Advocacy, the International Criminal Court and the conflict in Northern Uganda

The role of the International Criminal Court (ICC) in the conflict in Northern Uganda has been controversial from the moment the Chief Prosecutor, Luis Moreno-Ocampo, announced the start of its investigations in January 2004, alongside President Yoweri Museveni. At the time of writing, it remains controversial, as the ICC continues to demand that the five indicted leaders of the Lord’s Resistance Army (LRA) face trial, despite ongoing negotiations towards a peace deal.

As the ICC’s investigation has progressed, agencies that had lobbied for its establishment and its involvement in Northern Uganda have become increasingly uneasy. There have been concerns that the investigation is perceived as biased because it was undertaken at the behest of the Ugandan government, whose army has also been accused of mass human rights abuses; that it has not been conducted openly; and that it endangers vulnerable groups, specifically those interviewees who could be called as witnesses in any trial. More fundamentally, the investigation could set back the prospects for peace, and hence the chances of an improvement in the desperate humanitarian situation in the north.

Humanitarian advocacy and the ICC

Advocacy in favour of the ICC’s involvement in Northern Uganda began to increase in 2003, in response to an expansion of the fighting and a tripling in the displaced population, to around 1.6 million. Later in 2003, following a visit to Northern Uganda, Jan Egeland, the UN Under-Secretary for Humanitarian Affairs, attracted further international attention to the conflict when he stated that ‘I cannot find any other part of the world that is having an emergency on the scale of Uganda that is getting so little international attention’. The failure of a Ugandan army offensive – Operation Iron Fist – against LRA bases in southern Sudan to remove the threat of the LRA, and heightened scrutiny of Museveni’s domestic policies, including his ultimately successful attempt to remove the limits on presidential terms, increased international concern, and probably contributed to Museveni’s decision to refer the situation in Northern Uganda to the ICC.

In December 2004, the Church Mission Society, Christian Aid, Conciliation Resources, Quaker Peace and Social Witness, Tearfund and World Vision UK formed the Northern Uganda Advocacy Partnership for Peace (NUAPP). Because the announcement of arrest warrants was expected in the near future, and because this was expected to have a negative impact on the tentative moves towards peace that were being made at the end of 2004 and the beginning of 2005, it quickly became clear that its main target had to be the ICC. Less clear was what any advocacy efforts towards the ICC should look like. Because the ICC is an independent body, and because the situation in Uganda had been referred to it by the Ugandan government, rather than the UN Security Council – as was the situation in Darfur – it was difficult for UK-based agencies to know how and to whom to voice their concerns. Clearly, the independence of the ICC is vital, so lobbying the British government to influence the Court would not only be ineffective, but also contrary to the desire of these agencies to ensure the ICC’s impartiality.

Direct advocacy with the ICC was difficult because of its understandable reluctance, for reasons of confidentiality and to protect witnesses, to speak about its investigations. A series of meetings took place between religious and traditional leaders from Northern Uganda and officials from the ICC, but it seemed to take the ICC a long time to understand international agencies’ concerns. Following the issuing of the arrest warrants, the ICC seemed to expect agencies to lobby the international community to play a more active role in the execution of the warrants. French Foreign Minister Phillipe Douste-Blazy, during a UN Security Council visit to Uganda, made the remarkable suggestion that NGOs should be asked to ‘cooperate with neighbouring countries to arrest the LRA chiefs’.

Who should act?

The question of who would arrest the five LRA commanders wanted for trial has never adequately been answered, and international agencies have also found it difficult to come up with a solution. This has also made advocacy problematic. Of course, it is not the role of the ICC to arrest those it wants to try. This was not, however, obvious to many in Northern Uganda. In research conducted by the International Center for Transitional Justice and the Human Rights Center, published in July 2005, only 27% of those questioned had heard of the ICC, and of these only 17% knew that it did not have a mandate to arrest individuals it indicted. Therefore, fewer than 5% of those questioned correctly understood the role and capacity of the ICC.

