Global Policy Forum

The International Criminal Court's Impossible Test Case

By André-Michel Essoungou*

Africa hosted the first investigations of the International Criminal Court in 2002 and there have been actions in the Democratic Republic of the Congo, Uganda, Darfur and the Central African Republic. But Uganda poses a special challenge for the ICC.

Jan Egeland, the United Nations under-secretary-general for humanitarian affairs, had difficulty believing what he heard from refugees in the north of Uganda in September 2006. "We don't want the International Criminal Court (ICC). We want peace," insisted the head of a camp for 25,000 displaced people. "But you want justice to be done," Egeland asked. "Of course, but how will the trial of five people bring us back those we have lost? Will the ICC really bring peace, or fuel the war again?"

The rebellion by the Lord's Resistance Army (LRA) is part of the oldest conflict in Africa, a conflict that has defied some 40 mediation attempts. The Ugandan authorities invited the ICC to intervene at the end of 2003, to investigate atrocities committed by the LRA in the north of the country. The court has since accused five LRA commanders of war crimes and crimes against humanity (1). Yet, despite tens of thousands of deaths over the past 20 years, the ICC's presence in Uganda is controversial. There are some, including the victims, who feel that ICC prosecutions will hinder the peace negotiations that started in July 2006 between the rebels and Kampala.

Uganda is a test case for the ICC, based at The Hague, which held its first hearings in 2002 and has yet to make its mark. Its first international trial, now under way, is of Thomas Lubanga from the Democratic Republic of the Congo. Although the Uganda case dates back further, progress has been slow, mostly because of the incomprehension the ICC has encountered on the ground (2).

The ICC has set up office in the Ugandan capital, Kampala, with a minimum of fuss. The small team occupies cupboard-sized premises almost impossible for visitors to track down; journalists email their enquiries and are answered with promises of a reply in the next few days. The court's first and unenviable task has been to explain its mission to the local and international organisations working in the north of Uganda. Wherever it went, it encountered doubts and criticism.

Over the past few months there has been serious controversy in Kampala and in neighbouring Sudan, which hosted the first peace talks in the summer of 2006 (3). In October 2006, after the talks, Vincent Otti, second-in-command of the LRA, announced that despite the progress made in Juba in southern Sudan (4), there could be no overall agreement unless the ICC abandoned its prosecutions (5). He added that the rebels would prefer to be tried in Uganda, if there ever was a trial.

Well-timed threat

The threat was well timed, for a peace agreement had never seemed so close since the beginning of the conflict in 1986 (6). Kampala is divided in response to this blackmail. Voices in President Yoweri Museveni's entourage have called for the ICC to withdraw, and this has been echoed by organisations in the north of Uganda such as the Acholi Religious Leaders' Peace Initiative, and by Save the Children. The calls reflect the urgency for some of an end to hostilities before all else.

But the ICC has insisted on its prosecutions, and Kampala has had to take a public position. In October 2006 the Ugandan authorities wrote to the ICC prosecutor, Luis Moreno-Ocampo, confirming their interest in pursuing proceedings against the rebels (7).

Among all the rumours and official communiques people on both sides of the conflict are trying to use the ICC's presence to lever advantage. This was already the case on the government side before the peace talks; having invited the ICC to Uganda in December 2003, the government first broke the news of the decision to prosecute the five rebel commanders in 2004. It was announced to the local press even though the prosecutions were supposed to be secret. The leak effectively ensured that the power of the court could be used as a threat against the rebels.

In December 2004 the ICC prosecutor and the Ugandan president provided a press conference in London with details of the prosecutions. The government, having achieved little in military terms, was interested in appearing with a new ally. Ugandan officials were counting on the might of their new partner to swing the balance in any new negotiations with the LRA. In 2005, when early contacts with the rebels were going well, the government negotiator, Betty Bigombe, who had been a minister under Museveni, announced that if the LRA put down its arms the authorities would ask the ICC to abandon the prosecutions. Ever since, as the mood takes him, Museveni has alternated between threats to call in the ICC and promises to arrange for the cases to be closed.

A source close to Museveni has confirmed the ploy: "If the LRA accepted the overall peace agreement, we would arrange things with the ICC. We have good reasons to ensure that the ICC drop its prosecutions, and we will." The ICC seems at a loss. At best it has been trapped, at worst it is being used. It is as if the authorities have commandeered its services in Kampala while the rebels in the north hold it responsible for the breakdown in negotiations. By insisting on pursuing its prosecutions the ICC is affirming its independence, but it has become a target for manipulation by both the government and the rebels.

We may well see a peace agreement in the next few weeks, in exchange for an official request to abandon the prosecutions. The request would be hard to refuse, given the court's implication in the political situation. If the court were to insist on pursuing the judicial process, it would run the risk of prolonging the conflict.

Uganda is committed to cooperating with the court (being one of the states that has ratified its founding treaty) and any request to drop the prosecutions could be poorly regarded under international law. The UN organisations and the major powers would still turn a blind eye, given the political and humanitarian circumstances.

The ICC's own statute could offer Uganda the strategy it may need to defend its position. Unlike the other international tribunals (for former Yugoslavia, or for Rwanda), the ICC cedes jurisdiction to the national judiciary of the states concerned. It cannot intervene if the state itself engages genuine criminal proceedings against an offender, although the criteria for "genuine" have not been defined. The ICC may only step in if a state fails to take action, deliberately or not. The 104 states that have ratified its statute must provide the ICC with assistance -- information or the handover of suspects.

The Ugandan case is important for the ICC's image: the court is in its infancy and its experience in Uganda will determine its development. Despite its founders' intentions, it seems to be facing the same problems as its predecessors: in its desire to do justice, it will have to come to terms with the complexities of its political and diplomatic environment. Meanwhile, in the camps in northern Uganda, there are huge numbers of refugees who would find it hard to understand why they are being made to suffer for so long.

About the Author: André-Michel Essoungou is a journalist in Kampala and the author of 'Justice í  Arusha' (L'Harmattan, Paris, 2006)

(1) ICC charges against Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ogwen include abduction, rape, torture and massacre.

(2) See "International Criminal Court: Situations and cases".

(3) On 10 January 2007 in Juba, south Sudan, President Omar al-Bashir announced that "the LRA are no longer welcome in Sudan". The rebels were no longer prepared to continue the peace talks in Sudan. Their absence led to a suspension of discussions and they have called for a change of location for the negotiations.

(4) The rebels and the government signed an agreement to cease hostilities on 26 August 2006. It provided for a regrouping of the rebels in southern Sudan. It was renewed in December 2006 and expired at the end of February 2007. (5) "Kony rebels refuse to sign peace deal", Daily Monitor, Kampala, 10 October 2006. See also: Tim Allen, Trial Justice, Zed Books, London, 2006.

(6) See Charles Villa-Vicencio, Paul Nantulya, Tyrone Savage, Building Nations, Institute for Justice and Reconciliation, Cape Town 2005.

(7) "Uganda: LRA warrants to stay", New Vision, Kampala, 26 September 2006.

Translated by Robert Corner