The newly established International Criminal Court (ICC) risks being “fatally damaged” by demands that it cancel its first-ever war-crimes indictment because it is an obstacle to ending Uganda’s 20-year civil war.
The dispute over a slew of charges against the leader of the Lord’s Resistance Army, Joseph Kony — who is accused of mass murder, rape, mutilations and abducting children to become soldiers — has opened a rift between African governments, which believe trials should be subordinated to local peace deals and reconciliation, and countries such as Britain, which strongly back the ICC as establishing international justice.
The row also reflects differences seen at tribunals for Rwanda and Sierra Leone over whether international trials should take precedence.
The ICC launched its investigation into the LRA’s crimes at the urging of the Ugandan government and issued indictments against Kony and four of his commanders in 2005. Kony has demanded that the charges be dropped as a condition for a peace deal and Uganda’s President, Yoweri Museveni, wants the ICC to agree. Museveni has also promised the LRA leader immunity from arrest in Uganda.
Commitments
The ICC says governments are obliged to implement the warrants if Kony is on their territory and has reminded Uganda, Sudan and the Democratic Republic of Congo of their legal commitments.
Court officials are privately furious, not only because they risk seeing their historic first case reduced to farce, but also because they launched the inquiry at the request of the Ugandan government, which is now accusing the ICC of neo-colonialism.
Richard Goldstone, the former chief prosecutor for the Bosnia and Rwanda tribunals, which laid the ground for the ICC, said that if the charges against Kony were dropped, it could destroy the court.
“It would be fatally damaging to the credibility of the international court if Museveni was allowed to get away with granting amnesty. I just don’t accept that Museveni has any right to use the International Criminal Court like this,” he said.
“If you have a system of international justice, you’ve got to follow through on it. If in some cases that’s going to make peace negotiations difficult, that may be the price that has to be paid. The international community must keep a firm line and say are we going to have a better world because of the international court or not.”
The United Kingdom is dismayed at the prospect of the court, a favoured project of Prime Minister Tony Blair, being embarrassed. The British Foreign Office on Monday said the UK is a “strong supporter of international justice and the ICC” as an imperative to tackle impunity. It said the warrants should be enforced but recognises this is “an extremely difficult issue” and it would be best if a deal could be reached that takes into account international justice and local needs. Officials were at a loss to say what that might be.
International justice has been a source of friction between African governments and the West since the establishment of the United Nations tribunal to try those responsible for the 1994 genocide in Rwanda.
The Rwandan government wanted to put the Hutu leadership on trial itself, saying that distant and slow-paced hearings in a foreign country would not serve justice or reconciliation. However, Rwandan authorities would not have been able to arrest the leaders now held by the UN tribunal, some of whom are in jail for life.
The UN-backed tribunal in Sierra Leone has also proved contentious. Its hybrid court of foreign and local judges has brought former Liberian president Charles Taylor to justice for his role in Sierra Leone’s brutal civil war.
But the court has been strongly criticised in Sierra Leone and abroad for other trials. Peter Penfold, the former British high commissioner to Freetown, has said that prosecutions threaten a fragile peace.
Sensitive
Among the most sensitive is that of Sam Hinga Norman, the former interior minister and leader of a militia, who is on trial for crimes against humanity, including murder and recruitment of child soldiers.
Hinga Norman is a hero to many Sierra Leoneans for using his Kamajor militia to defend towns from rebels notorious for indiscriminate killings, mutilations and abduction of children. His prosecution is deeply unpopular. Hinga Norman says that as a then-serving minister, and fighting to defend the legitimate government, he was taking orders from President Ahmad Tejan Kabbah, the British-backed leader who is not on trial.
In its dispute with the ICC, Uganda points to South Africa as an example of the need to subordinate justice to ending conflict. South Africa established a Truth and Reconciliation Commission that offered amnesty in return for confession and full disclosure. Alex Boraine, the TRC’s vice-chairperson, said Nelson Mandela was forced to agree to demands for an amnesty by white officials.
“Because of the need to get a deeply divided society to a point that they could actually live together in the same land there had to be fairly significant compromises,” Boraine said.
Britain has backed the ICC in the belief that the fear of international justice will discourage the kind of crimes committed in Rwanda, Uganda and Sierra Leone in the future. But the trials to date appear to have done little to deter mass killings in the Democratic Republic of Congo by Rwandan and Ugandan forces, or Sudanese government complicity in the genocide of Darfur.
Tribunals
However, Goldstone said international justice is having an effect.
“It’s impossible to say what crimes might have been committed that were prevented because of these tribunals. But I think there is circumstantial evidence that things are changing,” Goldstone said.
He added that international trials and truth commissions also have the same goal. “If we didn’t have a truth commission [in South Africa] there’d be at least two histories: one predominantly a white history based on an interpretation by the apartheid government, which it was comfortable for white people to believe. The truth commission resulted in massive evidence coming out and really put a complete stop to the denial,” he said.
The result was similar in Rwanda even though the process was very different.
“The Rwanda tribunal put a stop to the denials of the genocide. People tend to forget that when the Rwanda tribunal began there were suggestions among many people, especially the Hutu but also many people in Europe, that this wasn’t a genocide, it was a tribal explosion that was typical of Africa. No one says that now.”
ROAD TO JUSTICE: CASE BY CASE
Rwanda
The UN Security Council established an international tribunal in Tanzania to try the political and military leaders responsible for the genocide of about 800Â 000 Tutsis in Rwanda in 1994. The Rwandan government criticised the trials as distant and slow, saying delayed justice undermined efforts to end denial of the genocide at home.
South Africa
An agreement between the failing apartheid regime and Mandela’s African National Congress subordinated justice to confession through the Truth and Reconciliation Commission. While the commission elicited hundreds of confessions, and granted amnesty to those who admitted crimes in full, it was criticised for failing to hold to account the white political and military leadership that bore primary responsibility for crimes against humanity.
Sierra Leone
United States opposition to another international tribunal led to the creation of a hybrid court of foreign and local judges to try those responsible for the worst crimes during a brutal civil war. The court indicted former Liberian president Charles Taylor for his role in the conflict and foreign pressure forced Nigeria to hand him over for trial. But the court has been accused of undermining a fragile political settlement by indicting a popular political leader whose militia played an important role in protecting towns from rebel attacks.
Uganda
The ICC, established as a permanent court in 2002 on the back of the temporary UN tribunals for Rwanda and Bosnia, handed down its first indictment for war crimes three years later, against Kony and four commanders. They are accused of crimes such as murder, rape, enslavement and using child soldiers. The ICC investigated Kony at the request of the Ugandan government, which hoped it would pressure neighbouring governments into withdrawing support for the LRA. But the Ugandan administration now wants the indictments dropped if Kony signs a peace deal. — Guardian Unlimited Â