The LRA and the ICC: Bad Facts Make Bad International Criminal Jurisprudence

John Siebert Africa, Defence & Human Security

Author
John Siebert

The Ploughshares Monitor Spring 2010 Volume 31 Issue 1

The International Criminal Court (ICC) was created “to investigate, prosecute and punish those who commit war crimes, genocide and crimes against humanity”—many of whom would otherwise escape punishment in their home countries (DFAIT 2007). Through the process of prosecuting such individuals, the ICC also intends to deter others from committing such acts, end impunity on the international stage for perpetrators, and deliver justice to the survivors.

It must be disheartening, therefore, for the ICC and its supporters to face criticisms such as those from a leading spokesperson for northern Ugandans (Okello 2007, p. 1), who have been the primary targets of atrocities committed by the Lord’s Resistance Army (LRA) from 1986 through 2006:

Ever since the International Criminal Court seized itself of the situation in northern Uganda, many within the international and local communities have been complicit in shifting attention away from the true scale of what has been done to people and the range of actors involved, focusing instead on the infinitely more manageable task of prosecuting a handful of individuals from only one of the many parties to the conflict—and in the process ensuring the institutional interests of a fledgling global governance mechanism, the ICC.

The ICC stands accused by Okello and others of making matters worse in Uganda, even while pursuing its high-minded goals.

The ICC indictments of LRA leaders

In 2003 the Government of Uganda asked the ICC to investigate the northern Uganda insurgent group called the Lord’s Resistance Army. The ICC prosecutor opened an investigation in July 2004. On July 8 and September 27, 2005 arrest warrants were issued by the ICC for LRA leaders Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya on 33 separate counts of war crimes and crimes against humanity, including murder, rape, enlisting of children, and sexual enslavement. The warrants were sealed until redacted versions were publicly released on October 13, 2005 (ICG 2007).

Subsequently Lukwiya was reportedly killed in a clash with the Ugandan military on August 12, 2006. Otti was reportedly killed in October 2007 by the LRA itself for disloyalty; although he has not been heard from again, his death has not to my knowledge been independently verified.

The Juba Peace Talks between the Government of Uganda and the LRA began on July 14, 2006, hosted by the Vice-President of the Government of Southern Sudan, Riek Machar. The talks continued in fits and starts until April 10, 2008, when the first of three announced ceremonies to sign a final peace agreement was frustrated by Kony’s nonappearance. The last of these no-shows was on November 14, 2008. It was reported through a number of channels that the LRA leadership was reluctant to sign the Final Peace Agreement (FPA) because of the outstanding ICC indictments, despite the outlining of negotiated alternative justice processes in the FPA. Any hopes for signing the agreements reached to date were effectively squashed with the advent on December 14, 2008 of Operation Lightening Thunder, a large-scale military operation headed by Uganda to kill or capture the LRA who had taken residence in the Democratic Republic of Congo (DRC). The LRA were dispersed to continue committing atrocities against civilians in the DRC, Southern Sudan, and the Central African Republic (CAR).

Amidst these events between 2003 and 2008, a contentious debate emerged about whether the demands of international criminal justice as represented in the ICC indictments outweigh the imperatives of negotiating an enduring peace between the LRA and the Ugandan Government.

By any standard the leadership and foot soldiers of the LRA, originating in northern Uganda in the 1980s, are prima facie guilty of appalling human rights abuses against civilian non-combatants, often children, in their own and in several neighbouring countries. The scope and gravity of LRA abductions, maiming, rapes, torture, and murders meet the common understanding of war crimes and crimes against humanity. It was to prosecute such crimes that the ICC came into being in 2002.

The numbers from Uganda, all estimates, tell part of the story: 100,000 people killed, between 38,000 and 66,000 children abducted and enrolled as fighters or sexual slaves (SWAY 2008), 2 million of a total Ugandan population of 25 million forced to live in squalid, internally displaced persons (IDP) camps. There are no estimates for the wounded and maimed, malnourished, raped, forgotten, and disappeared. There is no way to quantify the loss of livelihoods and deprivation in local communities and cultural life.

One problem identified by Okello—that the LRA was not the only party to this conflict worthy of being indicted by the ICC—is reiterted by Atkinson (2009, p. 19):

Theoretically and ideally—from perspectives that range from fundamentally moral to narrowly legalistic—formal prosecution makes sense. But the three [remaining] LRA leaders under indictment from the ICC have now fought in a conflict, or really a series of conflicts, encompassing four countries. These conflicts have involved hundreds or even thousands of others who have also committed human rights violations, also often gross and horrendous—from presidents and generals to foot soldiers in myriad militias and government forces.

Lawyers have many snappy sayings, “bad facts make bad law” being one of the more common. In this case, the pursuit by the ICC of the clearly guilty LRA leadership has raised the specter of the international community’s frustrating the realization of a greater good: the conclusive end of the LRA insurgency and its atrocities.

Perpetrator or victim?

