t that their right?

Maybe so — but that assumes ordinary Ugandans actually support trading justice for peace. Museveni claims that they do, but the evidence seems to indicate otherwise. Not only do a majority of Acholi chiefs believe that it is impossible to adapt mapo oput for use on a national scale given the scope and scale of the civil war, a recent study by the UN High Commissioner for Human Rights found that most Ugandans oppose not prosecuting high-level perpetrators like Kony and the other LRA leaders:

[R]espondents across the three sub-regions described the need for different levels of transitional justice processes to address different levels of perpetrators and crimes. Local practices, they argued, were appropriate only for the cleansing and reintegration of low-level perpetrators. In discussing the use of local practices, a male victim of violence in Lango said, “We can forgive the rest but top officials involved in the war crimes should be taken to court.” Most Langi and Iteso respondents opposed the use of practices for major perpetrators, such as senior Government or LRA figures, whom they argued should be prosecuted through court structures, including the ICC. “Prosecution by the international court is applicable for high ranking war perpetrators like Museveni and Kony,” said an LDU member in Teso. Two parents of abducted children in Lango said, “Kony must be taken to the ICC….Museveni should also be tried by the ICC.” Some abductees and their relatives in Acholiland argued along these same lines, underlining their desire to distance abductees from the rebel commanders who forced them to commit atrocities and who therefore, they argued, should be prosecuted.

If that’s true, it is difficult to argue that the ICC should simply step aside and leave the Ugandan government and the LRA to their own devices. There is obviously no guarantee that the two sides, once freed from ICC oversight, will negotiate a peace that is genuinely acceptable to ordinary Ugandans. Indeed, the evidence to date indicates otherwise. And, of course, the Court will suffer significant and potentially irreparable harm if it rewards the combined Uganda/LRA temper tantrum: as John Boonstra noted today (also at UN Dispatch), “[i]f the ICC is seen as capitulating to the demands of its host government — or worse, to those of an indicted war criminal — a dangerous precedent will be set for the court’s work elsewhere.”

What, then, is the right answer? It seems to me that the answer lies in the ICC’s principle of complementarity. Given that ordinary Ugandans favor traditional justice for low-level perpetrators and criminal prosecution for high-level perpetrators, the Court should insist on two things: (1) that the Ugandan government and the LRA revert back to their original plan to try Kony and the other LRA leaders in Uganda’s High Court; and (2) that the Ugandan government revamp its criminal justice system to satisfy the principle of complementarity. At that point — and only at that point — should the ICC step aside.

Which is, of course, precisely what the ICC is designed to do.