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Trial Justice
The International Criminal Court and the Lord's Resistance Army
By Tim Allen Zed Books Ltd
Copyright © 2006 Tim Allen
All rights reserved.
ISBN: 978-1-84813-171-2
CHAPTER 1
Introduction: ending impunity
In December 2003 President Yoweri Museveni of Uganda asked the prosecutor of the International Criminal Court (ICC) to investigate 'the situation concerning the Lord's Resistance Army'. The LRA have been waging war in the north of the country since the mid-1980s. Most of those caught up in the conflict have been from the Acholi population of Gulu, Kitgum and Pader districts, but neighbouring areas of Lira, Apac, Adjumani, Kumi and Soroti districts, where the people are predominantly Langi, Madi and Teso, have also been affected. Abductions, including the kidnapping of children, have been common, and hundreds of people had been compelled to kill and maim or be killed and maimed themselves. Victims have had lips, hands and fingers cut off. Some have been forced to slaughter their own parents, or drink the blood of those they have murdered. Several massacres of civilians have occurred, and hundreds of thousands of people are living in displacement camps, where conditions are often appalling. The scale of suffering is immense, and there is no doubt that crimes have been perpetrated that fall within the jurisdiction of the court.
The ICC is a new institution, and the legal process in northern Uganda was to be its first big case. The decision to establish it had been taken in July 1998, when 121 of the 148 states represented at a conference in Rome agreed to accept the text of the proposed statute. The vote followed five weeks of intense and sometimes acrimonious discussion, and many years of lobbying by humanitarian agencies and human rights activists.
Inevitably, the statute is full of compromises and several parts of it show signs of haste. The awkward mixed metaphor at the start of the preamble is just one of many examples. It tells us that 'all peoples are united by common bonds, their cultures pieced together in a shared heritage', and expresses concern that 'this delicate mosaic may be shattered at any time'. But other parts of the document move beyond empty rhetoric, and make clear and unequivocal statements. In so doing they assert a commitment to invigorate international law and move it in a new direction. States signing the Rome Treaty affirmed 'that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation'. They were determined 'to put an end to impunity for the perpetrators of those crimes', and were resolved 'to guarantee lasting respect for the enforcement of international justice'. Much to the surprise of sceptics, who thought this was just one more example of end-of-millennium wishful thinking, the sixty ratifications of the Rome Treaty that were needed to bring the statute into force were accumulated within four years. As a consequence the jurisdiction of the ICC came into effect on 1 July 2002.
Quite what this means in practice is yet to be established. The implications of setting up the court may be far reaching, or its role may be circumscribed by US antipathy and the reluctance of those states that have ratified the Rome Statute (i.e. 'State Parties') to act effectively on its behalf. Perhaps not surprisingly, the waters are being tested in parts of the world that are politically and economically of limited significance for the major powers. All the ICC's ongoing investigations are in central Africa. The referral by the government of Uganda was followed by state party referrals from the governments of the Democratic Republic of the Congo in April 2004 and the Central African Republic in January 2005. Then, in March 2005, alleged crimes committed in the Darfur region of Sudan were referred by the UN Security Council. This new case is hugely significant for the ICC, but at the time of writing in mid-2005 the investigation and preparation of warrants are at a relatively early stage. Up to now, the Ugandan case has been the most important, and also the most controversial.
That atrocities have happened in northern Uganda is well established, even if the war between the Ugandan government and the LRA has rarely been covered in the international media. Indeed, the United Nations Children's Fund (UNICEF) had suggested that events in Uganda would be an ideal case for the ICC back in 1998. In the months immediately after the referral, further gruesome killings occurred, including one of the worst individual incidents of the war when some two hundred unarmed people were massacred at Barlonya camp on 21 February 2004. Photographs taken the morning after another incident at Pagak in May show the bodies of women and children. They are lying, quite neatly, in the grass next to each other where they were killed. Each has its skull smashed, including the babies, who are still wrapped in their shawls on their mothers' backs.
Expectations that such events would lead to relatively straightforward prosecutions and convictions were, however, soon found to be misplaced. The complexities on the ground clearly took the ICC by surprise. It has found itself on a steep learning curve, dealing with intense local as well as international opposition. Fundamental issues have been raised about what justice means in an African war zone and about how political order can be established. Among other things, a commitment to ending impunity sets limits to what can be offered in peace agreements. In August 2005, a year after the Office of the Prosecutor began formal investigations, warrants have been prepared but not publicly issued (NB: it subsequently became known that sealed warrants had been issued in July 2005 – see Postscript). The court has had to bide its time, waiting for the right moment – and for key donors to give the go-ahead for it to act. Nevertheless, the capacities and status of the ICC have been rising. It has become a key factor in the ongoing negotiations, and has positioned itself to have a pivotal role both here and north of the border in Sudan.
