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Museveni™s government, but its continuing attacks in northern Uganda
mostly targeted Acholis, its ¬ghters looting and pillaging villages, raping
women, and abducting many child ˜˜recruits.™™7 Kidnapped children report-
edly ranged in age from eight on up, mostly fourteen to sixteen, although the
proportion of children to adult abductees was not extraordinary in the
context of con¬‚ict in the region. Those abducted were used as soldiers,
laborers, sexual slaves, and ˜˜wives™™ of LRA commanders.8
The government™s UPDF was also accused of massive abuses as it sought
to remove civilians from the areas in which the LRA was active, to rob the
LRA of material support. Beginning in 1996, the army herded civilians into
˜˜protected villages™™ intended to isolate them from the con¬‚ict and enable
freer military movements, much as the British had created concentration
camps during the Boer War and the United States had sought to create
˜˜strategic hamlets™™ during the Vietnam con¬‚ict. The ˜˜internally displaced
persons™™ (IDP) camps reproduced the worst aspects of their earlier pre-
cedents “ they were terminally dangerous for their inmates due to poor
health conditions, inadequate nutrition, and lack of infrastructure. They
also became targets for LRA attacks.9
By 1998“1999, Sudanese support for the LRA was subsiding. The gov-
ernment was negotiating peace with the SPLA in the south and seeking to
improve relations with the United States in the wake of the bombing of the
U.S. embassies in Nairobi and Dar es Salaam by Al Qaeda, whose leader
Osama Bin Laden had resided in the Sudan for several years. Following the
U.S. Department of State™s designation of the LRA as a terrorist organiza-
tion in December 2001, Sudan agreed to stop supplying aid to it.
From 2000, after an offer of amnesty, which some LRA ¬ghters
accepted, the LRA seemed quietly to be residing in southern Sudan.
Believing that the LRA was weak, in March 2003, the UPDF sought ¬nally



7
Ssenyojo, op cit., 412.
8
Allen, op cit., 64“5.
9
Ibid. 53“60.
198 Building the International Criminal Court

to destroy the LRA, with Sudanese permission. The effort failed, however,
and LRA attacks in northern Uganda resumed.
Observers estimate that from 1986 through 2005, the LRA abducted more
than 38,000 children, including 12,000 after the entry into force of the Rome
Statute on July 1, 2002.10 The UN Of¬ce for the Coordination of Humani-
tarian Affairs estimated that, in early 2006, because of their fear of abduction,
40,000 children were commuting from their rural homes into towns and IDP
camps at dusk to sleep in areas more protected from the depredations of the
LRA.11 Massive insecurity had disrupted farming, herding, trading, and
schooling and consequently caused severe regional economic decline.


Referral
In late 2003, informal conversations between lawyers representing Uganda
at the International Court of Justice in The Hague12 and ICC personnel led
the ICC OTP to believe that the Ugandan authorities might be interested in
referring the LRA con¬‚ict situation in northern Uganda to the Court.13 On
December 16, 2003, Ugandan President Museveni sent a con¬dential letter
to the Chief Prosecutor14 referring the con¬‚ict to the Court. In January, the
two met in London to discuss how to proceed, and Museveni and Moreno
Ocampo jointly held a news conference to announce the referral on January
29, 2004. Museveni™s statements, as re¬‚ected in the Ugandan press,
appeared to focus the ICC on the LRA, and Moreno Ocampo™s response
reinforced that impression. According to a news report,
Museveni invited the ICC to probe the LRA for terrorism and committing the most
barbaric atrocities against Ugandans.
˜˜They should answer for kidnaping children and conscripting them into the LRA
and for raping young girls and infecting them with HIV/AIDS,™™ Museveni said.
Ocampo said these terrorists use telephones, buy and receive weapons from in-
dividuals and countries that could be traced.


10
Akhavan, op cit., 407.
11
IRIN, ˜˜Uganda: Too Scared to Return Home™™ (2006).
12
Uganda was accused before the International Court of Justice in The Hague by the Democratic
Republic of the Congo of various violations during the Congo con¬‚ict of 1998“2003.
International Court of Justice, ˜˜Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda)™™ (2005).
13
Interviews, spring 2006.
14
Akhavan, op cit., 403; ICC, Presidency, Letter from Chief Prosecutor Moreno Ocampo to
President Kirsch, ICC-02/04-1 06-07-2004(2004), appendix to ˜˜Decision Assigning the
Situation in Uganda to Pre-Trial Chamber II™™ (2004), 4; ICC, ˜˜Facts and Procedure
Regarding the Situation in Uganda™™ (2005).
199
The First Situations

