Justice in Conflict: The ICC and Peace Processes

Chapter by Nick Grono and Adam O’Brien in ‘Courting Conflict? Justice, Peace and the ICC in Africa’, published by Royal Africa Society.

Introduction

The International Criminal Court (ICC) is now investigating or prosecuting individuals involved in three of the most devastating conflicts in Africa – Darfur, northern Uganda and the Democratic Republic of Congo (DRC). [1] In each case, the ICC has been forced to confront the challenges inherent in pursuing peace and justice simultaneously. What happens – and what should happen – when efforts to prosecute perpetrators of mass atrocities coincide with a peace process? What is the best approach when the price of a peace deal may be a degree of impunity for those most responsible for such abuses? One common and convenient response is to hide behind truisms and make general statements of principle to the effect that no trade-off is required because peace and justice are inextricably linked. Clearly peace and justice are complementary in that justice can deter abuses and can help make peace sustainable by addressing grievances non-violently. But good things don’t always go together, and to present peace and justice as invariably mutually reinforcing is misleading and unhelpful when the difficult reality of peacemaking often proves otherwise. We review below arguments surrounding the ICC’s impact on prospects for peace in Uganda and go on to offer some general considerations that international policymakers should heed when seeking to balance peace and justice demands.

Doing deals with perpetrators

The potential clash between peace and justice objectives can sometimes be circumvented by pursuing a sequential approach – for example, by getting a peace agreement now, then dealing with justice many years later. This is what has been happening in Latin America a decade or two after transitions to democracy. However, most of those transitions explicitly granted amnesty to enable handovers of power, and it is only many years down the track that those amnesties are being wound back.

A further response is to acknowledge the tensions between peace and justice and to recognise that pragmatism and recent history indicate that justice cannot always claim primacy. While impunity for people who have committed the gravest acts of inhumanity is morally repugnant, sometimes doing a deal with perpetrators is unavoidable and necessary to prevent further conflict and suffering. This is partly because the reality of conflict is such that multiple warring parties are likely to have committed atrocities. Unless one party has been utterly vanquished, peace negotiations will often assemble parties responsible for grave abuses and a deal will depend on their agreeing to end the conflict. Because perpetrators are unlikely to want a prison cell as a reward for their hard-won peace agreement, mediators have frequently used amnesties as an incentive.

Recent agreements backed by the United States and the European Union, for example, have involved deals between serial abusers and either implicitly or explicitly provided impunity: the 2001 Bonn Agreement that set up a new government in Afghanistan; Sun City and related agreements that formally ended the DRC conflict in 2003; and Sudan’s 2005 Comprehensive Peace Agreement (CPA) as well as the Darfur Peace Agreement in 2006. While none of these agreements features explicit amnesties (unlike the Lomé Agreement in Sierra Leone) and some of them have token transitional justice provisions, they are largely silent on accountability for past atrocities, despite the fact that some of the biggest rights abusers are party to these agreements, or were put into power by them.

More than four million people have died during the DRC’s civil war and its aftermath. Conflict in Sierra Leone cost hundreds of thousands of lives. The toll in Darfur is increasing daily. It is tempting and understandable to take a righteous stance and say that deals should not be done with those responsible for atrocities. However, it is difficult to tell victims of these conflicts that the prosecution of a small number of people should take precedence over a peace deal that may end the appalling conditions they endure and the daily risks they face.

On the other hand, there is the issue of the role of prosecutions in preventing future atrocities. While mediators are inclined to insist that conflict resolution necessitates that all options, including full amnesty, must be on the table, this insistence ignores the very important deterrence impact of international prosecutions, let alone fundamental moral considerations. By discounting this deterrence dimension we miss a potentially valuable way of reducing the prospect of atrocities in years to come. The conflict in northern Uganda and the current peace process provide a case study in which all of these difficult issues are in play.

Northern Uganda

For the last 20 years, the people of northern Uganda have suffered at the hands of the vicious Lord’s Resistance Army (LRA), and have been penned in by the brutal response of the Ugandan government. The LRA’s leaders, headed by the mystic Joseph Kony, claimed to be on a spiritual mission to cleanse northern Uganda and to rule the country according to the Ten Commandments, but have recently tried to recast themselves as freedom fighters for the politically and economically marginalised region. Regardless of their motivations, the LRA has unleashed a reign of terror primarily on the people of northern Uganda, abducting tens of thousands of children and adults, turning them into rebel soldiers, porters and sex slaves, and killing or mutilating indiscriminately. [2]

Unfortunately, the Ugandan government’s response has been little better than the problem it purports to address. The government herded over a million of the north’s inhabitants (predominantly Acholi) into squalid, insecure camps – condemning them to a life removed from their fertile land, with little hope for a productive future. Every week, according to the government’s own statistics, a thousand people on average die from conflict-related disease and malnutrition. [3]

