Trial Justice

The International Criminal Court and the Lord's Resistance Army

By Tim Allen

Zed Books Ltd

Copyright © 2006 Tim Allen
All rights reserved.
ISBN: 978-1-84277-737-4

Contents

Illustrations, ix,
Acronyms, xi,
Preface, xiii,
Districts of northern Uganda affected by the LRA, xviii-ixx,
1 Introduction: ending impunity, 1,
2 The coming of the Lord's Resistance Army, 25,
3 Displacement and abduction, 53,
4 Amnesty, peace talks and prosecution, 72,
5 Concerns about the court, 96,
6 Justice and healing, 128,
7 Conclusion: a learning process, 169,
8 Postscript: the warrants, 182,
Notes, 196,
Bibliography, 218,
Index, 223,

CHAPTER 1

Introduction: ending impunity

In December 2003 President Yoweri Museveni of Uganda asked the prosecutor of the International Criminal Court (ICC) to investigate 'the situation concerning the Lord's Resistance Army'. The LRA have been waging war in the north of the country since the mid-1980s. Most of those caught up in the conflict have been from the Acholi population of Gulu, Kitgum and Pader districts, but neighbouring areas of Lira, Apac, Adjumani, Kumi and Soroti districts, where the people are predominantly Langi, Madi and Teso, have also been affected. Abductions, including the kidnapping of children, have been common, and hundreds of people had been compelled to kill and maim or be killed and maimed themselves. Victims have had lips, hands and fingers cut off. Some have been forced to slaughter their own parents, or drink the blood of those they have murdered. Several massacres of civilians have occurred, and hundreds of thousands of people are living in displacement camps, where conditions are often appalling. The scale of suffering is immense, and there is no doubt that crimes have been perpetrated that fall within the jurisdiction of the court.

The ICC is a new institution, and the legal process in northern Uganda was to be its first big case. The decision to establish it had been taken in July 1998, when 121 of the 148 states represented at a conference in Rome agreed to accept the text of the proposed statute. The vote followed five weeks of intense and sometimes acrimonious discussion, and many years of lobbying by humanitarian agencies and human rights activists.

Inevitably, the statute is full of compromises and several parts of it show signs of haste. The awkward mixed metaphor at the start of the preamble is just one of many examples. It tells us that 'all peoples are united by common bonds, their cultures pieced together in a shared heritage', and expresses concern that 'this delicate mosaic may be shattered at any time'. But other parts of the document move beyond empty rhetoric, and make clear and unequivocal statements. In so doing they assert a commitment to invigorate international law and move it in a new direction. States signing the Rome Treaty affirmed 'that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation'. They were determined 'to put an end to impunity for the perpetrators of those crimes', and were resolved 'to guarantee lasting respect for the enforcement of international justice'. Much to the surprise of sceptics, who thought this was just one more example of end-of-millennium wishful thinking, the sixty ratifications of the Rome Treaty that were needed to bring the statute into force were accumulated within four years. As a consequence the jurisdiction of the ICC came into effect on 1 July 2002.

Quite what this means in practice is yet to be established. The implications of setting up the court may be far reaching, or its role may be circumscribed by US antipathy and the reluctance of those states that have ratified the Rome Statute (i.e. 'State Parties') to act effectively on its behalf. Perhaps not surprisingly, the waters are being tested in parts of the world that are politically and economically of limited significance for the major powers. All the ICC's ongoing investigations are in central Africa. The referral by the government of Uganda was followed by state party referrals from the governments of the Democratic Republic of the Congo in April 2004 and the Central African Republic in January 2005. Then, in March 2005, alleged crimes committed in the Darfur region of Sudan were referred by the UN Security Council. This new case is hugely significant for the ICC, but at the time of writing in mid-2005 the investigation and preparation of warrants are at a relatively early stage. Up to now, the Ugandan case has been the most important, and also the most controversial.

That atrocities have happened in northern Uganda is well established, even if the war between the Ugandan government and the LRA has rarely been covered in the international media. Indeed, the United Nations Children's Fund (UNICEF) had suggested that events in Uganda would be an ideal case for the ICC back in 1998. In the months immediately after the referral, further gruesome killings occurred, including one of the worst individual incidents of the war when some two hundred unarmed people were massacred at Barlonya camp on 21 February 2004. Photographs taken the morning after another incident at Pagak in May show the bodies of women and children. They are lying, quite neatly, in the grass next to each other where they were killed. Each has its skull smashed, including the babies, who are still wrapped in their shawls on their mothers' backs.

Expectations that such events would lead to relatively straightforward prosecutions and convictions were, however, soon found to be misplaced. The complexities on the ground clearly took the ICC by surprise. It has found itself on a steep learning curve, dealing with intense local as well as international opposition. Fundamental issues have been raised about what justice means in an African war zone and about how political order can be established. Among other things, a commitment to ending impunity sets limits to what can be offered in peace agreements. In August 2005, a year after the Office of the Prosecutor began formal investigations, warrants have been prepared but not publicly issued (NB: it subsequently became known that sealed warrants had been issued in July 2005 – see Postscript). The court has had to bide its time, waiting for the right moment – and for key donors to give the go-ahead for it to act. Nevertheless, the capacities and status of the ICC have been rising. It has become a key factor in the ongoing negotiations, and has positioned itself to have a pivotal role both here and north of the border in Sudan.

This book is about what happened when international criminal justice was introduced to northern Uganda. It interrogates myths and misunderstandings, and explains why the ICC intervention has not proceeded as initially planned. It also shows why recent developments in Uganda may have far-reaching effects. But first, it is necessary to provide some background information about developments in international criminal justice.

International law and the most serious crimes

For some political analysts, international law does not really exist. The term is commonly used to refer to a body of rules laid out in agreements between states. These rules have a rhetorical significance in diplomacy, but they are not impartially applied and may at times be ignored by a government if they are not considered to be...