Museveni said he was grateful that Ocampo had received Uganda™s complaint and
was willing to act and apprehend the Kony terrorists.
˜˜The Uganda Government is using its capacity to ¬ght these terrorists within the
country™s borders but those beyond our reach deep inside our neighbouring coun-
tries will be dealt with by the special prosecutor,™™ Museveni said.
˜˜A key issue will be locating and arresting the LRA leadership. This will require
the active co-operation of states and international institutions in supporting
efforts of the Ugandan authorities. . . . This will require the concerted support of
the international community “ Uganda and the Court cannot do this alone,™™ a
statement read.15

The Sudanese ambassador to Uganda signaled his country™s turn
away from supporting the LRA on February 17, stating that should the
Court ask for Sudan™s aid in arresting Kony, ˜˜Sudan will readily comply
with the ICC request,™™ and particularly because of attacks by the LRA in
southern Sudan, he predicted that Kony and his henchmen would soon be
apprehended.16


Instrumentalization
President Museveni™s referral to the ICC appeared to serve his own political
objectives. Even though his forces were free to act inside Uganda, ICC
involvement could help gain Sudanese and DRC permission for UPDF
forays across borders to attack the LRA. By calling upon the ICC to act
against the LRA, he could shift attention away from UPDF misdeeds. His
embrace of the ICC could help legitimate his government, especially in the
eyes of European leaders. Moreover, the ICC™s appeal for international
cooperation in apprehending LRA suspects could help lead to their capture.
However, Museveni™s dedication to international criminal justice seemed
variable. Once ICC warrants were issued against top LRA leaders, Museveni
used the Court as both carrot and stick, alternatively dangling the possibility
of lifting the ICC warrants if the LRA would negotiate an end to hostilities
and calling for the leaders™ prosecution at The Hague.
Uganda™s referral served the ICC Prosecutor™s purposes as well. The OTP
had been evaluating the Uganda situation in response to communications
received from 2002 onward. Chief Prosecutor Moreno Ocampo recognized
that a self-referral would vastly simplify his task by making Uganda™s
cooperation much more likely than would have his proceeding proprio
motu. In addition, public announcement of the self-referral could help build

15
Price, ˜˜Kony Probe Begins June™™ (2004).
16
Allio, ˜˜Sudan Predicts Kony End™™ (2004).
200 Building the International Criminal Court

the credibility of the Court, since critics often wondered what the chances
were that the ICC would gain necessary cooperation from situation states.
The ICC Prosecutor responded eagerly to Uganda™s interest and was
immediately drawn into countervailing pressures of human rights norms,
humanitarian values, and Ugandan internal politics. Although self-referral
eased the Court™s practical problems, it raised the possibility that the ICC
was being enlisted on one side of the internal con¬‚ict. The way in which the
referral was announced buttressed observers™ suspicions.
Moreno Ocampo™s appearance on a platform with Museveni set off
alarms among international NGOs concerned about the appearance of ICC
partiality. Amnesty International welcomed the announcement but asserted
that the investigation ˜˜must be part of a comprehensive plan to end
impunity for all such crimes, regardless of which side committed them and
of the level of the perpetrator,™™ cautioning that Uganda appeared to have
sought to limit the referral ˜˜to crimes committed by one party to the con-
¬‚ict.™™ In a rather harsh statement, Amnesty International emphasized that
a referral could not ˜˜limit the scope of any investigation,™™ and urged the
independence of the Prosecutor, citing Article 42(1) of the Rome Statute.17
Human Rights Watch praised the opening of the investigation. In its
press release, the director of its international justice program, Richard
Dicker stated:
Human Rights Watch has documented many shocking abuses by the LRA in
Uganda, but the ICC prosecutor cannot ignore the crimes that Ugandan government
troops allegedly have committed. . . . President Museveni™s referral does not limit the
prosecutor™s investigation only to crimes allegedly committed by the LRA. The
prosecutor should operate independently and has the authority to look at all ICC
crimes committed in Uganda.18


17
Amnesty International, ˜˜Uganda: First Steps to Investigate Crimes Must Be Part of
Comprehensive Plan to End Impunity™™ (2004). Statute Article 42(1) says: ˜˜The Of¬ce of the
Prosecutor shall act independently as a separate organ of the Court. It shall be responsible
for receiving referrals and any substantiated information on crimes within the jurisdiction
of the Court, for examining them and for conducting investigations and prosecutions before
the Court. A member of the Of¬ce shall not seek or act on instructions from any external
source.™™
18
Human Rights Watch, ˜˜ICC: Investigate All Sides in Uganda “ Chance for Impartial ICC
Investigation into Serious Crimes a Welcome Step™™ (2004). When Moreno Ocampo
announced in October 2005 that the Court was issuing arrest warrants for ¬ve LRA leaders,
he emphasized the fairness of his investigation. The OTP ˜˜had analyzed the gravity of all
crimes in Northern Uganda committed by the LRA and Ugandan forces™™ and found that the
LRA™s crimes were ˜˜much more numerous and of much higher gravity than alleged crimes
by the UPDF.™™ ICC, ˜˜Statement by the Chief Prosecutor on the Uganda Arrest Warrants™™
(2005), 2, 3.
201
The First Situations

The HRW press release raised the issue of victims™ interests when it ˜˜cautioned
that the prosecutor should conduct his investigation in a way that does not
jeopardize the security of the children who are still in LRA captivity or
escalate the risk of further abductions.™™ Some local Ugandan organizations
expressed concern about the effects of ICC involvement upon ongoing
peace negotiations.


