Transitional Justice Forum

Hard-hitting commentary from Uganda's Moses Okello

Moses Chrispus Okello, who is head of the Research and Advocacy Dept. at Kampala's excellent Refugee Law Project, voiced some hard-hitting criticisms of the ICC in the presentation he gave at the international conference recently held in Nuremberg on the interactions between peace and justice.

He said this (please note that the italics and bolding in what follows are in the RLP version of the text, while the underlines are mine):

by both the Government of Uganda and the rebels of the Lords Resistance Army.

At times it seems as though no amount of stocktaking could ever come to terms with the magnitude of what has happened – but should that stop us from trying?

We at the Refugee Law Project think not. Yet, ever since the International Criminal Court seized itself of the situation in northern Uganda, many within the international and local communities have been complicit in shifting attention away from the true scale of what has been done to people and the range of actors involved, focusing instead on the infinitely more manageable task of prosecuting a handful of individuals from only one of the many parties to the conflict – and in the process ensuring the institutional interests of a fledgling global governance mechanism, the ICC.

Sadly, the proponents of the ICC have made their case in a way which has resulted in the creation of a false opposition between peace and justice.

They have pitted those of us who, on the basis of many years of on-going interaction with the many stakeholders in the conflict, argue that peace should always come first, and justice later, against a largely external set of actors who claim in a somewhat selfrighteous manner that peace will be the eventual outcome of justice.

We in the former category have been accused of condoning impunity - yet we could equally argue that justice along the lines pursued by the ICC also condones impunity, not least that of the government actors.

In ordinary circumstances, it would appear quite natural that peace and justice go hand-in-hand, following the argument that peace and justice are inseparable and one is a subcomponent of the other.

But this argument does not hold in a situation such as northern Uganda, where conflict is on-going and where the simultaneous pursuit of peace and justice only delays a peaceful resolution of the conflict (as we see in the current Juba peace talks) and contributes, in a very real and visible sense, to the continued internment of people in squalid camps for the internally displaced.

In the case of Uganda, the ICC indictments issued against the five top commanders of the Lords Resistance Army are always cited as evidence that the "peace with justice" position is tenable, based upon the claim that the threat of these indictments brought the LRA to the negotiating table.

While it may be the case that the carrot-and-stick threat of the indictments led the LRA to the negotiating table, this is merely speculation informed by opportunism. This is, after all, not the first time in the history of the conflict that the LRA and the government have attempted to talk peace. There were peace talks in 1994 and again in 2004. These talks were frustrated by the same government which referred the situation in northern Uganda to the ICC.

On the other hand, the rationale for a "peace first, justice later" position is quite simple: It is a matter of sequencing. And, sequencing should be distinguished from prioritization. If the preferred sequencing is peace followed by justice, this in no way signals that justice is a lower priority than peace – quite the opposite, in fact.

Whichever way you look at it, trying to ensure that the environment is conducive for a comprehensive pursuit of justice (i.e., that a peace deal has been struck, civilian authorities are back in place, clan structures responsible for traditional justice have re-grouped after decades of forcible dispersal, people are no longer living hand to mouth and are therefore better able to pursue justice for themselves) is definitive proof that you want real justice to be done. Rushing in a fashion which jeopardises the whole enterprise, on the other hand, must raise serious questions about the underlying objectives of those who claim to be pursuing justice and peace simultaneously.

...Many human rights activists seem unable to approach grave human rights violations without yielding to a retributive impulse; what else would justify developing sophisticated international tribunals, with their sometimes perplexing rules for the administration of justice, and attempting to apply these rules to all situations regardless of contextual specificities?

Rarely – if ever – have we invested in developing restorative mechanisms for addressing grave human rights violations, ostensibly because they are "incapable" of meeting the due process standards retributivists have invested so much in entrenching.

But what does this bode for the meaning of justice, which is central to the dilemma confronting Ugandans today?

In a 2004 report on "The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies,” the Secretary General of the United Nations referred to justice as "an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.

Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant [emphasis added]."

...It is ... intriguing that in the pursuit of both peace and justice, we consciously adopt retributivists' conceptions of justice, as embodied in the mandate of institutions such as the ICC.

Not that the latter is per se problematic. What is discouraging, however, is the failure to think outside such institutional frameworks. I wonder whether you have ever considered the injustice created by institutions such as the ICTY, the ICTR, and now the ICC?

Have we ever considered the impunity created by such actors and the role of others (such as donors) in supporting impunity?

Have we considered that retributivist conceptualisations of justice, with their focus on the visible leaders who ordered gross abuses to be committed, in fact enable international actors to conceal their role in fuelling conflict? What impunity!

Could it be the case that George Bush and Tony Blair - who both supported the Ugandan military while the latter decimated people - are as culpable for crimes committed in northern Uganda as Joseph Kony?

Lastly, while we could debate this forever (and, in particular, the irony that some of the most ardent supporters of retributive justice and the ICC preach their secular gospel from a country which sees itself as somehow exempted from international justice mechanisms), I think the greatest justice one can deliver to a people living in conflict is to enable them to enjoy some sort of peace, and then to enable them to have a say in how they think justice should be done – AND TO WHOM!

Thank you very much.

Great work, Moses!

By the way, last Thursday (July 5) Uganda's Internal Affairs Minister Ruhakana Rugunda told reporters on 4 July that the Ugandan penal code would have to be changed to include in it a provision to use Mato Oput, a system of "traditional" justice practised by the Acholi community of northern Uganda, whose incorporation into the national legal system should help Ugandans of all political stripes convince the ICC that their justice system indeed can hold the LRA in a nationally acceptable way (and therefore, the IUCC can drop its cases.)

Rugunda said,

Those who confess to war crimes under the Mato Oput mechanism will be required to ask for forgiveness and pay reparations.

On Friday, LRA spokesman Godfrey Ayoo weighed in, urging the International Criminal Court to annul war crimes charges against its top leaders, warning that they would prevent a final peace accord.

And here we have the response from some of those western-based rights activists whom Okello was writing about... Today, Human Rights Watch issued a statement saying,

any national trials for the most serious crimes should include penalties in the event of convictions that reflect the gravity of the crimes

Here's a question for my colleagues in HRW, since I sit on the organization's Middle Easst Advisory Committee: Why do they insist so strongly on not only trials but also punishments in the case of the LRA leaders-- but they never mention these alleged "necessities" when they are writing reports and statements about, for example, issues related to Israeli-Palestinian peacemaking?

And honestly, can anyone envision any kind of a workable peace process between Israel and Palestine or Israel and Lebanon if every perpetrator of a grave human-rights or IHL violation in those theaters would have to face trials and punishments as part of that process?

So why should matters be so different in Uganda? Is there just a teeny-weeny bit of colonialist thinking seeping in here?

"Justice" issues in Sudanese peace processes

Concordis International, which is "a small British organisation working to help individuals and groups in conflict situations to seek out paths towards lasting peace", recently published (in PDF form) a 24-page account of a consultation they recently held on a number of the different conflicts that have roiled the vast country of Sudan in recent years. The publication is titled Promoting Sustainable Peace in Sudan through Post-Conflict Justice and Reconciliation. It addresses post-conflict challenges in South Sudan, East Sudan, and Darfur.

(Before I proceed to give you more details of this latest Concordis paper, I'd like to quickly note this excellent publication titled Peace by Piece: Addressing Sudan's conflicts, that was co-produced last year by Concordis and the London-based organization Conciliation Resources. Its 23 different articles constitute is a true treasure-trove of information and analysis for anyone interested in war and peace issues in Sudan.)

Participants in the consultation whose contributions are summarized in the most recent Concordis paper include Andrew Rigby of Coventry University, Phil Clark of the University of Ulster, Micah Laila (the Assistant Bishop of Juba-- denomination unstated, but in the context probably Anglican?), Adam Azzain of the University of Khartoum, and a few others.

Here are the Executive Summary, and later the Recommendations, of their consultation. Please note I have added numbers to the 'bulleted point' in both texts, to facilitate discussion):

Executive Summary

This Concordis Paper is based on the content of a consultation held in the UK in March 2007, the goal of which was to consider Sudanese approaches to peace-building through post-conflict justice and reconciliation. In other states in Africa - South Africa and Rwanda among others - transitional justice mechanisms have played a central role in post-conflict reconstruction. Participants considered the examples of numerous ‘experiments’ of this nature to inform their discussion about the Sudanese context. In turn, the lessons learnt from African and international experiences fed into their reflections and conclusions about the most appropriate approaches to the pursuit of justice and reconciliation in Sudan.

Some of the consultation’s central conclusions are outlined below:

1. Though not all of Sudan is yet ‘post-conflict’, it is timely to consider ways of dealing with the past in order to respond to the present and prepare for the future.

2. Ultimately, national reconciliation can only be achieved when the root causes of Sudan’s conflicts are addressed in an holistic and just manner, particularly in terms of addressing inequalities in the distribution of wealth and power.

3. Given the complexity of Sudan’s conflicts, a package of complementary and co-ordinated transitional justice measures at different levels of society is needed.

4. At a national level, processes of justice and reconciliation should be developed through an inclusive national consensus, so that they enjoy ownership and trust across the diverse groups making up Sudanese society.

5. Sudan’s religious and cultural traditions emphasise forgiveness. Community conflict resolution practices administered by traditional authorities and religious leaders have many strengths and should be encouraged by the government.

