Transitional Justice Forum

Peacemaking and threats of prosecution: Uganda

Posted by Helena Cobban at 13:09 | TrackBack


I have been wondering for a while how the ramping up of the work of the International Criminal Court (ICC) is going to affect the work of people trying to conclude peace agreements-- whether regarding "internal" or trans-national conflicts.  In particular, how will the ICC's work affect the ability of peacemakers and peace negotiators to use traditional or neotraditional indeigenous peacemaking practices based on the offering of amnesties, forgiveness and the reintegration of conflict-torn communities?

One of my bellwethers in this regard has been to carefully watch the course of the judicial investigation that ICC Chief Prosecutor Luis Moreno-Ocampo has launched into the atrocities committed in the civil war inside Northern Uganda. 

This "situation" was referred to the prosecutor by Ugandan President Yoweri Museveni in January 2004.  Moreno-Ocampo started studying the situation; and in late July 2004 he opened a formal judicial investigation into it—the kind of investigation that  can, under the mixed, civil law / common law procedure according to which the ICC works, be expected to result in the issuing of a number of indictments. 

Inside northern Uganda, however, many community leaders had a very different idea of what needed to be done to end the commission of atrocities there.  As the New York Times reporter Marc Lacey wrote in April 2005,

some war victims are urging the international court to back off. They say the local people will suffer if the rebel command feels cornered. They recommend giving forgiveness more of a chance, using an age-old ceremony involving raw eggs.  "When we talk of arrest warrants it sounds so simple," said David Onen Acana II, the chief of the Acholi, the dominant tribe in the war-riven north... "But an arrest warrant doesn't mean the war will end."

(The whole of that article is well worth reading.  The kinds of community-reintegration rituals that Lacey describes there seem very similar to ones that I have studied, in Mozambique .)

In March 2005, Acana led a high-level delegation of north-Uganda community leaders to The Hague where they discussed their concerns with Moreno-Ocampo.  The delegation was apparently unable to reach agreement on the text of a single joint statement at the end of the visit, so two separate statements were issued instead.  The prosecutor's statement said,

I am mindful of traditional justice and reconciliation processes and sensitive to the leaders’ efforts to promote dialogue between different actors in order to achieve peace…  I also recognize the vital role to be played by national and local leaders to achieve peace, justice and reconciliation.  We agreed on the importance of continuing this dialogue in pursuit of the common goal of ending violence.

A month later, Acana led an even larger delegation to the ICC headquarters.  This time, the two sides were able to reach agreement on a joint statement .  It read in part:

The Lango; Acholi; Iteso and Madi community leaders and the Prosecutor of the International Criminal Court have agreed to work together as part of a common effort to achieve justice and reconciliation, the rebuilding of communities and an end to violence in Northern Uganda…  In working towards an end to violence, all parties agreed to continue to integrate the dialogue for peace, the ICC and traditional justice and reconciliation processes.

Moreno-Ocampo's work thus seemed to be emerging as one focusing considerably more on the diplomacy of peacemaking than that of most prosecutors.  (In mid-August 2005, ICC staff members traveled to northern Uganda to hold workshops there with delegates from local councils.  The ICC's press release about this gives no details about who conducted the workshops-- or about whether the ICC staff members there also tried to listen to their Ugandan interlocuotrs as well as talk at -- or "train"-- them.)

In the Rome Treaty, Article 53, part 2 specifically allows that, "upon investigation, the Prosecutor [may] conclude that there is not a sufficient basis for a prosecution because… (c)  A prosecution is not in the interests of justice, taking into account all the circumstances…"  In addition to the prosecutor being allowed some discretion in his work as noted there, the treaty also allowed the U.N. Security Council to request the deferral of an ICC investigation or prosecution, provided it did so under a resolution adopted under Chapter VII of the U.N. Charter; and Article 16   stipulates that when faced with such a request the court must totally halt any work on the relevant investigations or prosecutions.

As of now, Moreno-Ocampo has still not launched any prosecutions.  There thus seems to be a good chance that northern Uganda's traditional, non-punitive methods of conflict resolution may be given a chance to work?  Human rights activists everywhere should rejoice.

I do have many continuing questions about what's been happening in northern Uganda, and would strongly welcome any further information anyone could contribute.

One of my questions has to do with the effect that the more-or-less imminent threat of prosecutions has had on the calculus with which the relevant political leaders view the pitfalls or possibilities of concluding a peace agreement.  Might the "threat" of prosecutions possibly add to the motivation of leaders to make peace?