This book is about what happened when international criminal justice was introduced to northern Uganda. It interrogates myths and misunderstandings, and explains why the ICC intervention has not proceeded as initially planned. It also shows why recent developments in Uganda may have far-reaching effects. But first, it is necessary to provide some background information about developments in international criminal justice.
International law and the most serious crimes
For some political analysts, international law does not really exist. The term is commonly used to refer to a body of rules laid out in agreements between states. These rules have a rhetorical significance in diplomacy, but they are not impartially applied and may at times be ignored by a government if they are not considered to be in the 'national interest'. The rules suggest that states are bound to behave in appropriate ways, but where is the mechanism for ensuring that this happens? Responses to the absence of sanctions have involved trying to hold the governments of states to account by making it apparent that it is in their interests to regulate their own actions and to make them feel uncomfortable if they do not. There are in fact a large number of regulations that are widely observed, at least partly because they are essential for the economies of the richest and most powerful states, which collectively exert pressure on weaker states to comply. Such regulations make, for example, international investments, trade and air travel possible. But in other areas, persuasion has been less effective. For example, controls on environmental degradation have been resisted and all kinds of human rights have been set aside at will. With respect to the latter, Amnesty International has persistently drawn the attention of governments to failures in their apparent obligations under conventions their states have signed and ratified. It can have an effect in some circumstances, but the worst offenders generally do not care much about what Amnesty International or any other well-meaning group has to say.
The possibility that international law might offer more than a set of 'best practice' codes of conduct for governments, and also the reality that it often does not, is closely connected with agreements reached at the end of the Second World War. Still shaken by events, including the recent liberation of the Nazi death camps, the founders of the UN system had wanted to ensure that such things could not happen again. According to its charter, the 'Peoples of the United Nations' were determined 'to save succeeding generations from the scourge of war', 'to reaffirm faith in fundamental human rights' and 'to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained'. In a series of articles grouped in Chapter VII of the charter, the Security Council was mandated with the task of taking action 'with respect to threats to the peace, breaches of the peace, and acts of aggression'. Security Council resolutions were intended to be binding on all UN member states, and the council was given powers under Article 42 to take military action 'to maintain or restore international peace and security'.
At first it seemed that this new approach to international law, and particularly criminal justice, might have a chance of being made effective. A series of agreements outlined a radical clarification and extension of criminal accountability. In most respects, the Nuremberg Charter of August 1945 built on long-standing procedures for prosecuting captured enemies, but it made two very significant departures. Article 6 referred to 'crimes against humanity' to describe 'persecution, enslavement, deportation and other inhumane acts' committed on a very large scale, and Article 7 rejected immunity, stating that 'the official position of defendants ... shall not be considered as freeing them from responsibility or mitigating punishment'. The proceedings that followed were not without their flaws. Systematic rape, for example, was ignored in the indictments, perhaps because it would have been difficult not to implicate the Soviet army. But the atrocious acts of those Nazi leaders found guilty were laid out in detail, their culpability established beyond question, and a model established for holding those most responsible for the worst crimes to account. Three years later, in 1948, came the Universal Declaration of Human Rights. It had no enforcement mechanisms and was not a statement of law, but it spelt out very clearly what an obligation to promote human rights means. It was also submitted for signature the day after the Convention on the Prevention and Punishment of the Crime of Genocide. This did require states to prosecute and punish, either through domestic judicial procedures or 'by such international criminal tribunal as may have jurisdiction'.
These developments, together with the 1949 Geneva Conventions, promised a great deal, but there remained a crucial flaw. In the past there had been few international arrangements that sought to restrict the choices made by the governments of independent states, and concerns about possible infringements of sovereignty were reflected in Article 2 of the UN Charter. This precluded intervention 'in matters which are essentially within the domestic jurisdiction of the State'. Other articles of the charter reiterated the point, and respect for national sovereignty became a predominant aspect of post-Second World War international relations. To give just one important example, the International Court of Justice (ICJ) at The Hague was mandated to deal with any question of international law, but states have to refer cases themselves, and are free to choose not to do so (or even present a defence if they have opted out of that requirement).
