"For two decades it has been impossible to apprehend the rebel leaders. The communities that we work with are already asking how the [ICC] arrest warrants will be served... There is a lot of confusion and it's fast turning to fear."The following day, relief agencies working in the area all decided to curtail their operations in the area, which has been plagued with conflict for nearly 20 years. (The three most affected provinces-- Gulu, Kitgum, and Pader-- also have the misfortune of abutting onto both war-plagued South Sudan and war-plagued northeast DRC. By the way, you can get some good background info on the northern Uganda conflict, see here.)
In the last weeks it has been reported that [Dominic] Ongwen was killed in combat, following an attack on an IDP camp.Regarding impartiality, he wrote:
As in the other situations, in all our work we are guided by the interests of the victims and we will always be respectful of local traditions. My team made over twenty missions to Uganda to listen to the concerns of local community leaders... I have also had meetings in The Hague with leaders of the Lango, Acholi, Teso and Madi communities. We all agreed that we must work together as part of a common effort to achieve justice and reconciliation, the rebuilding of communities and putting an end to violence in Northern Uganda.
The next step is that of arrests. The arrest warrants issued by the ICC will help galvanize international efforts to apprehend the suspects. The responsibility to execute the arrests is that of States Parties and the international community.(pp.4-5)
In Uganda, the criterion for selection of the first case was gravity. We analyzed the gravity of all crimes in Northern Uganda committed by all groups -- the LRA, the UPDF [i.e., the government forces] and other forces. Our investigations indicated that the crimes committed by the LRA were of dramatically higher gravity. We therefore started with an investigation of the LRA.Throughout this statement, Moreno-Ocampo seems to reveal a canny understanding of the limitations, both budgetary and political, on the ICC's ability to fulfill its mandate. In thinking through the strategic choices that the States Party to the ICC-- that is, effectively, the ICC's "board of directors"-- must make, he is able to draw on the considerable experience already gathered over the past 12 years by the leaders of the UN's two ad-hoc international criminal courts, the ones for former Yugoslavia and Rwanda. Not all of that experience has been happy, by any means. Both courts are still mired deep within overly heavy caseloads that are the result of a sorry lack of strategic thinking back in their early days and months-- the kind of strategic thinking that Moreno-Ocampo is evidently trying to engage in now regarding the ICC's potentially much, much larger international caseload.
At the same time, we have continued to collect information on allegations concerning all other groups, to determine whether other crimes meet the stringent thresholds of the Statute and our policy are met.(p.7)
A resource driven approach, with the capacity to take only two or three situations each year would require the Court to focus on the worst crimes. This would likely increase the international consensus towards their prosecutions. This approach would also enable the Court to have more efficiency. A resource driven approach, however, would mean that situations involving hundreds of crimes, such as killings and rapes, may have to be set aside in the interest of focusing on a competing situation involving thousands of killings and rapes. Many could feel that justice is not served if hundred of deaths are not enough to warrant the intervention of the Court.(p.9)... Anyway, the coming months will show us a lot more about whether the particular "strategic" choice that the ICC made with regard to issuing and unsealing the LRA indictments when they did turns out to help the expansion of the rule of law inside Uganda, or not. Let's hope it does.
I would really love to have some of the questions I posed above answered! Do, please, all chime in!
meantime, I just want to bookmark this interesting opinion piece by Katherine Southwick, which appeared in the Int'l Herald Tribune on October 14. The tag-line says that Southwick, who lives in Washington, worked as a researcher with the refugee Law Project in Uganda in August.
She writes, The LRA deserves condemnation, but a closer look at this case reveals how irresponsible the ICC was in issuing arrest warrants at this time. She makes many of the same arguments I have made on this issue... Good reading!
Posted by: Helena Cobban at November 8, 2005 11:00 AMI am alarmed at the growing divisions in the international community between humanitarian aid efforts and international justice efforts. Most humanitarian organizations operate on the principle of impartiality and neutrality. They are understandably worried when efforts of other sections of the international community disturb their appearance of neutrality.
International justice, as a form of human rights, relies on interference. It relies on the creation and implementation of systems that are designed to investigate, judge and punish. This process, by its nature, cannot be neutral or impartial.
How can these two facets of the international community be reconciled? As a lawyer and a supporter of the ICC, I cannot abandon the principles of justice and accountability. The idea of remaining carefully neutral, of negotiating with irrational criminals, runs contrary to my experience and training. I do not believe that negotiations with the LRA will ever end the conflict because I do not believe the LRA is negotiating in good faith. I do not believe that humanitarian aid, by itself, can end a conflict. Will the ICC indictments trigger a chain of events leading to peace? I don't know. But I do know that people within countries such as the United States rely on their national criminal justice system to maintain law and order, so I'm willing to give it a shot in the international arena.
On another topic, that of the ICC as an instrument of racist and imperialist interference in local events, this is a very real and serious concern. Part of international justice is ending conflicts and bringing criminals to justice, but another part is serving victims by giving them the sense that justice has been done. How many people in Rwanda feel left out of the process taking place at the ICTR? But I know the ICC is working on this problem. Technology is playing a role. At a meeting in Washington, D.C. last year I learned that the ICC is considering using video conferencing to allow witnesses in rural Uganda to give testimony before a judge in the Hague without having to travel. The trials may be decentralized, allowing portions to be conducted in Uganda and portions in the Hague as appropriate. Most importantly, more will be done to improve victim services, providing counseling and making sure witnesses have the support of their families at all times.