For the first time in around a decade, a sustained peace process is taking place between the LRA and the Ugandan government. The talks are occurring in Juba, Southern Sudan, mediated by the Government of Southern Sudan. One complicating factor in the negotiations is that the ICC is prosecuting the leadership of the LRA. The ICC has come under intense criticism in northern Uganda since the announcement in January 2004 that the Ugandan government had made the first state party referral to the ICC. The Court has been condemned by a wide range of international NGOs, academics, mediators and northern Ugandans. These critics argued that the threat of international prosecutions would undermine fragile local peace initiatives; would prolong the conflict by obliterating the LRA’s incentive to negotiate; and would make displaced northern Ugandans even more vulnerable to LRA attacks. In addition to criticising the timing of the ICC’s investigation, some observers asserted that the Court’s brand of retributive punishment was fundamentally at odds with local values, enshrined culturally in traditional reconciliation ceremonies and legally in Uganda’s Amnesty Act of 2000. The ICC’s intervention, opponents argued, would ultimately perpetuate rather than prevent conflict. [4]

Some three years later, the exact opposite has happened. We are in the midst of the most promising peace initiative in the last 20 years; one that has dramatically improved the security and humanitarian situation in northern Uganda. A landmark cessation of hostilities agreement removed most LRA combatants from Uganda, allowing hundreds of thousands of war-weary civilians to begin the process of resettlement and redevelopment. The elusive and erratic LRA has tentatively begun to open up, building lines of communication with both northern Ugandans and the government. These emerging signs of trust and confidence help to promote reconciliation and to pave the way home for displaced populations. Rather than driving the LRA back into the bush, the rebels have been drawn in to negotiations. Rather than making civilians more vulnerable, northern Uganda is safer and life is slowly improving.

How did we get here? We need to be careful about placing too much credit at the feet of the ICC. An array of political and military developments in the region – most notably the signing of Sudan’s CPA and improved performance by the Ugandan army – have increased the costs of continued conflict for the LRA. These shifts have cut off the rebels’ room for tactical and strategic manoeuvre and have compelled the LRA leadership to explore a negotiated settlement more vigorously than in the past.

We would argue that the ICC’s investigations played an active, positive role in encouraging and reinforcing these regional trends for the following four reasons.

First, the threat of prosecution clearly rattled the LRA military leadership, pushing them to the negotiating table. Joseph Kony and the LRA commanders are acutely aware that the ICC hangs as a sword over their heads. The issuance of arrest warrants in particular created an incentive to reach a settlement. It may be that the LRA’s decision to pull most of its troops out of northern Uganda and to issue standing orders not to attack anyone in the area is in part due to deterrence by the ICC. The LRA continues to attack civilians in Southern Sudan, perhaps in the belief that it is beyond the geographic limits of the referral.

Second, the ICC’s investigation made it more difficult for the LRA to enjoy continued support from its key foreign ally, Sudan. Beginning in 1994, Khartoum provided an umbilical cord to Kony in the form of a steady stream of weapons, training and transportation. For Khartoum, the ICC’s case increased the stakes for supporting the LRA and prompted the Government of Sudan to sign a 2005 memorandum of understanding with the Court to cooperate with arrest warrants issued against LRA commanders. Regardless of whether Khartoum actually fell within the orbit of the ICC’s criminal investigation, the threat had a deterrent impact.

Some caution is necessary here. Other factors may have been more significant than the ICC in influencing Khartoum’s calculations and decision to desist from supporting the LRA to the same extent as in the past. Pursuant to the CPA, for example, the Sudanese Armed Forces (SAF) pulled out of Southern Sudan, cutting off the LRA’s supply lines and depriving the rebels of bases of sanctuary.

Third, the ICC’s investigation raised awareness and focused the attention of the international community, which in turn provided a crucial broad base of regional and international support for the fledgling peace process. One of the key problems of previous peace initiatives was weak external support. Now, in Juba, the international community has stepped up its engagement, and the UN and a number of countries are providing significant support for the talks.

Fourth, the ICC’s attempt to hold the LRA leadership criminally liable for its atrocities in northern Uganda has embedded accountability and victims’ interests in the structure and vocabulary of the peace process. The third point on the five point negotiating agenda is devoted to reconciliation and accountability. The parties to the talks have accepted, in principle, that robust accountability (in the form of a special chamber of the High Court and community-based rituals) is inevitable – although we should remain very sceptical of the LRA’s commitment to this principle. Whether sincere on not, the LRA is being pushed towards accountability on multiple fronts by multiple actors. Consultation with the victims will play a crucial role in attempting to devise robust local accountability mechanisms. The ICC’s impact is apparent insofar as this has never happened in previous initiatives with the LRA or any of the other myriad rebel groups that have emerged in Uganda since President Museveni came to power in 1986.