6. Truth-telling about the past and creating a national record are important to reduce temptations for revenge and promote the rule of law.

7. Unconditional amnesty could encourage a culture of impunity and is unlikely to be acceptable under current international human rights conventions.

8. Accountability - meaning both retributive, restorative and redistributive justice - is fundamental to the achievement of broad-based reconciliation and peace.

9. Transitional justice processes should recognise the disproportionate burden of suffering borne by women in past and current conflicts.

In my judgment, most of these-- especially the first and last!-- are excellent points. However, the one that leaps off the page for me as being very far from helpful is the assertion in #8 that retributive justice is " fundamental to the achievement of broad-based reconciliation and peace." Points 6 and 7 are value judgments. I don't have enough familiarity with Sudan's social norms and realities to be able to make an informed comment on them. But I can certainly say those judgments should remain open to some questioning.

In general, the authors of this summary seem to want to "have it all"-- in terms of sustainable peace and retributive justice and full truth-telling , and give little recognition of the fact that in every single real-life situation of "transitional" justice, trade-offs need to be made among these goals... And they therefore give little indication of the criteria according to which such tough choices should be made.

My own views on these matters have been articulated in my recent book on the topic-- and also in these two earlier posts on TJ Forum: on 'justice and accountability', and on the value of truth-telling.

So here are the Recommendations voiced in this Concordis paper:

]]> Participants recommended that:

1. An inclusive institutional mechanism be established to agree an historical record of all acts of political violence since 1 January 1956. This ‘national framework for truth, justice and reconciliation’ would give Sudan’s many different communities the opportunity to air and manage their grievances, agree a shared history and pave the way for a full process of justice and reconciliation.

2. Ongoing rule of law reform (including for example greater emphasis on training and community policing) be part of an inclusive and effective process of transitional justice.

3. There should be a mechanism for amnesty for all individuals who have committed crimes in the context of war or with political objectives with the exception of those directly responsible for gross violations of human rights. Amnesty should only be considered once information relating to the crime in question has been fully disclosed.

4. The importance of individual compensation and collective reparation be recognised, and reparation be linked to a deliberate attempt on the part of the Sudanese government to address socio-economic exclusion through a fair and equitable distribution of resources and rapid development of neglected areas of the country.

5. Reconciliation processes take into account the disproportionate suffering of women and children.

6. At local levels, traditional community healing and dispute resolution systems should be recognised and empowered by government to deal effectively and impartially with current inter and intra-group conflicts and disputes across the country.

7. The role of women and of religious and traditional leaders in local-level peace-building should also be proactively supported by local, regional and national governments.

8. The provisions of Sudan’s peace agreements for regional and national processes of reconciliation be honoured, fully supported, and, within regional constraints, implemented as a matter of urgency.
Regarding these recommendations, I have my doubts about the value of the first one-- and in particular, the temporal priority they seem to assign to it... What they seem to be saying is that this "National Framework for T, J, and R" should be constituted and do its "truth-establishing" work before there is "a fill process of justice and reconciliation." It is my general observation of truth-seeking exercises, however, that they very frequently run the risk of becoming extremely tendentious and polarizing. And therefore, if they are undertaken at all, it would be very unwise to undertake them before at least the broad underpinnings of a sustainable peace have been put firmly in place.

Similarly, the very tight restrictions that Rec. 3 places on the providing of amnesty seems fairly misplaced to me. The way I read Rec. 3 is that "those directly responsible for gross violations of human rights" (they do not say in whose estimation this is the case, note) should not have any eligibility for amnesties. And those who committed lesser crimes "in the context of war" would win the amnesties only after "full disclosure" (again, they do not say in whose estimation this has happened) of the crime in question.

The temporal priority this plan gives to the proposed TJ&R process, and its specific exclusion of perpetrators of "grave" HR violations from any consideration for amnesty, make it very different from-- and in my view, far less workable or constructive than-- the South African TRC process.

The rest of the Recommendations here seem generally helpful.

The SCSL's Charles Taylor trial

I had an opinion piece in in last Thursday's Christian Science Monitor on the trial of Charles Taylor by the Special Court for Sierra Leone. (The article is also here.) This trial is being conducted not in the SCSL's own seat in Freetown, but in one of the ICC's unused courtrooms in The Hague.

In the piece I write the following text... Be aware, though, that I's inserted he mark-ups, formating, and hyperlinks in what follows into the version of this post that I earlier puiblished on my home blog, Just World News:

International Criminal Tribunal for Rwanda

myself

selective

disconnected

expensive

largely unaccountable

polarized

new war-crimes court

finished

mixed record

Regarding the "selectivity of indictments" at the SCSL, I'll note that it has indicted Charles Taylor and ten other individuals, with all the others apparently being Sierra Leonians. It has not, however, indicted any representatives of the numerous international shady businesses-- arms dealers, etc-- whose decisions and support kept the SL civil war going for so many long years. Indeed, in the article I note that one of Charles Taylor's closest business partners was the US televangelist Pat Robertson. Maybe, to make a truly effective point that these modern-era war-crimes courts will make sure no-one, however well connected, is above the law, the SCSL could have indicted Robertson on a charge of "aiding and abetting", at the very least?

As it is, though, don't all these courts-- and especially the ICC-- look worryingly like European-dominated institutions that seek to haul over the coals some naughty Africans while completely ignoring the role that people of European heritage have played for centuries, and all too often continue to play, in fomenting, enabling, and conniving in the commission of atrocious violence in Africa?

Then, regarding the expense of the SCSL, I did try to do find out the size of its global budget. The best estimate I could come up with, from combining the figures in various annual reports and doing one needed act of interpolation (for FY2003-04), was that for its whole duration, 2002-2009, SCSL will have budgets totaling about $200 million... and that, to try a total of 11 indictees. Which would be a per-case processing cost of around $18 million. This would be a considerable improvement over the ICTR, whose per-case costs were at one point running at about $43 million... But the figure still looks outrageous and excessive.

(Per-case processing costs for the many, often very complex amnesty applications processed by South Africa's TRC came to just under $4,300-- see my Amnesty After Atrocity book, p.193.)

You might also want to take into consideration that in 2004 the GDP per capita in PPP$ for Sierra Leone's 5.3 million war-battered people was $561, while for Liberians it was literally unmeasurable because of the lengthy perpetuation of post-civil war impoverishment and social breakdown in the country. (In the Netherlands, meanwhile, it was a very comfortable $31,789.) In 2004, Sierra Leone received a total of $359.7 million of overseas aid.

In another note on the expenses of the Charles Taylor trial as such, AP reported on Friday that SCSL acting registrar Herman von Hebel had told reporters that the court had decided to allot Taylor a budget of some $100,000 per month to conduct his defense.

Tha report added:

... Taylor is entitled to receive the money because the court has ruled he is indigent, meaning he cannot pay for his own defense, despite prosecutors and U.N. experts suggesting he has millions of dollars stashed in bank accounts around the world.

"We believe there are tens of millions," said prosecutor Stephen Rapp.

... Investigators are working to track down Taylor's alleged loot. If it is found and can be linked directly to him, the court has the power to make him pay back money he has been given to fund his defense.

Taylor's new defense team is expected to be in place in time for his trial's scheduled resumption on Aug. 20.

'Amnesty' book chapter now on the web

Katherine McNamara, the editor of the online magazine Archipelago has now published the concluding chapter of my book Amnesty after Atrocity?: Healing Nations after Genocide and War Crimes on the web, with my permission and that of the publisher. So now you can read it here.

The hope is, obviously, that you'll be so intrigued by the arguments that you'll go and buy the whole book. Then you can come and discuss it here.

What do we mean by 'justice' and 'accountability'?

Two of the key watchwords used by people who argue for war-crimes prosecutions in the aftermath of atrocity are the need for "justice" and "accountability." Yet it seems to me that many of these people construe both these concepts in a narrow and essentially backward-looking way that often has the effect of keeping people in communities that are struggling to escape from very serious recent, or even ongoing, political conflict mired in the grievances and blame-games of the past rather than investing their energies in figuring out how to build a rule-of-law-resecting political system going forward and then working together to build it.

This is one of the major conclusions I have reached after reflecting deeply on the findings of my recent book Amnesty After Atrocity?: Healing Nations after Genocide and War Crimes. In the book I compared the effectiveness of the policies that three sub-Saharan countries adopted at the point, in the early 1990s, when they were trying to bring to an end long-running political conflicts that had been marked by the widespread commission of very grave atrocities. The three countries were Mozambique, whose two major political movements in late 1992 concluded a General Peace Agreement (GPA) that ended the civil war that had beset their country since 1977; South Africa, whose major political movements agreed on the holding, in April 1994, of the country's first-ever one-person-one-vote democratic election, bringing to an end 40 years of apartheid and 350 strife-torn years of colonial rule; and Rwanda, where in July-August 1994 the Rwandan Patriotic Front (RPF) won a decisive battlefield victory that brought to an end four years of armed civil conflict that culminated in the three months of the anti-Tutsi genocide committed by their 'Hutu Power' opponents.

