The International Criminal Court in Uganda: Means of Reconstruction Evaluated

The ICC in Uganda

The International Criminal Court in Uganda: Means of Reconstruction Evaluated

Emilie LoGiudice

New College House

Class of 2017

September 25, 2016

Emilie was a joint studies major in Government and Women’s Gender and Sexuality Studies. Graduating summa cum laude, she was elected to Phi Beta Kappa. She studied abroad on the SIT program, Uganda: Post Conflict Transformation, in the Spring 2016 semester, travelling to Gulu, Kitgum, Luwero, Kampala, Jinja, and Mbarara. After graduation, Emilie intends to attend law school to pursue a career in international advocacy and legal reform.

“Ka lyec ariyo tye ka lweny lum ayee deno can”

When two elephants are fighting, it is the grass that suffers.

“Porolok iwii mesa alunga en aye yoo me kelo kuc ki ribe”

Round table talks are the way to bring peace and togetherness

-Acholi Proverbs, Peace and Justice Museum, Kitgum, Uganda

In the following paper, I will argue that the International Criminal Court (hereafter the ICC) as a mechanism for transitional justice is ineffective in the case of Uganda. I will explore questions including but not limited to: What are our mechanisms of international justice; Who created them, who implements them? What are the flaws inherent to the ICC? What are its consequences in Uganda?

To provide some background: during the Spring 2016 semester, I lived in Northern Uganda with the Acholi tribe. I studied their process of reconstruction and reconciliation following the Lord’s Resistance Army Insurgency, officially cited as having occurred between 1986-2006 (Allen 4). In my time there, I was able to speak with former members of the LRA, including a man who willingly joined and a child soldier forced to join, a religious figure who was an integral part of the peace process, and a lawyer who is currently involved in the ICC in Uganda. I will draw on these experiences, in addition to secondary sources, throughout the course of the paper.

The paper will be structured as follows: I will begin by examining transitional justice and the International Criminal Court system, including the controversies surrounding them. I will then turn to Uganda, providing more background on the LRA insurgency and the role of the ICC. Finally, I intend on framing this piece around one controversial ICC case which is relevant to the present era: the case of Dominic Ongwen.

Transitional Justice

Transitional justice is a blanket term used to describe judicial and nonjudicial processes of retribution and reconciliation following a conflict. These can include domestic and international efforts, following domestic and international conflicts. Scholar Bronwyn Anne Leebaw argues that, “transitional justice institutions also aim to counter denial about responsibility for past violence” (Leebaw 107). In effect, they bring accountability to the actions committed throughout the conflict, providing a space for perpetrators and victims to proclaim what they have done, and what has been done to them.

According to Rosemary Nagy, trials and truth commissions are the most prominently employed forms of transitional justice, performed through the ICC, localized organizations, and hybrid courts (Nagy 278). She offers a criticism of these methods, questioning to what, whom, and for what, justice is meant to apply. She believes trials utilize a western definition of violence, and apply this exclusively to non-western countries. She believes transitional justice is executed for the purpose of transitioning a country out of conflict and into democracy on a fixed time scale. And finally, she believes that, though meant to address all forms of violence, trial systems and transitional justice in general neglect structural violence and social injustices (Nagy 284). We will explore this more closely through the International Criminal Court.

The ICC

The International Criminal Court was founded in July 1998, after a series of conferences culminating in Rome. Following this, there was a ratification process necessary to establishing the ICC, and giving it official jurisdiction. This was completed on July 1, 2002, marking the date from which any conflict could be investigated and tried by the court. This also means any conflict occurring before July 2002 is outside the court’s jurisdiction (Allen 1).

According to Bill, a man I interviewed at the ICC, the court is not meant as an alternative to domestic adjudication, but rather as supplementary to it. It’s purpose is to step in as a last resort, when other options have proved futile and justice goes unserved (Bill, Personal Communication February 2016). It is believed that “all national judicial systems have an obligation to investigate and adjudicate the most grievous crimes, because they affect all humanity” (Allen 14). It is at the failure of these that the ICC may investigate, arrest, and put on trial those major actors in a conflict.

But what is meant by “major actors”? According to Bill, no one is immune from this title. Any person or persons who commit atrocities can and should be held accountable to the ICC (Bill, Personal Communication February 2016). Tim Allen explains that the court is meant to work in the interests of justice for the victims, and therefore even sitting leaders, if they have committed violence against those victims, may be tried. So, what’s controversial about an organization meant to bring justice to victims of atrocities?

The ICC was founded through a series of conferences attended by primarily Western countries. In fact, “transitional justice advocacy was once associated with the explicit goal of judgment in the context of democratic change” (Leebaw 106). As Nagy suggests, transitional justice mechanisms were originally conceived to help democratize developing countries at the conclusion of a debilitating conflict. The idea was to rebuild the country in the image of the west: democratically. This alone is enough to question the use of the ICC in a country such as Uganda.

Apart from these intentions, the ICC structure is “steeped in Western Liberalism” (Nagy 275). It is founded on the concept of retributive justice, whereby a trial system is used to isolate the perpetrator and condemn them accordingly. This method is not necessarily in line with the values or justice processes of the countries in which it is being attributed. For instance, in Rwanda and Uganda the most common cultural method of justice involves a reintegration of the perpetrator into the community, and a form of communal accountability, retribution, and forgiveness (David, Personal Communication March 2016).

Finally, as it relates to Westernization, despite being founded on western ideals of justice, and on the western creation of human rights, the ICC is not acting on conflicts in the West. Instead, “the waters are being tested in parts of the world that are politically and economically of little significance for the major powers” (Allen 2). Non-western developing countries are being subjected to the trials of the ICC, while western countries who have been equally involved in conflict zones, are being ignored. Until recently, the only open investigations of the ICC were in Africa (Allen 78).

