International Court Criticized for Uganda Intervention

By Marc Perelman

Published April 01, 2005, issue of April 01, 2005.
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The newly formed International Criminal Court, already facing outright opposition from the Bush administration, is now under criticism from local leaders in northern Uganda , as it is about to issue its first-ever arrest warrants, against leaders of the rebel Lord’s Resistance Army.

A coalition of Ugandan religious and traditional leaders, backed by human rights activists, say they worry that the new court is being politically exploited, is hurting peace efforts, and is indifferent to the protection of civilians and to local justice mechanisms.

In an effort to allay those concerns, the court’s chief prosecutor, Luis Moreno-Ocampo, met with a delegation of Acholi ethnic leaders in mid-March in The Hague. An upbeat joint statement said that the sides reached a better mutual understanding.

The controversy is embarrassing the court’s main advocates, including European governments and international human-rights groups, while providing Washington with fresh ammunition in its campaign to discredit the court.

“The court needed to proceed more cautiously,” said Zachary Lomo, director of the Refugee Law Project in Kampala. “It was overzealous because it was looking for a case to establish its legitimacy and saw the obvious appeal of children being abducted and forced into combat.” As for the Ugandan government, it “saw the ICC as a political means to regain international legitimacy.”

Lomo and others claim that Ugandan President Yoweri Museveni decided to refer the Lord’s army to the new court in December 2003 to deflect international pressure following a humanitarian crisis.

Misgivings about the court’s Uganda intervention are shared, mostly in private, by some of the court’s strongest proponents, including European officials and some leaders of human rights groups. “It’s very unfortunate,” a European diplomat said. “The ICC fell into Museveni’s trap.”

American officials have been studiously silent. In private, however, they say the case is a perfect example of the politicization they warned against.

Court officials would not comment for the record. Advocates say that the appearance of impartiality may be inevitable, since only governments or the Security Council may bring cases. They also point to hints from the court that it was examining crimes by all sides, including the Ugandan security forces — though most observers consider indictments against government officials unlikely.

Barney Afako, a human rights lawyer in Kampala, argued that while the government turned to the ICC out of opportunism, it hadn’t considered the possible consequences. He noted Museveni’s own mistaken pronouncements that the process can be stopped.

In fact, only the prosecutor can halt an investigation once it is formally opened. Court officials have indicated that they believe they have a strong case, which will focus on killings, rapes, sexual slavery, forced displacement and forced enlistment of children under 15.

Another key criticism revolves around the timing of the court’s intervention. Critics say that the prospect of prosecution could be undermining peace efforts launched in late 2004, since it undermines the incentive for rebel leaders to negotiate a settlement that might end in their own incarceration. Similar arguments were aired in the mid-1990s when a tribunal was set up to prosecute crimes in Bosnia while peace talks were under way.

“The ICC is a good idea, because the Lord’s army has committed many atrocities,” said Walter Ochora, administrative head of the Gulu district. “But it totally contradicts the peace efforts, so the timing is wrong,”

Several negotiators who have met LRA leaders in recent years confirm that the rebels are deeply worried about their legal future.

The court’s supporters say that the argument is specious, since there were no serious peace talks when the court entered the dispute in December 2003. They argue that ICC intervention has actually been a catalyst for peace efforts and that it has helped to reduce violence.

More important, the prosecutor has used his broad discretionary powers to monitor the situation on the ground. A source close to the court said that his office was checking in with peace negotiators regularly, and that the prosecutor had been withholding arrest warrants against the top five or six LRA leaders for several months to see whether peace talks yield results. The claim was denied by ICC officials but confirmed by a senior Western diplomat in Kampala.

Once the prosecutor decides to issue warrants, he submits his request to a three-judge panel for authorization. Sources said that the prosecutor has not yet submitted the Uganda warrants.

While the court is accused of hampering peace efforts, a peace accord that offered impunity to rebels could in turn damage the court, which then would face pressure from negotiators to abandon its first case.

Critics also accuse the court of ignoring traditional reconciliation procedures and of discounting a 2000 amnesty law that has brought many LRA rebels out of the bush.

The court’s defenders note that those mechanisms have failed to end the war.

“There is no such thing as a unique Acholi justice system,” Tim Allen, a professor at the London School of Economics, has written in an upcoming book about the ICC’s role in Uganda. “People in Uganda require the same kinds of conventional legal mechanisms as everyone else living in modern states.” He adds that common people were more open to the ICC than their leaders.

Still, both the local population and its leaders share a concern over the court’s inability to guarantee the protection of victims and potential witnesses — a crucial issue, given the LRA’s record of revenge attacks, and how it intends to enforce the arrest warrants.

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