As each of those conflicts came to an end (or, more realistically, a conflict termination 'opportunity'), these countries' new, post-settlement rulers each pursued a very different approach to the challenge of dealing with the legacies of the recent atrocities. In Rwanda, both the national government and the international community pursued policies dominated by the need for war-crimes prosecutions. In Mozambqiue, the post-GPA government was bound by one of the provisions of the GPA that stipulated that a blanket amnesty be granted to all who had committed criminal acts during the civil war. Instead of launching any war-related prosecutions, the government focused on disarming and demobilizing as many as possible of the former combatants from both sides and reintegrating them as quickly as possible into normal civilian life. This policy, known as 'DDR' in standard U.N. jargon, was enthusiastically supported by the international community which underwrote most of the funding needed for it. In South Africa, the post-democratization government was similarly bound by an agreement concluded during the pre-settlement negotiations that promised that an amnesty would be provided to all who had committed criminal acts during the conflict. In South Africa's case, subsequent legislation spelled out that these amnesties, and the resulting immunity from criminal prosecution, would be offered only to those who individually applied for them to a special committee that was part of the country's post-apartheid Truth and Reconciliation Commission (TRC), and then only if they could satisfy that committee that (1) those acts had been been politically motivated, and (2) they had also shared fully with the committee everything they knew about such politically motivated criminal acts committed by themselves or others during the apartheid era. So the deal there was amnesty in return for truth-telling.

In my book I examined these varying approaches to dealing with the perpetrators of past atrocities. In addition, since I was doing this work some dozen years after those respective political transitions, I sought to to understand and analyze the effectiveness of those approaches over those crucial post-conflict years. One early challenge I came up against was to enquire: effectiveness at doing what? Now, I know that many lawyers and legal theorists are reluctant to apply extrinsic yardsticks to the work of juridical institutions, which they hold somehow to exist in a rarefied zone of pure deontology far from the grimy world of politics or history. But for my part, since I am a long-time participant in the international human-rights movement, I would hope at the very least that the policies adopted by the government of any country still reeling from a period of widespread atrocity commission would lead to a measurable and sustained improvement in the rule of law situation within that country.

As it happens, there is an institution in New York City that, on a world-wide, country-by-country basis measures this every year. This is Freedom House, which each year assesses each country on a two-headed scale, giving it one number for "political rights" and another for "civil liberties". It is a very specialized way of ranking. The best score a country can win is "1; 1", and the worst is "7; 7"; therefore, there are potentially twelve total intervals of variability between the top score and the bottom score. I checked the Freedom House rankings for the the three countries I had studied, for the years 1994 and 2006 (and for several years between), and I discovered the following:

]]>

Rwanda

South Africa

Mozambique

Movement on Freedom House indicators, 1994-2006.

1994: 6 ; 5
2006: 6 ; 5

Total positive movement: 0

1994: 5 ; 4
2006: 1 ; 2

Total positive movement: 6

1994: 6 ; 5
2006: 3 ; 4

Total positive movement: 4

Among the components of the "political rights" situation inside each country that I was able to examine in some detail was the fact that, by 2006, South Africa and Mozambique had each been able to hold three rounds of national elections that outside observers had judged to be essentially free and fair. (Mozamabique had a little more trouble organizing demonstrably fair elections at the provincial level, but was able to pull that off in, I think, 2005.) In Rwanda, meanwhile, by 2006 the RPF's post-genocide regime had still not been able to organize any free and fair nationwide elections, and successive reports by international human-rights bodies were painting a bleak situation regarding such issues as civil liberties, the independence of the country's judiciary, and so on.

And all this time-- until today and also for many further years into the future-- Rwanda's citizens will continually be faced with the challenge of delving in a detailed and public way into the terrible events of those three months of the genocide in 1994, since the community-level "gacaca [ga-cha-cha] courts" that the government has established to "try" all the less-serious crimes committed during the genocide are expected to continue their work until 2014 or so. The government will also simultaneously be attempting to try thousands of the "bigger fish" among the genocide suspects in the regular courts (and until 2008, the UN's special court for the 60 or so very biggest fish of all will also be continuing its work.) Thus, for all these many years following the RPF's July 1994 victory, the people of Rwanda have been forced to re-examine, argue about in detail, and very often therefore vicariously "re-live" all the minutest and most grisly details of the genocide.

In South Africa and Mozambique, meanwhile, almost none of that divisive, polarizing, and frequently re-traumatizing process is currently going on. South Africa's TRC had a fixed term between 1995 and 1998, though a few of the amnesty hearings dragged on after that original stop-date. And in Mozambique, given that a blanket amnesty for civil-war-era crimes was embedded integrally into the GPA, no public examination of the atrocities of those years was ever conducted. Meanwhile, throughout all the peacemaking process both before and after the conclusion of the GPA, churches, mosques, and the networks of the country's traditional healers (curandeiros/as) worked with other institutions in society to heal survivors of the many terrible atrocities that had been committed during the war, to resettle and rebuild communities uprooted and torn apart by the fighting, and to reintegrate former perpetrators into those communities. At the governmental and non-governmental levels, a determined efort was made to draw a clear line under the horrendous violence of the past and to focus the attention of the country's war-shocked people on the tasks of social and political reconstruction.

In both South Africa and Mozambique, an essential part of the agenda for political reconstruction was the establishment of political systems that actively fostered the democratic inclusion of parties advocating a range of different views, and thus providing mechanisms other than armed violence for the resolution of those differences. These newly democratic systems were designed to provide a new level of accountability both between the elected leaders and their citizenries and among compatriots of the same country who espoused widely divergent political views.

At the same time, the governments in both South Africa and Mozambique also took numerous steps to start to meet the basic needs of their citizens in the fields of economic and social justice. (I note that several well-documented surveys of the opinions of people reeling from recent armed conflict have shown that these people tend to put their extremely urgent needs for economic and social survival considerably higher on their agendas than their desire for any form of retributive justice; and often, when asked how they define the "justice" that they cry out for, they do so in terms of having these very urgent economic and social needs satisfactorily met.) The economic justice needs of the people in both these countries-- and particularly, perhaps, in South Africa-- are still far from being satisfactorily met. But at least the post-conflict governments in both countries have made a start on this task. And by having a decent measure of political and social stability, and by being able to cut the budgetary and manpower burdens imposed by their previous levels of military spending to a significant degree (especially in Mozambique), they have registered some achievements in improving the lives of their citizens.

In Rwanda, meanwhile, not only have the government and people remained mired in re-examining and reliving the traumas of the past, but in addition the post-genocide government has built up a bloated military and security apparatus that has maintained an oppressive political system at home and has been a major participant in the waging, since 1996, of a series of wars and milirary occupations in the neighboring Democratic Republic of Congo. Between them, these wars in the DRC (in which Uganda has also participated) have left an estimated four million people dead and have ravaged areas of DRC some 16 times larger than Rwanda itself.

Now it is hard, evidently, to draw a straight line of connection between the RPF's very extensive pursuit of a prosecutorial strategy at home at home and its engagement in that series of massively lethal and damaging foreign wars. I can note, however, that the political content of the prosecutorial strategy at home has been to maintain the country's Hutu majority population in a state of persecution, fear, and political marginalization; while the need to combat alleged concentrations of 'Hutu Power' extremists in DRC has been the main pretext under which the RPF has maintained its bloated military presence in the DRC. So at the political-rhetorical level, and perhaps also at the level of the RPF ruling groups' own core ideology, there is a clear link between the two. At home as abroad, instead of seeking an equitable and mutually respectful form of political accomidation with opponents, the RPF's leaders have sought to use means of forceful coercion-- including, at home, the use of its broad strategy of prosecutions.

... In light of the above, I would like to urge my friends and colleagues in the international human rights movement to be open to the idea of interrogating and reframing these key concepts of "justice" and "accountability" to which we are all so attached in a way that is considerably more forward-looking than is generally the case today. As understood today, these terms have come to be associated almost wholly with the institution of processes and procedures that look in a specific, detailed, and often very time-consuming way at the events of the past. But should they not also be applied to the need to build just and accountable political systems going forward?

Another related question is what should we do when a choice or a trade-off has to be made between the requirements of the task of winning some form of justice and accountability in the backward-looking sense, and the task of winning it going forward? This choice is, it seems to me, often posed particularly starkly in countries reeling from recent widespread political conflict. (As an important related matter, I note that the commission of atrocities in most or perhaps all cases does actually require a state of continuing, violent, inter-group conflict that incubates,and perpetuates it. There is, after all, a very solid reason why the field of atrocities law grew out of the jurisprudence of "war crimes"... One important corollary of this is that truly to end the commission of atrocities, we need to succeed at finding peaceful, rights-respecting ends to situations of armed conflict. More on this, below.)

Anyway, if we are looking at the vast majority of countries and communities where the commission of atrocities has been widespread in recent times we can see that these are countries that (a) may be way down near the bottom of the per-capita income scale, and may have a very poor or virtually non-existent infrastructure at the basic level of a nationwide network of roads, bridges, and shool-houses, let alone in terms of court-houses and the administrative infrastructure required to support them, and (b) are reeling from widespread recent conflict that has devastated much of whatever physical and institutional infrastructure previously existed, while leaving the population further impoverished and riven by deep social/political cleavages marked by continuing fear and feelings of vulnerability and hostility.