Some policy considerations

While the ICC’s overall contribution to the prospects for peace in Uganda has been positive, the tension between peace and justice comes into sharpest relief when the detailed provisions of a peace deal are being negotiated. Foremost among the obstacles to a Juba agreement (let alone the implementation of such a deal), is the conflict between the ICC prosecutions and the desire of the LRA’s leaders for full or substantial impunity. Kony and his commanders state that they will not do a deal unless and until the ICC prosecutions are dropped. Fear of arrest means that they avoid Juba and issue instructions by satellite phone.

As the ICC Prosecutor continues to investigate participants in ongoing, or recently ended, conflicts, the international community will increasingly confront these peace and justice dilemmas. How should it balance the range of competing, and often conflicting, public policy goals in such situations? There are no clear-cut answers to these problems. Instead, we set out below some of the key considerations that policymakers should take into account when confronted with such issues.

Prosecution by the ICC is one of the few credible threats faced by leaders of warring parties

One of the main challenges for international policymakers in their efforts to resolve conflicts is that they often lack incentives or sanctions of sufficient credibility to influence the calculations of the warring parties. To take Sudan as an example, the threat of prosecution has been practically the only credible threat applied to the Khartoum government over the last few years – largely because the UN Security Council has itself been unwilling to take the tough decisions, and has instead been happy to outsource the ‘bad cop’ role to the ICC. The threat of prosecution – and the examples of Slobodan Milosevic, Charles Taylor, Hissène Habré and others – can have a salutary effect on those contemplating state-sponsored atrocities, but only if there is a real likelihood that they may face the consequences of their policies. Unfortunately, this is a stick that loses much of its deterrent power when actually applied to those still in office. Government officials who are the subject of ICC prosecution have a strong incentive to cling to power at all costs so as to avoid arrest. This will be President Bashir’s tactic in Sudan. Zimbabwe’s President Mugabe has made it clear to associates that the key motivation for his staying in power – and why he will do so until he dies or is removed – is the fear of facing an international tribunal in the future.

The ICC must secure convictions to ensure its credibility and requires
strong international support to do so

The ICC needs to secure convictions to ensure its credibility as a deterrent to future perpetrators. This is going to be a challenge. In Darfur and Uganda the Court is going to find it extremely difficult to get hold of those it is prosecuting. And there will always be the risk of its prosecutions being trumped by peace processes.

In Uganda, the Ugandan army has failed to defeat the LRA for more than 20 years. While the Ugandan forces have recently improved their capabilities, the LRA has been able to take refuge in neighbouring countries. The lack of a coordinated response by those countries and the broader international community has ensured that the rebel group has been able to continue its attacks. It also means that the ICC cannot arrest those it wishes to prosecute. If the peace talks fail to achieve a satisfactory outcome, international efforts will have to be redoubled to arrest the indictees.

In Darfur, the Prosecutor will not get any cooperation from Khartoum. After the Prosecutor applied for warrants, President Bashir declared that ‘the government will not hand over any citizen for trial outside the country. [5] That being the case, the ICC will need strong international support to progress with the Darfur prosecutions. To date, however, the international community has displayed an acute lack of political will in dealing with Khartoum. One hopes, without much optimism, that if and when prosecutions commence, the international community will be shamed into providing more substantive assistance and pressure.

Impunity should always be a last resort

The crux of the whole ‘peace versus justice’ debate is what should be done when a warring party (or parties) insists that a prospective peace deal is conditional on a halt to international criminal prosecutions. In these circumstances, the overriding policy issue is whether the important but uncertain prospect of deterring future perpetrators and reducing future conflicts takes precedence over more certain benefits of an immediate end to an ongoing conflict. The first point that needs to be acknowledged is that peace deals that sacrifice justice often fail to produce peace. Failed amnesty agreements brokered with the likes of Foday Sankoh in Sierra Leone and Jonas Savimbi in Angola, and their violent aftermath, demonstrate the potential costs of impunity.

In other contexts, however, past deals that have offered limited or full immunity from prosecution have helped bring an end to conflict and instability. One obvious example is the deal with Charles Taylor to get him out of Liberia and to bring an end to the conflict there. In South Africa, outgoing leaders were given amnesty as part of a truth and reconciliation process in an effort to end 34 years of apartheid. The likely alternative was many more years of conflict. In Mozambique, after 16 years of civil war ended in 1992, the Parliament adopted a general amnesty for all fighters pursuant to which reconciliation processes took clear precedence over accountability. The country has been largely at peace since.

