Global Policy Forum

By Anthony Dworkin

On February 19, the government of Uganda and the Lord's Resistance Army rebel group announced they had reached agreement on a system of war crimes trials and other methods of accountability for atrocities committed during the country's long-running civil war. Both sides hailed the agreement as a significant breakthrough that removed a major obstacle to a final end to the conflict. The accord is also a significant development in the evolving debate over the role of the International Criminal Court in Uganda: the Court has issued arrest warrants against the leaders of the LRA, and the LRA has said that any peace agreement is conditional on an agreement from the Ugandan government that rebel leaders will not face trial before an international court.

The war in northern Uganda began in 1986 and has been marked by the LRA's well-documented brutality against civilians, including the seizure of children to be used as fighters and sex slaves, and the widespread use of mutilation, cutting off the lips, ears, noses and limbs of victims. The violence has led to nearly two million people being displaced from their homes and being forced to live in refugee camps. Human rights groups have also reported war crimes by the government army, the Ugandan People's Defense Forces.

The Ugandan president, Yoweri Museveni, referred the situation in northern Uganda to the International Criminal Court in December 2003. Two years later, the Court issued arrest warrants against the LRA leader Joseph Kony and four of his top commanders--the first warrants issued by the recently-established Court. In 2006, peace talks between the LRA and the government began in Juba, in South Sudan, and the ICC quickly became a central part of the negotiations. Rebel leaders insisted that they would not sign an agreement unless the risk of prosecution before the ICC was removed.

The newly-concluded war crimes agreement takes the form of an annex to an earlier accord between Uganda and the LRA setting out a general framework for accountability and reconciliation. Under the agreement, the government will set up a special division of the High Court of Uganda to try "individuals who are alleged to have committed serious crimes during the conflict." The agreement also says that prosecutions "shall focus on individuals alleged to have planned or carried out widespread, systematic or serious attacks directed against civilians, or who are alleged to have committed grave breaches of the Geneva Conventions"--a form of words evidently intended to track the categories of crimes against humanity or the most serious war crimes (but which is also somewhat anomalous, given that the category of grave breaches is generally thought to apply only to international armed conflict, not to civil wars like that in northern Uganda).

At the same time, alongside the special war crimes division of the High Court, the agreement also gives a prominent place to traditional justice. It says that the government "shall, in consultation with relevant interlocutors, examine the practice of traditional justice mechanisms in affected areas, with a view to identifying the most appropriate roles for such mechanisms." A government official, Ruth Nankabirwa, who is chairperson of the Peace Talks Support Committee, suggested the traditional justice system would deal with "small crimes" but the precise division between crimes that will be handled by the war crimes court and by traditional justice is not explicitly spelled out in the accord. In addition, the accord sets up a truth commision body, and mandates some form of reparations for victims of the conflict.

Where does this agreement on a domestic system of accountability leave the International Criminal Court? The accord does not contain any explicit statement regarding the government's policy on the ICC arrest warrants, but there are a number of signs that the Ugandan government intends to argue that an international prosecution is no longer necessary or appropriate. The new agreement does contain, in its preamble, a reference to "the requirements of the Rome Statute of the International Criminal Court and in particular the principle of complementarity"--a suggestive formulation, since complementarity is the principle that the ICC should defer to domestic prosecutions where possible.

In addition, Ms. Nankabirwa suggested that the agreement with the LRA meant that a prosecution before the ICC was no longer necessary: "First of all it is Uganda which approached the ICC to help in getting Kony and his commanders because Uganda could not reach Kony because he was outside Uganda's jurisdiction. We are hoping that if Kony and his commanders decided to be subjected to DDR, demobilization, disarmament, and then reintegrate, that would mean that they would come out of the bush and come to Uganda, and then Uganda will now be in the position to get them. And we will have no problem in subjecting them through our judicial system. [The] ICC was created to fight impunity, and therefore the High Court of Uganda can exactly do that."

But once a case has been referred to the ICC by a country, that country does not have the power to take back the referral. Instead, the statute of the ICC assigns to the Court the power to decide on whether an investigation or prosecution should be continued. Under the "complementarity" provision, the Court cannot try a case which "is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." The statute allows either the defendants, or the state which would have jurisdiction, to challenge the admissibility of a case before the ICC--i.e. to argue that a genuine attempt to investigate and prosecute is underway within the country concerned. Uganda could therefore challenge the admissibility of the cases, but it would remain up to the ICC to decide whether the war crimes process underway in the country met the threshold of a genuine effort, as specified in the statute.

Since the Ugandan war crimes process exists only on paper, it is far too early to suggest that the cases before the ICC should now be dropped. For his part, the Court's prosecutor, Luis Moreno-Ocampo said in a message to Reuters that his office "is very confident that the case for which warrants have been granted remains admissible." The prosecutor's office also said in a statement that it "is not a party to the peace process...The arrest warrants against the LRA commanders were issued by the court and remain in effect."

Ultimately, if a credible war crimes court is established in Uganda, the ICC may decide to declare the case inadmissible. As the process develops, we can expect an increasing debate about the validity of the Ugandan system and the respective merits of domestic and international justice. The Ugandan case may be shaping up as an important test of how the complementarity rules are applied in practice. Already some commentators have argued that domestic trials are unlikely to be credible, while other organizations like Human Rights Watch (which said the agreement could be "a major step toward peace and justice for northern Uganda" if properly implemented) have been more positive.

If the ICC does not defer to the Ugandan war crimes system by declaring the cases inadmissible, then Uganda will be obliged to hand the suspects over for trial in The Hague. Of course, it is possible that Uganda would simply ignore this obligation, or claim that it is unable to gain custody over the suspects (for instance if they remain outside Ugandan territory). But it seems unlikely that Uganda would want to ignore the arrest warrants, since the country has so far tried to position itself as a major supporter of the ICC (most notably, it has made a bid to host the Assembly of States Parties review meeting in 2010) and that effort would be undermined if it simply refused to act on its obligations to the Court.

Already the agreement between the LRA and Uganda shows that the interplay between international justice and peace negotiations can be more complex than is sometimes recognised. As the peace negotiations got underway, there were calls to drop the ICC indictments on the grounds that they would prevent a successful outcome for the talks. Instead, it appears that the threat of international prosecutions has acted as a spur to put in place a domestic alternative; as that alternative takes shape, the continuing engagement of the ICC may keep up the pressure for the domestic war crimes process to be a genuine one.