What are the potential costs to such a society of investing huge amounts of the available aid dollars, and the attention of decision-makers at all levels, national and international, into launching some program to enact (or exact) the kind of backward-looking "justice" and "accountability" that rights activists in secure western/northern countries seem to favor? I would argue that, as in Rwanda-- and even more so in post-invasion Iraq!-- the costs can be enormous. Certainly, if war-crimes courts are the chosen vehicle, then this very vulnerable population that is emerging-- as its members fervently hope-- from a period of damaging armed conflict, then the social/political cleavages that marked that conflict will almost certainly be deepened by such proceedings. And meanwhile, a significant proportion of the aid dollars and decisionmakers' attention that could have been invested in the tasks of socioeconomic reconstuction that any community emerging from chronic armed conflict so desperately needs, will be diverted instead into the pursuit of this divisive and backward-looking project. (The amounts of money involved are not trivial. By the end of 2005, each case that the UN's International Criminal Tribunal for Rwanda (ICTR) had tried had cost it $42.3 million! Most of the immediate beneficiaries of this spending were not Rwandan nationals. Many have been highly paid lawyers from high-income countries.)

So yes, I am all for justice and accountability! But instead of construing these worthwhile goals in a backward-looking way, let us reframe them in a way that as places the stress instead on building political and social systems going forward that as far as possible embody and ensure these ideals within these different societies. I would maintain, moreover, based on my own enquiries with people who have survived periods of horrendous armed violence, including violence that touched most of them very personally, that such survivors of violence -- please let's not carry on infantilizing them by calling them 'victims'-- seem overwhelmingly to prefer to focus on justice and accountability projects going forward rather than on endlessly looking back at a past that in all cases was very painful, and is often still painful to remember.

And as for those other, often barely goals of the deontologists among us-- such as "giving Pinochet what he deserves", or Joseph Kony, or whomever-- we might usefully remember some advice I heard in 2001 from Rejoice Mabudhafasi, a Black South African woman who had suffered considerable abuses from the apartheid government during her years as an anti-apartheid activist, and who later became Deputy Minister for the Environment in one of the post-democratization governments. When I asked how she felt about the fact that the apartehid-eras torturers all escaped punishment she said, "We can never do anything to them as bad as what they did to us. It's not in our nature. God will deal with them. We leave that to Him." I heard a very similar sentiment expressed in Rwanda in 2002 by Rev. Michel Kayetaba, a genocide survivor who by then was running a very effective, church-based program that brought genocide survivors and the family members of accused genocde perpetrators together in socioeconomic rebuilding projects around the country.

Regarding the concept of accountability, there is another related question: namely whom should we seek to have the perpetraors of former violence be accountable to? Sometimes, in the west, there is an unexamined assumption that such people should be held accountable to "the whole of humanity", or "the world community"-- or at any rate some group that definitely includes us. But if people like Ms. Mabudhafasi or Rev. Kayetaba are prepared to forego attempts to enact earthly judgments and punishments, then who are the rest of us to insist on them?

... One final word here. On March 8th, I had the pleasure and privilege of taking part in an excellent round-table discussion, organized here in London by the Royal Africa Society and some other organizations, on the topic of "The ICC, Justice Systems, and Reconciliation." One of the afternoon speakers was Mariana Goetz, who is an advisor to the ICC at the UK-based victims' rights organization Redress. Previously, she has worked on the legal staffs of both the ICTR and the Special Court for Sierra Leone; and she was part of the team that, after the US-UK invasion of Iraq, trained the participants in the 'Iraqi High Court' that tried Saddam Hussein and others. Ms. Goetz talked a little about the development of the concept of victims' rights in recent international instruments, noting that they were adressed and defined in two UN conventions in 1985 and 2005. The second of those conventions dealt particularly with the rights of "victims" under international and international humanitarian law. (See the text of this document here. The list that follows is in Section IX.)

As Goetz described it, this convention describes victims as having both procedural and substantive rights, with the latter including a "right to reparation." Such reparation, she said, can have five different elements:

a right to restitution of expropriated properties,
a right to rehabiliation, whether phsyical or psychosocial, for the harms done to the person,
a right to compensation,
a right to 'satisfaction", which may include the issuing of an apoligy, the building of a memorial, or other similar acts that symbolize reparation, and
a guarantee of non-repetition.*

Now this whole list is very interesting. But the last item seems extremely important to me. For how, in practice, might the members of the international community best assure the "non-repetition" of acts of atrocity in any country or community wracked by recent atrocities? I am strongly of the view that the best way to do this is to help the parties to the conflict that has incubated those atrocities to find a durable and rights-respecting peace. And now, this important goal of a "a guarantee of non-repetition" has been codified as constituting one of the rights of victims/survivors of any atrocity.

Now I know I need to do a whole lot more more to lay out my whole argument about the relationship between violent conflict and the commission of atrocities; and I shall try to do that as soon as I have time. But for now, let me just note (1) that any society, anywhere, can always contain a certain number of individual sociopaths or atrocity-committing mass murderers, though their number is usually very small; but that 2) such individuals only thrive, gain social power, and proliferate in number in circumstances in which social norms break down under the stress of violent conflict.

When sociopaths commit their atrocities in settled societies that enjoy a significant level of social peace, their activities can nearly always be brought to an end through the work of a police force and the associated criminal-justice system, which between them are capable of protecting the rest of society from any repetition of atrocious acts by these individuals. But in societies wracked by violent conflict, or in which the rule-of-law protections for the safety of ordinary citizens are absent for other reasons, sociopathically inclined individuals can not merely continue to enact their atrocities with a high level of immunity from the law but are also, often, either shielded by some branches of the public authorities or otherwise accorded increased social power by virtue of the continuation of the state of conflict.

What is centrally needed, therefore, is to strengthen the ability of society as a whole to protect itself against the repetition of such acts. This can be achieved in a number of different ways. One way, in societies that have the social and legal infrastructure needed for this, is to take away the capacity of these individuals to commit further outrages by incarcerating them after the holding of an appropriate and fairly conducted criminal proceeding. (I note here that neither the holding of trials nor the maintaining of an incarceration system are cost-free ventures. The burdens they impose on society are not only financial. In particular, the incarceration any person of bread-winning age affects a wide circle of family members and dependents; and the incarceration of large numbers of people, as in the present-day US, can exact enormous social costs. However, there probably are some circumstances in which incarceration is, on balance, a helpful response.)

Another way in which a society can protect its members against the repetition of past acts of atrocity is to remove both the motivation of those past offenders to re-offend and, crucially, the social/political context within which they committed their earlier offenses, and to do this through the institution of a new, more just and acountable social order while ensuring the integration into this new order of as many as possible of those past offenders.

That was the path that was followed in Mozambique after the peace agreement of 1992. Under the terms of the GPA some 93,000 former combatants-- from both sides of the line-- were given DDR packages that gave each of them some basic living necessities, transportation to their home communities, and a demobilization stipend that assured them a small cash income for the next 24 months. During that whole process, no attempt was made to sort out former combatants who had committed the many atrocitirs that had marked the civil war from those who had not. A small number of combatants from both sides were not demobilized but were formed into a new national army that integrated fighters from both the previous fighting forces.

In 2003, I was able to interview two men who, between them, had presided over the military system that was responsible for the commission ofa huge proportion of the war-time atrocities: that of the Renamo insurgent force. These men were Raúl Domingos, who had been head of the Renamo military, and Hermínio Morais, head of the Renamo Special Forces. After the conclusion of the GPA (which he helped negotiate), Mr. Domingos was elected to parliament on behalf of the political party that Renamo formed after 1992. Mr. Morais also helped to negotiate the GPA. After it went into effect he stayed in the new, united armed forces as the head of its training unit; after some years he left the military and entered law school, and when I interviewed him he was about to qualify as a lawyer.

How do Mozambicans feel about outcomes such as these? Nearly all of them feel very satisfied. They feel, moreover, that the social order put in place after the conclusion of the GPA gives them fairly strong protections against the repetition of the acts of barbarism committed during the war, and they have a strong reluctance to doing anything that might damage that social order or revive even any general "aura" of the violence of the war years. (Hence, they have a generally strong reluctance to even talk about that violence, but that is another story.)

Based on my study of the developments of the post-conflict, post-atrocity years in these countries and elsewhere, I would say that all the rest of us in the human rights movement need to do some drastic rethinking of the way we look at issues of justice and accountability.

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* Subsequent to writing the above, I was able to access the text of the U.N. General Assembly Third Committee's document Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN doc. # A/C.3/60/L.24 of 24 October 2005. Article 23 states the following:

23. Guarantees of non-repetition should include, where applicable, any or all of
the following measures, which will also contribute to prevention:

(a) Ensuring effective civilian control of military and security forces;
(b) Ensuring that all civilian and military proceedings abide by international standards of due process, fairness and impartiality;
(c) Strengthening the independence of the judiciary;
(d) Protecting persons in the legal, medical and health-care professions, the media and other related professions, and human rights defenders;
(e) Providing, on a priority and continued basis, human rights and international humanitarian law education to all sectors of society and training for law enforcement officials as well as military and security forces;
(f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as by economic enterprises;
(g) Promoting mechanisms for preventing and monitoring social conflicts and their resolution;
(h) Reviewing and reforming laws contributing to or allowing gross violations of international human rights law and serious violations of international humanitarian law.

It seems evident to me that none of these tasks can be accomplished in a situation of ongoing violent conflict.