Peace versus Justice
Once the Chief Prosecutor and President Museveni announced the referral,
the ICC was plunged into the dilemmas of peace versus justice and subject
to Museveni™s ever-shifting strategems. Moreno Ocampo struggled to ¬nd
a balance between carrying out his statutory responsibilities to pursue the
alleged crimes and his concern for the interests of victims. Those interests,
particularly in the eyes of humanitarian local NGOs, included not just being
included in judicial procedures, but ending the killing and kidnapping.
The ICC Statute™s preamble asserts that countering impunity contributes
to prevention of crimes. If this is correct, then the operations of justice
should enhance peace. Peace negotiators argued, however, that by threat-
ening the LRA leadership, the ICC reduced their incentive to lay down their
arms. Skeptics about the LRA™s sincerity countered that only the LRA
leaders™ arrests or their military defeat would truly end the con¬‚ict. Presi-
dent Museveni came down on all sides. He variously called for crushing the
LRA militarily, arresting its leadership, and supporting the ICC™s efforts,
but he also repeatedly implied that he had the power to suspend ICC
prosecutions if the LRA would negotiate an end to hostilities. While his
peace initiatives drew support from humanitarian organizations, his
apparent willingness to endorse LRA impunity roused protests and warn-
ings from international human rights organizations. The Court was stuck in
the middle.
Following the referral, many Ugandan peace organizations argued
that ICC involvement would make peace less likely. For example, Acholi
Religious Leaders™ Peace Initiative negotiator Father Carlos Rodriguez
warned, ˜˜The issuing of such international arrest warrants would practi-
cally close once and for all the path to peaceful negotiation as a means to
end this long war, crushing whatever little progress has been made during
these years.™™19 Other Ugandan groups and the Amnesty Commission
(created by the Amnesty Act of 2000) ˜˜voiced concern that the investigation

19
The New Vision, ˜˜Probe Army Too, Amnesty Tells ICC™™ (2004).
202 Building the International Criminal Court

could worsen the con¬‚ict,™™ according to an analyst at the University of
British Columbia™s Liu Center.20
The amnesty of 2000 had succeeded in luring signi¬cant numbers of LRA
commanders to trade their weapons and military pursuits for peace during
the intervening years; however, Kony and his top leaders were not
responsive. Even though they were in periodic contact with government and
other negotiators, their demands remained unclear and their raids, abduc-
tions, and attacks continued. Skeptics were convinced that they had no real
intention of negotiating peace. The government continued to oscillate
between a policy of negotiation and force, frequently stating that the only
way to end the con¬‚ict was by complete military victory.
On July 29, 2004, the Chief Prosecutor announced that, having com-
pleted its preliminary inquiry, the OTP was opening a formal investigation
into the situation in northern Uganda.21 He later maintained that, in def-
erence to ongoing peace efforts, the investigation was pursued with a ˜˜low
pro¬le.™™22 In November, President Museveni announced a partial cease-¬re
with the LRA so that its leaders could gather, with international observers if
they so desired, and discuss how to take up the amnesty offers. The Presi-
dent said that if the leadership reached agreements with the Acholi com-
munity for some kind of settlement, ˜˜the state could then withdraw its case
and we could inform the ICC that we have a solution to the Kony problem.
That is what the ICC wants. No cover-up, no impunity.™™23 In early January
2005, Executive Director James Otto of the Gulu-based Human Rights
Focus urged the government to drop charges ¬led with the ICC against
Kony,24 and in mid-February the Catholic Church charged that the ICC™s
involvement was counterproductive. ˜˜Their of¬cials seem to lack serious
grasp of the fact that to start war crimes investigations at a time when the
war is not yet over risks having, in the end, neither justice nor peace
delivered.™™25 In late February, as another cease-¬re expired, the ICC came
under continued criticism from local and international NGOs as well as
Britain™s ambassador to Uganda. Representatives from Christian Aid,
Conciliation Resources, and Uganda™s Concerned Parents Association, the
Ugandan peace initiative Kacoke Madit (˜˜big meeting™™ in Acholi), argued

20
Huß, ˜˜Human Security Update: Northern Uganda™™ (2004), 5.
21
ICC, ˜˜Prosecutor of the International Criminal Court Opens an Investigation into Nothern
Uganda™™ (2004).
22
Interviews.
23

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