Posted by: Heather Alexander at November 8, 2005 04:40 PMI've only got a couple of minutes. All I can think to say is that these are difficult questions. So is your question on "Just World News", about "Empire and the Discourse of Justice". I do hope you are not disappointed that there are not a huge number of replies. Or not yet. Please keep on asking these questions. It is actually beautiful to see somebody asking such questions.
Posted by: Dominic at November 9, 2005 08:57 AMHeather, I think you're quite right to note that there's a deep disciplinary divide between those who do humanitarian-aid and development work, and those who do international criminal justice.
One thing several friends of mine have noted is that people doing the humanitarian work are so over-stretched, so frequently working in very tough field conditions, and so ill-supported that they find it hard to write long articles and generally find a voice in the global discussion on these issues... Whereas the international lawyers sit in often very nicely paid positions in law schools in the west, or in the courts in The Hague, where they have all kinds of clerks and students to help them do their work-- most of which consists anyway of writing. Therefore, they have come fairly easy to dominate the global discourse on many of these issues-- often, based on only a very foggy idea of the real needs of communities mired in conflict.
My friend Ramesh Thakur, senior vice-rector of the UN University in Tokyo, has termed what's been happening "judicial colonialism."
Michela Wrong, who worked for Reuters, the FT, and BBC in Africa, recently wrote a good short piece in The New Statesman (London) about the Uganda phenomenon . You can find it here or here.
She writes about the road to hell being paved with good intentions, etc etc... Then this:
Impunity: the human rights organisations do so bang on about it. The climate of impunity must be ended, they say. If a warlord with his eye on the presidency realised that somewhere, sometime, he would be made to account for his crimes, he might not commit them in the first place.
I find this puzzling, given how very useful - nay, positively necessary - a climate of impunity proved in allowing our own western societies to put past horrors behind them...
Anyway, it's a bracing read from a very well-informed writer. (See, for example, this review of Wrong's latest book, by former Asst. Secretary of State for African Affairs Susan Rice.)
Posted by: Helena Cobban at November 10, 2005 09:04 PMHere's some good reporting-- mainly on Uganda and the ICC, but also minimally on Rwanda-- from the IWPR's Waldimar Pelser, in Johannesburg.
Posted by: Helena Cobban at November 17, 2005 11:04 AMHelena:
Thank you for your reference to Michela Wrong's article on the ICC and the LRA. I have not read anything by her before and it's always interesting to discover new points of view. However, I have to admit that I was confused by her article. She speaks of amnesty and impunity as having played a large role in helping Europeans put the horrors of WWII behind them. She seems to be talking about the thousands of ordinary citizens involved in holocaust, not the top level leaders who were actually prosecuted at Nuremberg. The ICC has no plans to prosecute ordinary LRA solderers, only the top leaders of the movement. In this way, it resembles Nuremberg very closely.
She also speaks of the impunity given to the leaders of the Allies (the United States and Britain), who were never adequately confronted with their war crimes (the fire bombing of Dresden, the use of the atomic bomb), which are seen as great failures of Nuremberg - indeed, they are examples of "victors justice". The ICC is also in grave danger of becoming a "losers only" court. Just as the ICTR cannot prosecute former Rwandan rebels for massacres committed during the 1994 civil war, the ICC will most likely not prosecute members of the Ugandan army. This is politics interfering with a fair and impartial court system. Far from being a problem confined to Africa or the ICC, it is a problem with court systems everywhere. We see it in the United States, where Saddam Hussein is tried for war crimes and torture, but our own use of torture is off limits to our own justice system, let alone any international system.
As for the Peace Process in Uganda, I admit that I am not overly familiar with that country. After spending several months watching trials at the ICTR and working on the Darfur issue in Washington, D.C., I feel very strongly that a properly conduced trial would be a powerful tool in conflict prevention and the healing process. I cannot picture a sophisticated politician and manipulator like Théoneste Bagosora being tried in the Gacaca system and reintegrated into a Rwandan community. I know that many people in south and west Sudan do not want a peace agreement that would preserve the status quo - they want accountability. A peace agreement presumes that one is negotiating between reasonable parties who will reach and agreement and honor that agreement. It did not work in Rwanda, I despair of it working in Sudan given the attitude of the Sudanese government (total scorn and disrespect for the process and the other parties involved). Given what I have read of the LRA, there does not seem to be much hope that they are really willing to come to an agreement either.
It is quite possible that the ICC will prove to be unworkable in practice - this is something that no one can predict as there has never before been an international criminal court. But I do believe that there should be some system of accountability and that people in Africa have the same right to justice and accountability as people in other parts of the world. Humanitarian aid will not resolve a conflict, indeed, it is not designed to do so. Powerful nations have consistently failed to intervene. Neighboring countries are reluctant to help. I think it is time for another alternative.
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