Sins of the predecessors

Should the largely pauperized population of today's Iraq be held responsible for making 'reparation' payments to people and institutions in Kuwait and elsewhere that were damaged by Saddam Hussein's August 1990 invasion of Kuwait?

Should the extremely poor population of today's South Africa be held responsible for making 'reparation' payments to people and institutions in even poorer Mozambique, Angola, Namibia, and elsewhere that were damaged by the apartheid regime's decades-long aggressions against those countries?

Should the largely pauperized population of today's Iraq be held responsible for making 'reparation' payments to people and institutions in Iran that were damaged by Saddam Hussein's September 1980 invasion of Iran and the very lengthy war that ensued and that also involved Iraq's largescale use of chemical weapons against Iran?

I would say that the people damaged in all three of these cases have roughly equivalent moral claims to some form of 'reparation'. But the problem is, of course, that the people now governing in South Africa (and 'governing' as best they can in Iraq) are people who were themselves majorly the targets of the earlier, abusive governments in those two places. So it is hard to see how these new successor governments can be held responsible for the sins of their predecessors... And indeed, in South Africa, the question of the country paying financial recompense to the peoples of Mozambique, Namibia, and Angola has never really to my knowledge come up.

And neither has the question of Iraq paying reparations to Iran.

All of which makes it fairly disquieting for me to have learned recently that the UN Compensation Commission that was established in 1991 with the purpose of "process[ing] claims and pay[ing] compensation for losses and damage suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait" has continued until now on its course of turning over to Kuwait and other claimants regular payments funded by the UNCC's expropriation of five percent of the proceeds of Iraq's oil exports.

Just yesterday, the UNCC issued a press release describing proudly how in the current quarter it has disbursed $417.8 million to claimants in seven countries. The countries that got the biggest shares of those payments? Kuwait, which got $335.5 million, and Saudi Arabia, which got came in a distant second with $30.3 million.

A factsheet issued by the UNCC some time earlier reported that "Awards of approximately US$52.5 billion have been approved in respect of approximately 1.55 million ... claims", and at that point around $21 billion had been disbursed. As far as I can see from the charts I viewed, the lion's share of that money has gone to Kuwait.

Now I know Saddam's regime was bad, and caused much damage to Saudis and Kuwaitis. And it is possible (I suppose) that there, somewhere, some indigent Kuwaitis who benefit a lot from these reparations. But Kuwait's GDP per capita in 2005 was $17,421. It seems quite crazy to me to expect that Iraq's hard-pressed people should still today-- 15 years after the liberation of Kuwait from Saddam's rule, and more than three years after Saddam's overthrow at home-- be paying these reparations to Kuwait.

Doesn't anyone in the international "community" remember the effect the reparations exacted from Germany after WW1 had in helping to incubate Nazism among the Germans? Is this a good way to build stability in the Gulf region today?

[Cross-posted at Just World News.]

Uganda's challenge to the ICC

What follows is a long post, that contains much material from the research trip I made to The Hague and Uganda in late July 2006. The following links to different portions of it can only be used if you're looking at the archived version, not the "front page" of the blog.

After an introductory section the post addresses the following: a brief decsription of the dimensions of the anti-humane crisis in northern Uganda; the main points gleaned from a short focus-group discussion I held in an IDP camp near Gulu; my interview with ICC prosecutor Luis Moreno-Ocampo; a reflection on the effects of the work of the ICC and the ad-hoc tribunals; how Ugandans have been pursuing a way forward ; and some additional points.

In addition, you can read two columns I published in The Christian Science Monitor in mid-August about the situation in northern Uganda and the dilemmas it causes for the ICC: here and here. You can read early, unedited field-notes from my time in Uganda, as posted on my personal blog Justworldnews.org, here , here , and here . And you can access the other valuable resources TJF has on Uganda, here.

Uganda may or may not now have a ceasefire in the long-running conflict between government forces and the Lord's Resistance Army (LRA). The Kampala Daily Monitor indicated in an August 25 story that the ceasefire was just about to go into effect. The BBC's story that day was a bit more reserved... But it does seem that some kind of significant watershed re the cessation of hostilities has been reached at the peace talks the Kampala government has been conducting with the LRA since mid-July in Juba, South Sudan.

This situation is extremely important to the future of transitional justice since it forms a large portion of the first workplan of the infant International Criminal Court. No fewer than five of the first six arrest warrants issued by ICC chief prosecutor Luis Moreno-Ocampo have been against leaders of the LRA. (The sixth is against a leader of an anti-government armed group in the Democratic Republic of Congo, DRC: He fell into the ICC's hands as a "target of opportunity" when the DRC government handed him over to Ocampo earlier this year.)

One consequence of the arrest warrants that the ICC issued against LRA leader Joseph Kony and his four colleagues (one of whom was reportedly killed in a firefight in mid-August) was that from that point on it became technically illegal for any government party to the ICC to engage in negotiations with them. States party to the ICC, as Uganda is, were thenceforth supposed merely to arrest the indictees.

However, that did not stop the President of the Government of South Sudan , Dr. Riek Machar, from inviting Kony and the government to send representatives to peace talks in the GOSS's capital, Juba. (Sudan is not a party to the ICC, though Ocampo thought he had won a special commitment from the Sudanese government in Khartoum that they would cooperate in the arrest of the LRA leaders. The GOSS is not, actually, a sovereign government but is supposed to be subordinate to Khartoum. However, in its pursuit of this peace process it seems to be acting very much like a soveriegn government, and Khartoum has shown no inclination whatsoever to try to stop this initiative.)

Nor the did the fact of the ICC having issued arrest warrants against the LRA leaders stop the Ugandan government, led by President Yuweri Museveni, from sending his representatives to take part in the Juba peace talks. Museveni explicitly offered an amnesty to Kony and his colleagues if they should come back home to Uganda and live in peace; and he even reportedly told them that if they did so his government "would fight tooth and nail" to protect them. He and his government ministers have repeatedly talked about their desire in the peace talks as being to "give Kony a soft landing" in Uganda.

For their parts, Kony and his fellow-indictees have so far not taken part in the Juba talks directly. They have remained holed up in a barely accessible portion of the rain forest along the South Sudan-DRC border, most likely in the DRC's Garamba National Park, and have sent only lower-ranking emissaries-- mainly members of their networks of supporters amongst the worldwide Acholi diaspora-- to the talks in Juba.

The northern Ugandan situation thus represents an acute and real-time "case" of the conflict between the demands of peacemaking in and for northern Uganda and the demands of the ICC (which preclude amnesty.) Given that one of the major themes of my upcoming book Amnesty After Atrocity?: Healing Nations After Genocide and War Crimes is precisely whether amnesty offers should be offered as part of negotiations that end atrocity-laden conflict, in late July I traveled to The Hague and Uganda to learn as much as I could about what has been going on.⁽¹⁾ In The Hague, I was able to interview ICC prosecutor Ocampo. In Uganda I intervierwed a number of heads and officials of NGOs in Kampala and Gulus, two significant ethnic-Acholi politicians, the Anglican Bishop of Northern Uganda, and spokesmen for the army and the government's Amnesty Commission. (I had also previously interviewed Uganda's ambassador to the UN, in New York.). While in Gulu District, I had a discussion on current issues with a group of ten community leaders in the Unyama IDP camp...

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Let us recall here that UN humanitarian affairs chief Jan Egeland some months ago described the humanitarian situation of the 1.7 million Ugandan citizens currently confined to "IDP camps" in the north of the country as being worse than that in Darfur. (Some dimensions of the often lethal situation in the camps are described here. ) Another possible way to describe the nature of those camps-- given that back in 1996 the government relocated some 90% of the residents of some northern areas off their own lands and into the camps by force-- would be to call them "strategic hamlets." The majority of the people thus forcibly relocated back in 1996 are still not allowed to return to their hones and farms.

In addition to the bad effects of this forced villageization, the peoples of northern Uganda (mainly Acholi, but also Lango and Teso peoples) have been subjected to more "spectacularly" atrocious violence from the LRA, including killings, mutilations, rapes, and-- most painful of all for many North Ugandans-- the widespread abductions of young people and their violent induction into the LRA's ranks as fighters or sex-slaves. They have also been exposed to rapes, torture, and other abuses from members of the Ugandan armed forces. Human Rights Watch's round-up of gross abuses committed against noncombatants by both the LRA and the government forces during 2005 can be found here. (Note that that summary does not include any mention of the government's continued maintenance of the forced villageization system, which was almost certainly the one single policy that inflicted the greatest number of-- otherwise avoidable-- deaths on northern Ugandans. Moreover, the camps haven't even reliably provided the protection against continued LRA depradations that the government had promised to their residents/detainnes. Indeed, James Otto, the head of the Gulu-based NGO Human Rights Focus, said that the camps had often offered the LRA a "one-stop shopping" opportunity whereby in a single raid on an IDP camp they could abduct a whole group of children together...)

Be that as it may, evidently the peoples of northern Uganda have suffered quite enough during the 20-year civil war in which their region has been mired. Fortunately for them, however, they have a number of effective civil-society organizations, both religious and secular, and have also built up an apparently sturdy presence within Uganda's still-democratizing national political system. In recent years leaders from within, in particular, the Acholi community have come to form a solid and consistent bloc arguing for the importance of peacemaking as the key to ending the atrocities their people have suffered. Many of the Acholi people I interviewed in July spoke of the particular pain of the situation they have been in: Their community has borne the brunt of both the LRA's violence and the government's counter-violence-- but at the same time, they still consider themselves to be loyal members of the national political community, while they also look at Kony and his followers as errant members of their own ethnic community. (Indeed, a high proportion of the LRA fighters started out their time in the organization as abducted and forcibly impressed children.) So the Acholis have felt badly caught in the middle of all the violence that has swirled around them.

