Global Policy Forum

An agreement to prosecute alleged war criminals in Uganda rather than in the International Criminal Court (ICC) has fuelled hopes for an imminent end to the long-running civil war, even if one leading rights group has condemned the deal.

Delegates from the Ugandan government and the Lord's Resistance Army (LRA) agreed on 19 February that a special division of the country's high court be set up to try war crimes committed during the 21-year-old conflict. The deal was reached in the Southern Sudanese capital, Juba, where the two sides have been negotiating a peace deal for the past 18 months. The Ugandan government has insisted a comprehensive treaty must be reached by the end of February 2008, failing which it could resume hostilities. Key to the talks are justice and reconciliation, an issue complicated by war crimes indictments issued in 2005 by the ICC against LRA leader Joseph Kony and other senior members of the rebel group.

The rebels have repeatedly called for these indictments to be dropped, echoed by civil society groups in northern Uganda, which feared they would deter the LRA from signing a comprehensive peace agreement. The latest agreement "is a splendid achievement for the talks. It is a great turnaround that we have managed to have an alternative to the International Criminal Court indictments against some of the fighters," James Obita, one of the rebel negotiators, told IRIN by telephone from Juba. The deal "will please the fighters who had said they would not leave their bush hide-out unless the indictments by the ICC had been withdrawn", he added.

And the head of the LRA delegation to the talks, David Matsanga, told IRIN: "If things don't work out as we expect, we will proceed with our plans to send our legal team to meet the UN Secretary-General and the ICC to ensure the warrant of arrest is dropped before we sign the [final] peace deal." The Ugandan government also welcomed the agreement, even though the ICC indictments followed its approaches to the court. "This is a big success, we will now move to the next item, which is about a permanent ceasefire and probably we will be able to conclude the talks very soon," said Captain Chris Magezi, spokesman for the government delegation in Juba. As part of the agreement, a special investigations unit will be set up in Kampala under the authority of the director of public prosecutions. The deal also calls for a truth commission, reparations for victims of the conflict and traditional justice mechanisms to be used for lesser crimes.

Mixed reactions

International rights and advocacy groups were divided in their reaction. Human Rights Watch (HRW) called it "a major step" but warned that Uganda's justice system would need to be "improved" to ensure trials met international standards. "Today's agreement could be a major step toward peace and justice for northern Uganda, but the true test lies in how the agreement is put into practice," Richard Dicker, HRW's international justice programme director, said in a statement. If the ICC deems that Ugandan courts are up to the task of trying Kony and others, then its own statutes would recommend the international indictments be dropped.

A sceptical Amnesty International (AI) took a much tougher line. "At the moment, we have no evidence to suggest that even a new court established in Uganda to deal with these cases would be able and willing to do so in fair proceedings that are not a sham," Christopher Keith Hall, senior legal adviser in AI's International Justice Project, said in a statement. "There won't be long-lasting peace in northern Uganda unless those responsible for war crimes are brought to justice," Hall told IRIN by telephone, adding that failure to deliver indicted LRA leaders to the ICC in The Hague "would set a terrible precedent" for similar situations in other conflict areas. Kony and the others charged should be handed over immediately to the ICC, according to AI. Only when they were in custody should the tribunal decide whether Uganda was able handle the cases.

There is a major practical obstacle to implementing AI's injunction: arresting Kony. He and other LRA leaders are based in northeastern Democratic Republic of Congo's Garamba forest, well beyond the reach of Ugandan authorities. Hall pointed out, however, that one of the UN's largest military missions, MONUC, is based in the DRC and had the capability to arrest the LRA leaders. He also noted that the DRC government had pledged not to give sanctuary to the rebel group.

Peace versus justice?

Refugees International, an advocacy organisation, noted in a 19 February report, Uganda: Challenges of Peace and Justice, that the ICC indictments were partially responsible for bringing the LRA to the negotiating table in the first place and for ensuring the talks included discussions of justice and accountability. But the report went on to warn that the latest Juba deal would be unlikely to lead the ICC to drop its indictments and that "the LRA leadership would in turn find such a continuing threat of arrest and imprisonment untenable, and [so] the prospects for peace in northern Uganda would wane".

Ways forward that "need not involve a zero-sum trade-off of justice for peace" lie in the ICC's own statute, according to Refugees International. Article 16 of the Rome Statute, for example, allows the UN Security Council to override the ICC prosecutor and defer a prosecution for renewable year-long periods during which "alternative accountability options could be developed further or more permanent security arrangements for the LRA leadership could be made". Under the Complementarity article of the Rome Statute, the ICC could recognise the legitimacy of alternative sanctions within Uganda, such as "reparations, exile, public apologies, or mandatory participation in a truth commission or traditional justice mechanisms".

The ICC prosecutor can also rule a case inadmissible if he decides that going ahead with a prosecution is not in the interests of justice. The Refugees International report concluded that the tribunal is in danger of biting off more than it can chew. "The enforcement challenges presented by the Uganda case suggest that expectations of what the ICC can achieve in its early stages may be too high," it stated. "Insisting on unrealistic outcomes causes the victims to pay unacceptably for the challenges the international justice system currently faces. Instead, the international community should explore ways to strengthen the ICC's enforcement capacity in ways that minimise the risks to stability and to drawing out protracted humanitarian crises," it added.