Global Policy Forum

By Patrick Corrigan

Despite offering credible prospects for peace following twenty-one years of conflict in northern Uganda, the Juba peace negotiations are threatened by the possibility that the International Criminal Court (ICC) will not defer to local Ugandan mechanisms which are suitable for addressing issues of accountability. The ICC was created in part to contribute to the prevention of human rights abuses, but its failure to accommodate the peace talks might ironically contribute to moving Lord's Resistance Army (LRA) rebels back into open conflict and reigniting the humanitarian catastrophe in northern Uganda.

The LRA has threatened a return to active fighting unless ICC arrest warrants for the top four LRA leaders are revoked. If the ICC will take the unprecedented-but very possible and legal-action of foregoing its warrants in favor of the new local option, it is more likely than ever that mediators will succeed in creating a comprehensive peace agreement. The old dilemma of applying international law during ongoing conflicts is that entrenched rebel leaders are reluctant to end campaigns of violence without some guarantees for their own personal safety, usually in the form of amnesties. The result is that the enforcement of international law often contributes to instability and increased attacks without providing any security for the victimized population.

The international debate on the ICC in Uganda has focused on this so-called "peace versus justice" dilemma which evaluates the trade-off between attempts to negotiate an end to ongoing conflicts and efforts to hold criminals accountable through international law. The terms "peace" and "justice" are misleading and easily manipulated because "justice" is a broader concept than criminal trials in an international courtroom, and "peace" is more comprehensive than silencing guns. The tension exposed in Uganda is rather between emerging norms of accountability through international law and civilian protection. With a peace deal nearly in place that is dependent upon the exclusion of the ICC from the process, attempts by the ICC to prosecute war criminals has run up against the responsibility of the Ugandan government to provide security for its people by ending the violence through peace negotiations.

Because immediate civilian protection has the concrete result of saving thousands of lives, the "Responsibility to Protect" civilians should be considered a more fundamental norm than that of accountability through international law. The latter only holds a theoretical possibility of saving a nebulous group of people through deterrence. Fortunately, the agreement signed by negotiators in Uganda incorporates the most essential elements of both accountability and civilian protection, even if the proposed process does not include the ICC.

Deferring to Ugandan accountability mechanisms is not a breach of international law on the part of the ICC. The Rome Statute, the legal document that created and governs the ICC, grants the Prosecutor the ability to withdraw ICC investigations in the event that they do not serve "the interests of justice" or that the domestic government proves willing and able to hold alleged criminals accountable under the principle of Complementarity. Though accountability will occur outside of an international courtroom, it will nevertheless advance the goals of the ICC by acknowledging the rule of law and by combating impunity for LRA leaders. It is no wonder that the ICC is experiencing difficulty in finding a judicial solution in northern Uganda because there was never really a judicial problem. In facilitating an expeditious end to the conflict and taking steps to eliminate impunity, the recently proposed agreement on accountability and reconciliation will save the most lives in both the short and long-term. The ICC prosecutor must now make the right decision and seize the moment for long-delayed peace and justice in northern Uganda.