Dr. Morris Ogenga-Latigo, the (Acholi) leader of the national parliamentary opposition, reflected the complexity of the situation the Acholis have found themselves in when he described a very troubling spate of violence that erupted in 2001-2001. He told me, "There were so many atrocities by the LRA then, especially in Pader District-- that was when they even took some people, including children, and cut them up and cooked them! And the publicity about this put so much pressure on the government, that they decided from then on that they would probably need a political strategy to complement the military campaign they were waging, which was called Operation Iron Fist... You see, the government had told us they had solved the problem of the LRA. But evidently they had not. And they seemed incapable of assuring the security of the people."

I then asked Latigo what the main emotional response of Acholi had been on hearing the news of those atrocities. Had they felt anger, or fear, or what? "When we hear of such atrocities, our main feeling is one of resignation," he said. "We ask, 'Why is God sending us this fate?' It is no longer useful for us to get angry with either the government or the LRA." (You can read a longer-- though still not well edited-- account of that interview here. )

Nearly all of the Acholi people with whom I talked said that in their view, the most important thing to do in order to end the war was to get Joseph Kony and his colleagues 'out of the bush', and reintegrate them into civilian Acholi society. They saw this is the best guarantee they could have that the LRA's violence, or violence from a successor group very similar to it, would not re-erupt in the future.

---------------------

I had a very informative discussion on this point, and on the effect the ICC's prosecutions have been having on the peace process, during the focus-group discussion I had with camp leaders in Unyama camp (population 20,400), on July 27, 2006. Camp leader Odoki Raymond Ladaka and his assistant Harry Okello kindly convened this group for me, immediately after I met them at the entrance to the camp. My journalistic colleague Arthur Owor had come with me to help with my enquiries in the camp. He had helped describe to Mr. Odoki the kind of group we wanted to meet with, and during the discussion he ended up interpeting all the proceedings between Luo and English. Although the group participants all seemed fluent and easily comprehensible in English they said they felt more comfortable expressing themselves in Luo; and from my part, having the interpretation going on gave me more time to be fully present with them and listen to them respectfully while I was also able to take my own notes in the interstices. (I generally hate to use recording devices in my work as in my experience they very frequently squelch the free expression of views.)

In a small amount of time Mr. Odoki and Mr. Okello had gathered together seven other adult members of the camp community-- most of them "influential" persons within the community, though one was described simply as a "peasant farmer" and another as a "housewife." We all sat in a circle on the rough grass under a thorn tree in an open space between the tight-packed mud huts used as shelters by the camp's population and the smaller circle of (less densely packed) huts where the government soldiers slept. We were joined in the circle by Robert, a 35-year-old taxi-driver and resident of Gulu Town, who had driven us to Unyama, and later by another influential member of the camp community. At that point, Mr. Owor and I were seeking and recording the views of eleven persons, ten of them camp residents, of whom five were women and five were men.

During the discussion the driver, Robert, and Florence, the deputy leader of one of the "zones" in the camp, both spoke in favor of the ICC indictments and arrest warrants. Everyone else spoke against them. I found it heartening that these people felt able to express a variety of opinions in a large group, and that they listened very respectfully to each other as they talked. I also found the balance of opinion there--with just two of the 11 participating in the discussion voicing support for the ICC-- fairly notable.

Here are some of the comments I recorded:

I first asked how my hosts here, and my new friends, looked at the work of the ICC and its effect on the peace process.

Dep. Camp Leader Harry Okello: The ICC should be suspended, to give peace talks a chance. because if the prosecutions proceed, Kony won't ever come out of the bush.

Camp Defense Secretary Kito: The ICC is looking only at the commanders. But what about the other LRA fighters? They would just spread out if the arrests proceed, and make more problems everywhere.

Driver Robert: If you arrest Kony, though, it would be like doing away with the head of the household and it would be good because it would end the problem.

Vice Zone-leader Florence: What mechanism does the ICC have to arrest Kony? I hope it works. I compare it to the situation of a hen and its chicks. If you do away with the hen, the chicks will scatter. That's good.

Camp Women's Chair Margaret: The ICC is not delivering the peace we need. It will take a long time to do its work, anyway. So meantime we should pursue peace.

Camp Leader Raymond Odoki: I consider that the war here has become a kind of business. But if the ICC arrests its indictees then the backlash would come against the people. We should make peace. Look at the example of Sudan: President Bashir sat down with Garang, and it was good. We should avoid careless statements of the kind that President Museveni sometimes makes-- but he is also given false reports about what's happening by people who don't directly feel the pain of the conflict, as we do.

Housewife Wiliberti: The arrest warrants won't work. I see no way to end the conflict through issuing arrest warrants. Therefore we should concentrate on making the peace talks work.

'Mobilizer' Dennis: The arrest warrants should be revoked so Kony and the other commanders can themselves come to the negotiating table.

Kito: The UN is the biggest world body. Why is the UN reluctant to go and fight Kony in Garamba? [Note: If this comment was correctly recorded, then it seemed to represent two views that I heard with some frequency in Gulu: first, a general misunderstanding of the ICC as being somehow a part of the UN, and of the UN as having impressive but suspiciously under-utilized policing and coercive capabilities; and second, a view that the 'international community' in general was involved in conspiracies to perpetuate northern Uganda's already lengthy civil war. See below: Ester.]

'Councillor' Catherine ( also, the Chairperson of her Sub-County, before she was relocated here): I agree with what Dennis said.

... Peasant Farmer Angelo: Why doesn't the ICC speed up its process and be done by August so we can can all back to our lands for the new planting season?

I asked what kind of a reception they expected Kony to get if he should come back to the Acholi area, Odek, that was his homeplace. Our hosts had a short discussion among themselves, which Mr. Owor then described to me as expressing a consensus view that "He should just come back to Odek and people would accept him." However, Florence threw into the discussion the additional idea that he should come back and be absorbed into the national army. (Not as crazy as it seems if you remember what happened with the Renamo forces after the Mozambique ceasefire, or the ANC forces after democratization in South Africa. However, I failed to explore further with Florence whether she thought this path would prove to be a punishment of sorts for Kony or would be valuable because it would at least offer him a livelihood.)

I asked a general question about what should be done:

Harry Okello: If the peace talks fail, then the governments of Sudan and the DRC should let theUgandan army go and get Kony.

Camp Women's Vice-chair Ester: The UN is the biggest world body. Why is the UN not arresting Kony? ... I believe the ICC is reluctant to arrest Kony themselves because they're all in business together.

Kito: The ICC should make an agreement with Kony that he could come out of the bush. And both sides should keepo their contract.

I asked how the war had most affected them:

Harry Okello: We lost nearly all our livestock and so many valuable trees. These were the sources of our livelihood. We've lost our education system.

Raymond Odoki: HIV and AIDS have come into our community.

Ester: We've had such an erosion of our traditional culture.

Raymond: It used to be that our elders would sit with the children and talk with them and pass on their traditions. But now, no more. The kids don't even know their ancestral homes! There will certainly be many land disputes when we do get back to our lands. I also want to stress the issue of food. What we are given here in the camp is certainly not enough to feed our families.

Earlier, as Mr. Odoki and I had walked slowly through the camp, he had given me many mnore details about camp life and his family's experiences during the war.

His family's homestead was not far away, on a very green-looking hillside that was clearly visible from inside the mud-brown confines of the camp. He had had 12 children, but had lost seven of them to villageization-related and other conflict-related problems, including the terrible access to medical care.

He said that prior to his forced relocation into the camp he had worked as a recptionist in the teacher's training college that was also located right here. (Indeed, it seemed as if the army camp and the IDP camp had grown up around the few battered concrete buildings that were all that was now left of the college.)

He said,

This was my third relocation during the war. This relocation was in 1996. Rebels had come to this general area and killed four people there [he pointed to one portion of hillside], six people there [he pointed elsewhere], and burned huts in other places. The LRA and the army had both been very active in the region. But at that point the government came in and gave us 48 hours to move ourselves and our families into this camp they were creating here.

Some people stayed outside the camp until 1997. But then the army brought big, big guns to shoot at them. [He pointed to where that had happened.] So then everyone came in.

We had to leave behind everything that we had cultivated, and we have been here ever since.

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Unyama camp feels as if it is on a different planet than the sleek high-rise office building in the Hague where, just two weeks previously, I had been interviewing Luis Moreno-Ocampo.

Mr. Ocampo, an engaging, lightly-bearded Argentinian started off our hour-long interview by musing a little on his own past. As a public prosecutor he had at a young age decided aggressively to pursue criminal cases against leading organizers of the "Dirty War" that his country's military had waged against suspected leftist opponents in the 1970s.

He commented,

The working of a criminal justice system assumes a social consensus. In an established political system, criminals are everywhere recognized as marginal people. But that wasn't present in Argentina at that time I was doing that. There wasn't a consensus. Many people there still saw the junta as protecting the interests of society. Including my mother, who was in the same church as General Videla...