There also exists imperfections in the jurisdiction of the ICC, apart from the Westernization argument. First, Nagy claims that there are, “geographic zones of impunity being created thanks to the state-centric nature of international law,” whereby violence that occurs outside a recognized state is also outside the jurisdiction of the ICC (Nagy 282). Second, Leebaw writes that, in having victims testify, they are not only willingly and passionately engaged in the reprisal of their perpetrators, but in fact “the experience actually seemed to exacerbate painful or volatile emotions associated with past violence” (Leebaw 114). In this way, victims must relive the atrocities they faced, putting their own mental health at risk. Finally, throughout his interview, Bill listed numerous potential limitations of the ICC, many of which will become relevant in the case of Uganda, including the following: that a trial by the ICC necessarily occurs on an extended timeline, that the ICC cannot try anyone under the age of 18, but also that, at the age of 18, anyone is liable to the court, that the court cannot intervene unless referred to in one of the three ways, that the court must rely on the cooperation of the state they are working in, as they have no other mechanism for enforcement, and finally that, in the case that the conflict is ongoing at the time of investigation, the ICC procedures may place justice and peace at odds (Bill Personal Communication, February 2016).

With that background knowledge of transitional justice, the ICC, and the repercussions of each, let us now turn more specifically to the case of Uganda, to understand better the practical limitations of these processes on the ground.

Uganda: The LRA

Since its inception, the nation of Uganda has been riddled with conflict due to the regular changing of power. Unsurprisingly, the LRA insurgency can be directly connected to this history. With the shift from President Obote to Museveni, Acholi “soldiers from the former national army…fled to the north after being ousted from Kampala by Yoweri Museveni’s NRA/M” (Refugee Law Project 8). Upon return home, the former soldiers had great difficulty reintegrating. Thus, there developed internal division and instability within the tribe (Refugee Law Project 9).

While the government based NRM continued to suppress the Acholi as a whole, failing to recognize the division between former soldiers and civilians, rebel groups comprised of former soldiers capitalized. As native to the Northern region, they were aware of the prevalent divisions, and “attempted to impose internal order upon Acholi society” (Branch 2013, 62). One group in particular, the Holy Spirit Movement, gained popularity.

Alice Lakwena founded her Holy Spirit Movement by claiming to be the bodily host to various Christian spirits who desired a purification of Acholiland. This originally gathered her great civilian support. However, governmental forces were eventually able to defeat the Holy Spirit Movement, forcing Lakwena to flee the country, and opening a power vacuum where her movement once stood (Branch 2013, 66-67).

This vacuum was quickly filled by Joseph Kony. Kony built off of Lakwena’s spirituality, even saying her spirits had moved to him. However, he openly used violence as a mechanism for cleansing the country of non-supporters, including the government forces and civilians deemed “bad Acholis” (Branch 2013, 70). Violence spread and though multiple peace treaties were begun none until the 2006 Juba Peace talks were completed. The government forces regularly failed to attend, or purposefully sabotaged the talks, perpetuating the conflict (Finnstrom 215). Eventually the government began pushing people into camps. If one refused to go they were deemed LRA supporters and were attacked by government forces (Branch 2013, 76). Mass atrocities were committed by the government, led by Museveni, in the name of protection. In this way, around 90% of the people residing in Northern Uganda were displaced (Ministry of Health).

It is important to note the nature of the violence committed over the 20 years of warfare in Northern Uganda. Though historically it seems typical, one rebel group is replaced by another more violent group and fighting erupts against government forces, the atrocities committed leaves it slightly atypical. Kony’s modus operandi, and one of the main reasons this conflict became famous globally, was his use of child soldiers. His soldiers would abduct children from their homes or at school because they were impressionable, and therefore could be made to fit whatever task he deemed (Finnstrom 210). Because of these abductions in the time of conflict, “women and children wear uniforms, carry guns, and participate in the war, which makes them legitimate targets of military violence” (Finnstrom 216). This in part explains the strategy behind civilian violence. That being said, the violence committed against the people of the Acoli tribe, whom Kony himself belonged to, were atrocities. There are instances of severed limbs, massacres, the cutting off of lips and ears, and children who were forced to kill their families, friends, and otherwise (Oscar, Personal Communication February 2016). It is important to note that the violence committed was not only through the LRA. There are claims in the Acoli community that Museveni’s forces frequently dressed as LRA combatants and rampaged the area, so that they could in turn send NRM forces to quell the violence and promote the government. This tactic also worked in justifying Museveni’s ongoing military intervention in the North (Oscar, Personal Communication April 2016). The LRA conflict was not composed only of the expected casualties of war, but was an extremely long conflict with heavy trauma.

The conflict did eventually come to an end with the Juba Peace talks of 2006 in South Sudan. However, as will be discussed in more detail, difficulties arose when LRA leaders, including Kony, refused to directly participate, claiming they feared arrest due to the International Criminal Court warrants. Ultimately these talks were successful, though neither party ever officially signed the agreement. This marks the official end of the conflict.

The ICC in Uganda

Throughout the conflict in Northern Uganda, multiple attempts at transitional justice were made. First, there are the dozens of attempted peace talks, which, as has already been stated, failed for numerous reasons, including governmental sabotage. Next, there was an attempt at amnesty, at which point the Ugandan government promised no repercussions to those willing to leave the bush and end fighting. This was meant as a peace mechanism, with the intent of ceasing hostilities. Ultimately, it is estimated that 26,000 benefitted from this process (Bill, Personal Communication February 2016).