Global Policy Forum

By Noah Weisbord*

Luis Moreno-Ocampo, the first prosecutor of the International Criminal Court, is confronted with a dilemma that has bedeviled many an international tribunal: Which is more important, peace or justice? For 18 years, the Ugandan government has been fighting a brutal war in the north against the insurgent Lord's Resistance Army. Should Moreno-Ocampo indict LRA leaders for crimes against humanity even though this may undermine fragile peace negotiations between the Ugandan government and the LRA?

The International Crisis Group estimates that since 2002, the LRA has abducted more than 20,000 children and forced them into slavery, battle or sexual servility. The rebels have killed, mutilated or raped tens of thousands of civilians. Human rights groups, including Human Rights Watch, have also documented serious abuses by Ugandan government forces. The struggle has driven 1.5 million people from their homes in northern Uganda.

LRA violence is planned and orchestrated by Joseph Kony, who indoctrinates his forces - 80 to 90 percent of them abducted children - using terror and an ideology blending Christianity, Islam and the occult. But looting is his main preoccupation. Every attempt to negotiate peace with the LRA since its creation in 1986 has failed, giving Kony time to regroup, rearm and resume his atrocities. With the recent termination of LRA aid from Sudan, a massive Ugandan military offensive against the rebels and a domestic amnesty law meant to induce fighters to surrender, the LRA has once again approached the negotiating table.

As fighters slowly trickle out of the bush, President Yoweri Museveni of Uganda has referred the conflict to the International Criminal Court. So in spite of the amnesty and the negotiations, Moreno-Ocampo now has a legal duty to prosecute crimes against humanity committed in northern Uganda. Under exceptional circumstances, however, the ICC statute permits the prosecutor to postpone an investigation "in the interest of justice." Because the ICC is new, there is no body of precedent on what could justify the suspension of an investigation. Moreno-Ocampo's decision about northern Uganda will be the first attempt by an ICC prosecutor to balance peace and justice in the context of an ongoing conflict involving grave international crimes.

The prosecutor is faced with a historic dilemma. Influential community leaders in northern Uganda are urging him to call off the investigation, while important human rights groups, including Amnesty International, are demanding that he proceed. The same peace-versus-justice conundrum could materialize in Sudan if perpetrators of the horrors in Darfur try to bargain for impunity. Opponents of prosecution in northern Uganda argue that Moreno-Ocampo should give peace a chance, that it is more important to save civilians than to judge perpetrators. Though previous negotiations with the LRA have failed, the opponents of prosecution further claim that this time is different. Moreover, withdrawal by the ICC would not mean the end of accountability, they argue, but the beginning of indigenous justice processes.

Proponents of prosecution argue that individuals who commit crimes against humanity should be punished for the sake of justice. Richard Goldstone, former prosecutor for the UN tribunals for Rwanda and the former Yugoslavia, says that it is a prosecutor's function to prosecute, not meddle in politics. Proponents say that it would be unprincipled - as well a dangerous message worldwide - for the prosecutor to submit to the demands of armed thugs who have been maiming, raping and killing with impunity.

In northern Uganda, I believe that the proponents of prosecution are right. Beyond their principled arguments for justice, there are also pragmatic reasons to proceed. The history of failed negotiations is one indication that a deal with the LRA does not necessarily mean an end to the conflict. After 18 years, without a coherent political agenda beyond looting and raping, LRA commanders have little incentive to pack it in and settle down, with or without amnesty. Because of the ICC's focus on the leadership rather than foot soldiers, ICC indictments may, in fact, encourage more of the rank and file to surrender. Also, removing extremist leaders from the bargaining table through criminal indictments can clear the way for more moderate negotiating partners. For both principled and pragmatic reasons, the interests of justice and also the interests of peace require Moreno-Ocampo to proceed with the arrest warrants.

About the Author: Noah Weisbord is writing a doctoral dissertation at Harvard Law School on the crime of aggression.