Justice is not just for the victims! I had to work hard with my mother to convince her. But then, after two weeks of the trial there, my mother said I had been right: what they had done were indeed crimes. That trial delegitimized the use of violence by the army in that way and underscored a basic principle of the rule of law.

Later, he noted this:

The challenge the ICC faces in its work is different from if you were sitiing in Boston or Stockholm. There, the role of a court is to 'confirm' laws, but for us, here, it is to 'establish' laws. And international relations have to be based on law-- including the 'duty to punish'.

He assured me that in Uganda, in addition to investigating the acts of the LRA leaders, he also had investigations underway into allegations of criminally atrocious behavior by people in the Ugandan People's defense Force (UPDF, i.e., the army). "But it was on the basis of the much greater gravity of the offenses committed by the LRA leaders that I prosecuted them first."

He explained that in choosing his cases, he had been guided by the two criteria of the gravity of the alleged crimes, and "complementarity", that is, whether the national jurisdictions in questions looked ready and willing to prosecute them themselves. (The two ad-hoc UN tribunals established in the 1990s for Rwanda and former Yugoslavia were given "primacy" of jurisdiction over any desire the relevant national authorities might have had to prosecute; but in the ICC's statute, the ICC's role is defined as being "complementary to" that of national jurisdictions.)

Ocampo explained that it was on the basis of the principle of "gravity" that, over the year following his April 2003 appointment as chief prosecutor, he decided that he would launch the ICC's first actual judicial investigations into the situations in Uganda and DRC. (Both of them are ICC member states. The court cannot launch any investigations into "situations" within the territory of non-member states, nor any "situations" that occurred before the ICC Statute came into effect in 2002.) He told me that in both these cases, he invited the governments to submit their respective situations to him for action, which Museveni did after a meeting the two men had in London in 2004..

He said,

In the DRC, the worst situation that occurred after 2002 was in Ituri propvince... In Uganda, nearly everyone agrees that the LRA was creating the worst situation... With respect to the UPDF, we will still have to see whether their actions reach up to the 'gravity' threshhold.

He said he had considerable evidence "based on intercepts" that showed that Kony was discussing how to manipulate the peace process to gain advantage from it.

I asked him whether he was not concerned that perhaps, given the ability of national governments to control the ICC's access to national terrain, evidence, and witnesses (as has happened, mindeed, between ICTR and Rwanda), there wasn't a real danger that the net effect of the court's work might not be to strengthen the hand of abusive governments at the expense of non-governmental movements and actors. He did not answer this question directly, but said, "Our goal is to end the worst crimes. So that in ten years we can help more people in the world to have an improved situation." (I note that asking about effects is different from asking about intent.)

I asked how, given the plethora of different kinds of information at many different levels that he would need to understand about the situations in the many farflung countries his office would be dealing with, he knew what kind of a conceptual framework he should build to best understand each situation.

He said,

We have 160 people working here, from 40 different countries. I have sent 20 missions to Uganda. I have talked to the Paramount Chief of the Scholi and so many other people there...

We have a particular goal, which is to prevent future crimes. We have very good information from many, many sources-- the best in the world! We don't care about idelogy. We are just looking at the facts.

These kinds of massive crimes have no owners. It is not just an Acholi crime or a Ugandan crime; but it's an international challenge...

The ICC is a bit different from the ad-hoc courts. They were just a way to punish people according to the rules in their statutes. But our role is much bigger: It's to build something over the longterm.

-----

I have to confess that Ocampo was not able to allay my fears that the effect of the creation of the ICC might be to strengthen the hands of (even abusive) government vis-a-vis their non-governmental political opponents or other non-governmental actors. Certainly, the evidence so far of the effect of his own work on Uganda and DRC would seem to point in this direction. In the DRC, it was the Kabila government that had captured Thomas Lubanga Diyilo, the head of the Union des Patriotes Congolais, and handed him over to the ICC for trial. And in Uganda, it has been only the LRA's leaders who have had indictements and arrest warrants issued against them...

This is really not surprising, given that it is national governments that totally control the ICC's access to the "scenes of the suspected crimes", and to all the witnesses and evidence therein. And we have certainly already seen, with ICTR, the degree to which the national government in rwanda has been prepared to condition ICTR's continued access to witnesses and evidence on the ICTR undertaking not to indict suspected perpetrators of war crimes and crimes against humanity there who have been on the pro-government side. (Indeed, while I was The Hague in July, I received further, solid-seeming confirmation from well-placed persons there that it had indeed been the pressure of the Rwandan government, with the extremely strong support of Washington, that had forced former ICTR chief prosecutor Carla del Ponte to resign from that position... The Americans-- who have been much bigger supporters of ICTR than they ever have, obvioysly, of the ICC-- had reportedly confronted Del Ponte with a straightforward request that she promise not to prosecute any pro-Kigali individuals. She refused to do this, and the Security Council did not renew her mandate for ICTR.)

I do have one related comment to make, as well, and that concerns this criterion of "gravity" by which Ocampo and his colleagues set such great store. It is true that many of the acts of which the LRA leaders have been credibly accused-- which include cannibalism, the abduction of children, the widespread mutilation of civilians, the sexual enslavement of captive girls and women, the forced impressment of young boys into the fighting forces and their initiation into acts of horrendous atrocity-- are such as to be extremely shocking to anyone who learns of them. The slow death of civilians in IDP camps/strategic hamlets is not nearly as "spectacular" and for that reason may not seem as shocking. (What, I wonder, does this say about the prurience of our own sensibilities?) And it is probably true that the body of international atrocities law is not as well adapted to prosecuting those aspects of, say, Uganda's forced villageization process that have killed scores of thousands of Ugandans, as they are prosecuting acts by the LRA that probably actually resulted in far smaller numbers of deaths and a far smaller negative effect onthe allover floursihing of Ugandans than has the villageization program.

In this regard, as a US citizen, I have to note the somewhat similar "double standard" that is commonly applied regarding acts of violence that have been committed within US-occupied Iraq. There has been considerable media attention (not to mention media prurience) directed at the "spectacular" actions of jihadists who have undertaken (and videotaped) beheadings of captives and other grisly acts, but far less to the effects of occupation-related policies that have caused a widespread collapse of public health and public security, resulting in scores of thousands of entirely avoidable deaths of Iraqi civilians.

Well, be that as it may, too. I do just make a plea here, though, for a forthright interrogation of the concept of "gravity". What, actually, are we talking about here, Mr. Ocampo? If we are talking about deaths and other severe constraints on human flourishing, then should we not look at those comprehensively, rather than looking simply at acts of "spectacular" violence?

-----

Okay, I admit I'm an ICC skeptic; and the discussions and other reseach I was able to conduct over this summer have made me into even more of one than I was before. (Though of course I recognize the the intensity of the idealism with which nearly everyone concerned has gone into the ICC venture.. However, good intentions alone are not enough. One also has always to be attentive to the need to check the moral quality of one's actions by looking at their effects, as well.)

Inside Uganda, meanwhile (as I wrote about in this August 24 column in the CSM), Gulu LC-5 District Council chair Norbert Mao has been working with allies in the national legislature to try to get the main points of key traditional conflict-resolution mechanisms used by the Acholis codified and incorporated into national law.

I wrote there:

Mao, a graduate of Yale Law School who was recently elected chair of the majority-Acholi Gulu District Council, expressed a nuanced view of the ICC's efforts: "As a lawyer, I know the ICC has its role.... And in general, that's an important role. All societies need to have an accountability system.... The essence of the court is to ensure accountability. But we have accountability systems in northern Uganda, too - our traditional systems."
Mr. Mao explained that the Acholi system of conflict resolution, called mat oput or "drinking the bitter root," requires perpetrators to acknowledge their crimes, show remorse for them, and ask the community for forgiveness. Western-style criminal proceedings require none of these things, though a perpetrator who shows remorse can sometimes win a lighter sentence.

Now, Mao, Ogenga-Latigo, and their allies are working fast to have the main points of mat oput codified and incorporated into Ugandan law. (Other countries that have incorporated traditional systems into national law in this way include New Zealand and Rwanda.) Mao told me he hopes this will enable Uganda to tell the ICC that if the LRA leaders undergo mat oput, then they have been fully dealt with under Ugandan law, and therefore the ICC should withdraw its indictments. Uganda's peace campaigners have also recently won the right, as recognized victims of Kony's crimes, to be represented in a "pretrial" hearing here at the ICC: They plan to use that hearing to argue strongly, as victims, that the indictments be dropped.

It strikes me this is a very constructive and creative approach to the dilemma that the peacemakers, the Ugandan government, and the ICC all now face.

-------------

More from me on this soon, I hope. I do just want to get the above material posted for public readership onto the blog before too much more time passes.

In the meantime, I just want to note two other points:

This very useful resource, a paper from Zachary Lomo, the former director of the Refugee Law Project in Kampala. It's a slightly modified version of a text he had printed in the Sunday Monitor on August 20. It's titled, Why the International Criminal Court must withdraw Indictments against the Top LRA Leaders: A Legal Perspective .
The importance of the provisions that the ICC's Treaty made for taking into account the perspectives and interests of the victims of the crimes being tried... "Representatives" of victims recently won the right to take part even in pre-trial proceedings in The Hague, and it seems this might actually provide a way for Uganda's civil-society peacemakers to have serious input into whether the case should actually proceed.