The Rome Statute that governs the ICC offers ways to reach a peace deal by including robust accountability mechanisms. Such mechanisms should aim to combine traditional reconciliation ceremonies and formal legal processes in a way that satisfies both the victims’ needs for justice and meets the Rome Statute’s standards for accountability. Whether or not they meet the Statute’s standards would be assessed under Article 17, which requires the ICC, under the principle of complementarity, to defer to a genuine investigation or prosecution by Uganda – if such proceedings were to take place. The Security Council also has the option under Article 16 to suspend an ICC investigation for renewable one-year increments if it considers this to be in the interests of international peace and stability. Such a decision could be taken if there were a peace deal with adequate accountability measures, even if they did not meet the complementarity requirements.

We also need to bear in mind that the ICC may be less of a deterrent to rebel groups than state actors, at least until the late stages of their rebellion, by which time it is too late for them to ameliorate their conduct to escape prosecution. Most rebellions fail, and most rebels embarking on their challenge to the central government are unlikely to be concerned that they may later be prosecuted for their atrocities. For these individuals, survival and success are probably much more immediate concerns. All of this means that, in the Uganda situation, the prosecution of Kony and his fellow leaders – however meritorious and warranted – may have to be justified on grounds other than its deterrent impact on potential future rebel leaders.

Different considerations apply in the case of Darfur. When it comes to the calculations of government officials, prosecution is a threat to something they already have – power – and thus may have greater deterrent impact. If a credible threat of prosecution for future atrocities exists in the minds of a regime’s leaders, then they have something tangible to lose and arguably will weigh that risk when deciding how to respond to a challenge to their authority. The successful prosecution of Sudanese officials responsible for the state’s campaign of atrocities would send a powerful message around the world, and may go some way to preventing Darfur-like situations in the future. We know that the Milosevic, Taylor and Habré examples have resonated among leaders responsible for atrocities elsewhere. Also, it is certain that any Darfur peace deal that left the Khartoum regime in power would not prevent its restarting the conflict if and when it suited its purposes – as it is currently doing in central Sudan in breach of the CPA. Hence, when dealing with Khartoum, the likely outcome is no peace and no justice.

Conclusion

An assessment of the ICC’s impact on the Uganda conflict, and of considerations arising from other conflicts such as that in Darfur, cannot provide a straightforward answer to the question of how best to resolve competing justice and peace goals. On the one hand, ICC prosecution has, arguably, been successful where other attempts have failed in forcing Kony to the negotiating table, and providing him with incentives to explore seriously the option of a peace agreement. Yet, as the peace talks progress, it is clear that the ICC remains a very real obstacle to achieving an end to the conflict.

Much can be done to accommodate the need for peace with the demands of justice, particularly through the mechanism of Uganda’s own justice system. In the end, however, difficult choices have to be made about how to balance the need for peace with the acute importance of accountability, deterrence and the strengthening of the institution of the ICC.

These are not easy decisions, and often the choices that have to be made are distasteful – but we don’t do any favours to the causes of peace or justice by pretending that such decisions don’t have to be made when it comes to ending a conflict. Let’s just hope that we make the right choices when we have the option.

About the author

Nick Grono is the Vice President for Advocacy and Operations at the International Crisis Group. He has overall responsibility for the operation of all programmes and executive oversight of Crisis Group’s operations. He also coordinates Crisis Group’s advocacy efforts worldwide. Nick’s areas of expertise include conflict prevention and resolution, security and development, Darfur, Responsibility to Protect, transitional justice and the International Criminal Court.


1. The ICC Prosecutor also opened an investigation in the Central African Republic on 22 May 2007. See, Office of the Prosecutor, “Background note on the opening by the Prosecutor of an investigation in CAR”, Media Release by the Office of the Prosecutor, The Hague: ICC, 22 May 2007.

2. T. Allen, “War and Justice in Northern Uganda: An Assessment of the International Criminal Court’s Intervention”, London: Crisis States Research Centre, Development Studies Institute, London School of Economics, 2005; United Nations Office for the Coordination of Humanitarian Affairs (OCHA), “A Ugandan Tragedy”, 10 November 2004.

3. Republic of Uganda, Ministry of Health, “Health and mortality survey among internally persons in Gulu, Kitgum and Pader districts”, July 2005, available at:www.who.int/hac/crises/uga/sitreps/

4. For example, J. Volqvartz, “ICC Under Fire Over Uganda Probe”, CNN.com, 23 February 2005; K. Southwick, “When Peace and Justice Clash”, International Herald Tribune, 14 October 2005; “Not a Crime to Talk: Give Peace a Chance in Northern Uganda”, joint statement by Refugee Law Center and Human Rights Focus (HURIFO) on the Juba Peace Talks, July 2006; H. Cobban, “Uganda: When International Justice and Internal Peace are at Odds”, Christian Science Monitor, 24 August 2006; Z. Lomo, “Why the International Criminal Court must withdraw Indictments against the Top LRA Leaders: A Legal Perspective”, Kampala: Refugee Law Project, August 2006.

5. M. Osman, “Sudan President: No Handover of Citizens”, Washington Post, 3 March 2007.

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