The Ugandan army (the UPDF) was regarded as the most likely to execute the warrants, but this ignored a number of problems. The UPDF had tried and failed for 20 years to arrest these commanders, its increasingly heavy-handed methods (including the use of helicopter gunships, Museveni’s favourite piece of military equipment) had led to the deaths of many civilians and children, and its participation would increase perceptions that the investigation was biased. The armies of the Democratic Republic of Congo (DRC) and southern Sudan were also proposed, but lacked the necessary capacity and, in Sudan’s case, the necessary motivation. Scepticism greeted the announcement in December 2005 that the ICC had signed a Memorandum of Understanding with the Sudanese government, under which Khartoum agreed to cooperate in the arrest of LRA commanders based in southern Sudan. The final candidates were the UN peacekeeping forces in DRC (MONUC) and southern Sudan (UNMIS), but the former was preoccupied with ensuring peaceful elections in the DRC in June 2006, and the latter was taken up with the implementation of the peace agreement in southern Sudan.

International advocacy efforts culminated in the adoption of UN Security Council Resolutions 1653 and 1663, and a report in July 2006 recommended ways in which the UN ‘could more effectively address the problem of the LRA’. While international agencies should be congratulated for their efforts in getting these resolutions passed, they were unable to propose any more comprehensive solutions to the problem of how to arrest the LRA commanders than those already suggested.

Questions of justice

Another area in which alternative solutions proved difficult concerned whether the ICC was acting ‘in the interests of justice’ – a phrase repeated frequently in the ICC’s statutes. International agencies have often found themselves in dispute (including amongst themselves) about whether the Acholi possess a special form of justice, based more on reconciliation and healing, and whether this is being ignored by the ICC in favour of a more punitive model, based on ‘Western’ concepts. The difficulties of conducting research into this, the impossibility of knowing whether traditional forms of justice can be applicable to the crimes committed during the conflict, and the vested interests on both sides of the debate mean that there is no easy solution to this question.

An integrated approach?

There is greater consensus that the ICC investigation should be seen as merely one element in securing a just, peaceful and sustainable solution to the conflict, and should, therefore, be integrated more closely with other mechanisms that have this aim. Such mechanisms include amnesties (particularly for those rebel fighters who were abducted by the LRA), a ‘truth and healing’ process (which would examine the conflict in its political and historical context) and negotiations towards a ceasefire, an end to the displacement that has devastated Northern Uganda and, eventually, peace talks.

Some analysts have dismissed this argument; Tim Allen, in his book Trial Justice: The International Criminal Court and the Lord’s Resistance Army, states that ‘in setting up the ICC there was never the intention to bring justice in a broad sense’, and that ‘international criminal law [should not] have to engage with [local justice] in a serious way’. However, whilst this may be true for the ICC as an entity, surely it should see itself as one of several elements of the solution. In June 2005, the ICC stated that its investigation in Darfur ‘will form part of a collective effort, complementing African Union and other initiatives to end the violence in Darfur and promote justice’. Notwithstanding the enormous difficulties in achieving this in Darfur (and for that matter in the DRC), this statement gives some hope that the ICC investigations in these cases may avoid some of the controversies and uncertainties of the investigation in Uganda.

Advocacy concerning the ICC will remain difficult, but its aim should be that these investigations will not just seek to ensure the prosecution of those most responsible for the crimes committed in these conflicts, but should also contribute to a just, peaceful and sustainable end to the conflicts themselves. Those suffering in the displacement camps and villages of Northern Uganda, Darfur and eastern DRC deserve nothing less.

Tim Raby works for Tearfund. Between May 2004 and June 2006 he worked as Tearfund’s Disaster Management Officer for Northern Uganda. Between December 2004 and June 2006, he was also the Chair of the Northern Uganda Advocacy Partnership for Peace. He writes in a personal capacity.