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Notes

1. In The Hague, prosecutor Ocampo and ICC judge Navanethem Pillay granted me lengthy interviews (as was ICTY judge Kevin Parker.) In Kampala I interviewed Dr. Morris Ogenga-Latigo, the (ethnic-Acholi) leader of the parliamentary opposition, Moses Draku of the national Amnesty Commission, Moses Chrispus Okello of the research department at the refugee Law Project, Ruth Ochieng of ISIS, and others. Among those I interviewed in Gulu, in northern Uganda, were Andrew Olweny, the chair of the NGO Forum; James Otto, the director of HUman Rights Forum; Anglican Bishop Nelson Onono-Onweng; Ojara Martin Mapenduzi, the Speaker of the Gulu District Council, and Norbert Mao, the Copuncil's Chairperson; Betty Tinu of Women's Voice for Peace; Lieut. Chris Mugeezi, the public-relations officer for the army's northern command; and a mixed-gender group of camp leaders from the Unyama IDP camp. In mid-June 2006, I had interviewed Francis K. Butagira, the Ugandan ambassador to the UN, in New York. The interviews in New York and Kampala were planned and conducted with my colleague and friend Coralie Bryant. Those in Gulu were planned and conducted with great help from local research associate Arthur Owor. I am very grateful to all who helped my project by giving me their time and expertise. ( Return to main text )

Views of Liberia's TRC

Amnesty International has recently published a thought-provoking 80-page report that examines the legislative basis of Liberia's new TRC in light of the country's international human rights obligations. It is titled Liberia: Truth, Justice, and Reparation - Memorandum on the Truth and Reconciliation Commission Act (AI Index: AFR 34/005/2006), and is available here.

Francesca Pizzutelli, the Legal Advisor of Amnesty International, wrote to me recently, "The memorandum is also intended to contribute to the wider debate about the role of human rights law in the establishment and functioning of truth commissions and other transitional justice mechanisms." I am happy to push that debate forward by posting that link to the memorandum here, in the hope that TJF readers can also further enrich to the debate by contributing to the comments board here.

In memo's Introduction, AI's own position is defined as follows:

Amnesty International welcomes the establishment of the Truth and Reconciliation Commission. To overcome its painful and violent recent history, Liberian society must critically face the reality of past violence and violations of human rights. Transition to lasting peace and the rule of law must be based on truth, justice and reparation. The organization hopes that the Commission will be one of the key building blocks in this process of transition, playing an important role in providing a full account of the human rights violations committed during the conflict, contributing to their investigation and eventual prosecution, preventing their repetition, and ensuring that victims and their relatives are granted full reparation.

Later, it notes,

In general references, Amnesty International uses the term "truth commission" in preference to "truth and reconciliation commission". This is because, while some form of reconciliation may be the desired outcome of a truth-telling process over the medium or longer term, that cannot be imposed by either a truth commission or any other body or procedure... In using the term "truth commission", however, Amnesty International notes that, as commissions of inquiry, truth commissions have the task of investigating and publicizing facts, particularly facts which have hitherto been hidden or misrepresented, rather than uncovering the ‘truth’ in an historical or philosophical sense.

As longtime TJF readers might have guessed by now, I for one don't believe that that needs of "reconciliation": can be disposed of so neatly. After all my experience of having lived in and also studied societies plagued by chronic, atrocity-ridden violence, I conclude that the establishment of a sustainable and rights-respecting political order going forward is the most important task that these societies face; and in order to do that, the needs of inter-group reconciliation must be placed in center stage. In the absence of such reconciliation no system of governance can emerge that can provide any guarantee that people's most basic human rights-- including those to life, liberty, and physical security-- will be assured.

The AI authors, by contrast, simply sweep the needs of reconciliation aside in that very cavalier fashion. Instead of recognizing any link at all between reconciliation and the establishment of a rights-respecting order going forward, they focus on other dimensions in which they argue that truth commissions can help atrocity-plagued states to meet their human rights obligations under international law, as follows:

Amnesty International has particularly followed the work of the truth commissions in Chile, Timor-Leste, Ecuador, El Salvador, Guatemala, Haiti, Morocco, Nepal, Nigeria, Peru, Sierra Leone, South Africa, Sri Lanka and Uruguay. On the basis of this experience, the organization considers that truth commissions can help to ensure a state’s compliance with its obligation to respect, protect and fulfil the right of victims of human rights violations to an effective remedy. This obligation includes three elements:

Truth: establish the facts about violations of human rights that occurred in the past;
Justice: investigate past violations and prosecute the suspected perpetrators;
Reparation: provide full reparation to the victims and their families, including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

There is a reference there to the "Basic principles on the right to a remedy and reparation" that were adopted by the UN General Assembly in resolution 60/147 of 16 December 2005. The memo also, soon after, cites something that UN Secretary General Kofi Annan said in March 2003:

]]> "There are times when we are told that justice must be set aside in the interests of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But we have come to understand that the reverse is also true: without justice, there can be no lasting peace".

(That quotation certainly bears further unpacking and examination. In my view, the second sentence is a very important one-- and it is in no way over-ridden or negated by the third one. Just how the interests of "peace" and "justice" are to be reconciled in war- and atrocity-scarred societies is something Annan apparently did not expand on there.)

The AI document tells us that in order to meet those three goals in the fields of truth, justice, and reparation, "societies emerging from a history of crimes under international law and other serious human rights violations should create a long-term strategic action plan, developed and led at the national level." This is excellent as far as it goes. I am fully in favor of the various national "societies" taking and implementing these very serious decisions as much as possible on their own, without having the range of their choices constricted by international bureaucrats, aid donors, or other outside actors. But by speaking about national "societies" rather than national "governments" the document once again, it seems to me, elides the all-important question of how the antecedent political differences within those societies are thought to have been resolved. (Just to reiterate one of my main arguments here: Where there are atrocities on the scale addressed by international law there are nearly always, in the present era, serious concurrent political differences. We are not talking about basically settled societies in which a single small group of sociopaths acts out its sick fantasies. We are talking about societies reeling from deep recent political differences that may or may not have been sustainably resolved at the point that the enactment of transitional justice measures comes under consideration...)

I do not, alas, have time to go through the whole of the AI memo with this same degree of care. I did, however, look at the section it has (secn. III-C) that specifically addresses the question of whether and how the Liberian TRC might set about Promoting community and national reconciliation, and I hope to write more about that section later.

The section starts with a quote from the TRC's Chairman, Councillor Jerome Verdier:

"The focus of the TRC will be on the truth more than on reconciliation. Forgiveness is a very personal individual process. The Commission cannot compel anyone to forgive. What Liberia needs to focus on is finding a way to live together as one people in one country. The TRC can help us to learn to live together – it is a step in the right direction".

The memo then continues thus,

The Liberian TRC Act lists one among of the objectives of the Commission as providing "an opportunity for both victims and perpetrators of human rights violations to share their experiences in order to create a clear picture of the past to facilitate genuine healing and reconciliation" (article IV, section 4(b)). In particular, the TRC is given the function of "helping restore the human dignity of victims and promote reconciliation by providing an opportunity for victims, witnesses, and others to give an account of the violations and abuses suffered and for perpetrators to relate their experiences, in an environment conducive to constructive interchange between victims and perpetrators, giving special attention to the issues of sexual and gender based violence, and most especially to the experiences of children and women during armed conflicts in Liberia" (article VII, section 26(f)). The Act also allows the Commission, "where it deems it necessary", to seek assistance from traditional and religious leaders "to facilitate its public sessions and in resolving local conflicts arising from past violations or abuses or in support of healing and reconciliation" (article VII, section 26(q)).

Some truth commissions, most notably the Truth and Reconciliation Commission in South Africa, have designed their activities, in particular public hearings, to provide victims and perpetrators with a forum for public and private acts of reconciliation. Individual reconciliation between victims and perpetrators was seen as conducive to collective, political reconciliation. Undoubtedly, the establishment of the facts is a precondition for, and can help to promote, individual and collective reconciliation. However, reconciliation, both at the individual and at the collective level, cannot be imposed by either a truth commission or any other official body or procedure.

The memo then cites a 2006 document from the United Nations High Commissioner for Human Rights titled Rule of Law Tools for Post-Conflict States: Truth Commissions (UN Doc. HR/PUB/06/1, 2006) as saying this:

"While some countries have constructed a truth commission around the notion of advancing reconciliation – or have seen such a commission as a tool that would naturally do this – it should not be assumed that such an inquiry will directly result in reconciliation either in the community or in the national or political sphere... Reconciliation is usually a very long and slow process, and the work of a truth commission may be only a part of what is required."

It then proposes AI's own recommendations on this matter:

If the Liberia TRC decides to adopt specific procedures to promote individual reconciliation, such as traditional mechanisms of conflict-resolution, it is essential that they fully respect the rights and dignity of both victims and alleged perpetrators. In particular, victims and their families should not be forced to meet alleged perpetrators or to engage in any act of reconciliation. On the other hand, reconciliation procedures should not be at the expenses of fair trial: they should not involve specific punishment or humiliation of alleged perpetrators.

As I said, I do plan to write more about that portion of the memo later. But in the interest of getting the broader discussion started here as early as possible, for now I will just post this introduction to the topic.