The tension between international obligations and national sovereignty had been recognized in the UN Charter. Chapter VII was intended to deal with it in the more extreme cases. It quickly became apparent, however, that Chapter VII was inadequate. Permanent members of the Security Council could veto resolutions, and once divisions opened up between them, any agreement over enforcement measures became unlikely or impossible. By the time the Universal Declaration of Human Rights was signed, the cold war had begun in earnest. The Soviet ambassador to the UN dismissed it as 'just a collection of pious phrases'. For the next forty years the superpowers themselves and their main allies repeatedly failed to comply with the post-Second World War agreements, and signed various others without any serious intention of being bound by them. Appalling governments were supported and protected as long as they kept to the correct ideological line. The list of puppet monsters that enjoyed impunity seems endless. Leaders like Kim Il Sung, Pol Pot, Mengistu, Pinochet, Mobutu and Barre acted without any expectation that they would ever be prosecuted for their barbaric behaviour.
The incapacity of the Security Council also meant that governments of newly independent countries could do just about anything they liked to domestic opponents under the guise of anti-colonialism. Non-interference and protection of borders inherited at independence became an obsession of the Organization of African Unity (OAU). Even the Tanzanian invasion of Uganda in 1971 to overthrow the dreadful regime of Idi Amin received no official support and was condemned as a breach of international law. Amin himself was allowed to live out his days in relative comfort in Saudi Arabia.
There were a few exceptions and glimmers of hope. The introduction of sanctions against apartheid South Africa by the UN in 1967, and their extension in 1977 as mandatory under Chapter VII of the UN Charter, indicated what could be done if there was enough political will. Also the founding of Amnesty International in 1961, as well as the emergence of other non-governmental organizations and human rights groups, revealed that the conventional dispensations of international diplomacy and power politics were not accepted by everyone, and might be resisted and opposed with a degree of success in some circumstances. Eventually the pressure on the US government over its activities in Vietnam proved overwhelming. But overall the human rights record was bleak and the idea of holding to account those individuals who committed crimes against humanity was manifestly a failure. It was not until the late 1980s that there was much prospect of this changing, when the ending of the cold war made it conceivable that the Security Council would take on the role that had initially been intended for it.
In the event, the 1990s did not witness the promised 'New World Order'. On the contrary, it was a decade of humanitarian and human rights disasters, including the disintegration of Yugoslavia, the US-led intervention in Somalia, the genocide in Rwanda, the fall of Srebrenica, new wars in Liberia and Sierra Leone, ongoing wars in Sudan and Angola, and the disappearance of hundreds of thousands of people in Congo who were supposed to be under the protection of the Office of the United Nations High Commissioner for Refugees (UNHCR). Initially, the Security Council, led by the USA, took a highly interventionist approach, but by mid-decade confidence in militarized humanitarianism had waned. In 1994, at the insistence of the UK and the USA, the Security Council refused to accept that genocide was occurring in Rwanda, precisely because it would have meant that the 1948 Genocide Convention would apply and enforcement procedures be activated.
While ending the cold war did not lead to an era of peace and tranquillity, however, it did have the desirable effect of reducing incentives to cover up atrocities and keep mass murderers in power for strategic purposes. At the same time, the introduction of new techniques in television news coverage, such as 'real time' reporting and twenty-four-hour channels, combined with the publicity campaigns of human rights groups, fed demands among electorates in rich countries for something to be done. In this context, the Security Council decided to return to the precedent of Nuremberg and the notion of international criminal prosecution. Initially this was done in a distinctly half-hearted way, but it opened the door to some remarkable developments, including the creation of the ICC.
A resurgence of international criminal trials
In 1993 the Security Council set up the Hague Tribunal for War Crimes in Former Yugoslavia, otherwise known as the International Criminal Tribunal for the Former Yugoslavia (ICTY). It did so by invoking Chapter VII of the UN Charter. Apparently the council had the power to hold perpetrators of the worst war crimes against humanity to justice after all. Indeed, an implication of Resolutions 808 and 827 is that the Security Council had always had an obligation to do so under its powers to keep the peace. Having done this for Yugoslavia, no case could be made for it not being done for Rwanda as well. The result was an appendage of the Hague Tribunal established in November 1994, known as the International Criminal Tribunal for Rwanda (ICTR).
(Continues...)
Excerpted from Trial Justice by Tim Allen. Copyright © 2006 Tim Allen. Excerpted by permission of Zed Books Ltd.
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