The conundrum grows with the application of criminal culpability to these men. An illuminating story in The Globe and Mail (Nolen & Baines 2008) claimed that Dominic Ongwen had been abducted as a 10-year-old child in 1990, brutalized, and trained as an LRA fighter. He rose to the third- or fourth-highest rank in the LRA, which explains the ICC choice to indict him. According to international humanitarian law he was a child soldier until he turned 18, and therefore subject to rehabilitation rather than prosecution. But he was older than 18 when the ICC began to investigate people in 2002.

Nolen and Baines observed: “As the law stands, if they carry out the same crimes after their 18th birthdays that they did the day before, they are no longer victims, but criminals.” The Globe and Mail story speculates that Ongwen ultimately turned down the option of voluntarily leaving the LRA and turning himself in. Except for the ICC indictments his decision might have been different because a national Uganda amnesty law was in place that Ongwen could have taken advantage of if the ICC had not intervened.

Then there is the case of Kony himself—the undisputed and ruthless leader of the LRA, which is often described in cult-like terms with Kony its animating centre. As Hovil and Quinn (2005, p. 37) write, “Worse, still, is the possibility that Kony might be released, for instance, on a plea of insanity, as has been suggested.” Speculation about his sanity has cast doubts about his criminal culpability. If Kony gave himself up or was captured, it could turn out that he would be diagnosed as a paranoid schizophrenic or with some other recognized psychiatric condition.

Uganda and the world would be considered fortunate were Kony and the others in custody by capture or voluntary surrender. The LRA has incredible resilience and the ICC has no police or military outside of national security forces to do its bidding. As Atkinson (2009, p. 19) concludes, “The prospect of Kony and the remaining top LRA commanders who have outstanding ICC arrest warrants against them submitting to either the ICC or a Ugandan national judicial prosecution ‘satisfying international standards’—as is widely called for—seems almost impossible to imagine.” John Prendergast (2007, p. 5), writing for ENOUGH—the project to end genocide and crimes against humanity—offers this solution: “It remains highly doubtful that Kony will trust [Ugandan President] Museveni enough to submit to a trial in Uganda, and third country asylum in a country that is not a signatory to the Rome Statute [establishing the ICC] may be the most realistic option.”

That or Kony’s death. But by whom and by what means would that be accomplished? And, if successfully carried out, would it necessarily accomplish the definitive end of the LRA? We cannot know the answer in advance.

It seems the ICC has little choice but to carry through on its evidential findings against the LRA and continue to seek prosecution. Philippe Kirsch, President and Judge of the ICC from 2002 until 2009, stated: “We’re not dealing with shoplifting. The court is dealing with genocide, crimes against humanity and war crimes, all of extreme gravity. Once a crime of that nature comes to the court, we can’t simply decide we are going to ignore it and it is inconvenient” (May 2008). Perhaps this seasoned jurist needs to qualify the application of the universal principles of justice articulated in the Rome Statute in the face of dire circumstances. Beyond pronouncing on guilt or innocence, it is often the task of a justice system to adjudicate between competing rights, the lesser of evils, or the broader demands of justice beyond individual culpability in particular circumstances.

Justice Kirsch and the supporters of the ICC, in the circumstances of the LRA and Uganda, may want to consider the possibility that the ICC, without the means to secure the capture of the indicted men, may have made an appalling situation worse. Atkinson (2009, p. 10) responds indirectly to Kirsch’s standing on legal principle: “Indeed, for many of the people of northern Uganda, and Acholi in particular, there has been no black-and-white, no good choice from among the often gruesome violence of the LRA, the often equally extensive and brutal violence of government troops, or the typically slower, quieter, but at least equally destructive structural violence of the [IDP] camps.”

Currently there is neither justice nor peace. Kony is believed to be in isolation in the Central African Republic. LRA soldiers, operating in groups as small as five, continue to abduct, kill, and maim in the unpatrolled remote border communities between the DRC, Southern Sudan, and the CAR. Calls are again being made for negotiations with the LRA to finally end its insurgency.

 

References
Atkinson, Ronald R. 2009. From Uganda to the Congo and Beyond: Pursuing the Lord’s Resistance Army. New York: International Peace Institute.

Foreign Affairs and International Trade Canada. 2007. Canada and the International Criminal Court.

Hovil, Lucy & Joanna Quinn. 2005. Peace First, Justice Later: Traditional Justice in Northern Uganda. Refugee Law Project Working Paper No. 17. Kampala: Refugee Law Project.

International Crisis Group. 2007. Northern Uganda Peace Process: The Need to Maintain Momentum. Africa Briefing No. 46, September 14.

May, Kathryn. 2008. War-crimes court won’t bend to political pressure: Canadian head. Ottawa Citizen, August 11.

Nolen, Stephanie & Erin Baines. 2008. The making of a monster. The Globe and Mail, October 25, pp. F4-5.

Okello, Moses Chrispus. 2007. The false polarisation of peace and justice in Uganda. Expert paper for Workshop 2—Justice in Situations of Ongoing Conflict. Organized by International Center for Transitional Justice. Nuremberg, Germany, June.

Prendergast, John. 2007. Let’s Make a Deal: Leverage Needed in Northern Uganda Peace Talks. ENOUGH Strategy Paper #6, August.

Survey of War-Affected Youth. 2008. The State of Female Youth in Northern Uganda: Findings from the Survey of War-Affected Youth. Phase II.

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