The International Criminal Court (ICC) has indicted LRA leader Joseph Kony and four of his lieutenants for crimes against humanity and war crimes committed during their 20-year-old rebellion. The government has proposed a traditional form of justice, Mato Oput, to replace the ICC indictments. Dieu-Donné WEDI DJAMBA explores the implications such a move will have for the post-conflict Democratic Republic of Congo, where the national judicial system is in collapse, and the only alternative left for victims of war to seek justice from is the ICC. This article is the last installment of a two-part series. The first article, entitled “The Ugandan Peace Process in Perspective” was published last week.
The ICC determines whether a State’s criminal procedure, including non-party States’ criminal procedures, conforms with the principles of “due process” or not. The standard adopted by the ICC for its determination is “the minimum guarantees” provided by the International Covenant on Civil and Political Rights (ICCPR).[1] And, Mato Oput may not conform to this principle of “due processes”.
Furthermore, there is need to improve Mato Oput for it to be suitable as an alternative to the ICC. This raises the question whether still it remains a possibility to see Kony and his senior commanders standing trial under Mato Oput, because the ICC’s Rome Statute provision article 17(admissibility principle) [2] provides that a case being investigated or prosecuted by a State member can be admissible to ICC(art.17,(1)a and b) but not reversed.
Indeed, there is jurisprudence for the ICC to prosecute Kony and his senior commanders because the Ugandan government itself referred the case to the international criminal court.
It must be noted that in order for the ICC to drop a case already at the investigation, prosecution or trial phase, and for a State to continue with the same case, this will create an judicial unsafe (delay of process). It would also be important to find out what happens if once again the same case became admissible to the ICC under articles 17(1)a and b after being handed over to a concerned State by ICC under the Complementarity principle.
Therefore, if Mato Oput will apply the international law standard, it will be helpful for the future case. Secondly, Acholi people are asking for Kony and his senior commanders to be prosecuted through Mato Oput. [3] But do they (Kony and other) ask for any prosecution by Mato Oput applying an international law standard? The possibility is they may ask for amnesty in order to avoid prosecutions. I am also of the argument that even if the Mato Oput has an international law standard it would not be the best option for Kony and his senior commanders.
The withdrawal of the warrants of arrest
Another threat faced by the ICC in the Ugandan peace process is the demand to withdraw warrants of arrest against the LRA leaders, which could set an unfortunate precedent for other ICC cases.
The wanted LRA leaders want the warrants of arrest withdrawn before they will emerge from the bush to sign the peace agreement. “The ICC warrants of arrest against the LRA leaders should be dropped, so that a peaceful conclusion to talk can be reach”, said the LRA spokesman Obonyo Olweny. [4] Otti Vincent, one of the wanted LRA leaders, said in a call to a Gulu-based radio station that “Kony and I can not attend the peace talks although they wanted one of the top leaders of the LRA to attend. We are afraid of the ICC indictment on us. If you can convince the Uganda government to withdraw the case at the ICC, we are ready to come out of the bush freely”.[5] And he warned “there will be no peace deal unless international indictment for the top rebels are dropped”.[6]
Uganda has offered the five rebels leaders a blanket amnesty if they agree to a peace deal, and hinted at a possible negotiation with the ICC over the indictment. [7] The Uganda peace talks mediator, Dr Riek Machar, has taken a middle position to the LRA’s demand that warrants of arrest be withdrawn, saying “we are not telling the ICC to stop what they are doing….We are just asking them to give the peace process a chance.”[8]
Contrary to Machar’s view, the ICC’s Prosecutor, Luis Moreno Ocampo urged that the best way to finally stop the conflict is to arrest the top leaders. And he added that “Kony will eventually face the trial.”[9]
The ICC involvement in northern Uganda is viewed as a complication by all sides. While the ICC prosecutions have been an important factor in bringing the LRA and the government to the table, they now limit the options available to mediation because they and the broad international community are unlikely to accept a deal providing a broad amnesty and lacking strong justice and accountability mechanisms. At the same time, the commanders indicted by the ICC will not be interested in any deal that fails to protect them from ICC prosecution and fails to guarantee their personal safety.[10]
If the warrants of arrest are withdrawn, the question remains: who shall be blamed? Interviewed in February, senior ICC official Phakiso Mochockoko said that “The situation in northern Uganda was referred to the ICC prosecutor (Argentina lawyer Luis Moreno Ocampo) by the government of Uganda. And as a result of that, the ICC is obliged to exercise its mandate in accordance with the statute”.[11] As such it seems that cracks in the Rome Statute would need to be found before any warrants of arrest could be withdrawn.
Under article 53 of the Rome Statute, the prosecutor has the discretion to stop prosecutions that no longer serve ‘the interest of justice’. Article 53 can only be used to end, not suspend, a case. An option of last resort subject to serious constraints, it calls for the prosecutor to consider the ‘interest of justice’, not peace. This is in line with the ICC’s stated purpose articulated in the statute’s preamble, which is to end impunity and ensure prosecution of those most responsible for the gravest crimes. As such, any decision to stop a case prior to prosecution, except on the most compelling grounds, is contrary to the court’s core principles.[12]
Therefore, if for some Ugandan people (including Kony and his senior commanders) the ICC is an obstacle towards peace, the way “to give peace a chance” as Machar says, is to leave any decision to put the prosecutions on hold to the Security Council, as provided by article 16 of the Rome Statute.
This article permits the Security Council to determine that an agreement would be in the interest of peace and to require the ICC by a chapter VII resolution to defer action for renewable one-year periods, thereby suspending and not halting prosecutions.[13]
The time limitation of one year placed on the Security Council by the Rome Statute was both a recognition that article 16 should not become a back door to impunity, and a realization that the threat of not renewing a deferral gives the Security Council a tool for ensuring compliance with an agreement. Thus, even if the Council does intervene, the LRA may not be satisfied.[14]
But the Crisis Group argues that in theory, the Security Council could give de facto amnesty by promising to renew the yearly deferrals for the lives of the indicted, though such a pledge should at least be accompanied by a clear understanding that any violations by the LRA would mean a resumption of prosecutions.[15]
Article 16 of the Rome Statute does not provide any limit in terms of how many times the Security Council should renew a deferral action. This omission is a threat for the ICC as an anti impunity symbol. And any unlimited renewal one-year period in LRA leaders’ case will set a precedent for the future ICC case and for international justice.
The Blanket Amnesty
Tina Rosenberg argues that a country’s decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the national political culture and history, the conditions necessary for dictatorship to occur, the abruptness of the transition, and the new democratic government’s power and resources. She added that different countries have chosen widely different strategies to deal with the past.[16]
Among these strategies, is the granting of amnesty. This strategy is used by different countries in order to end conflict or dictatorship regimes. Samuel P. Huntington [17] distinguishes three types of democratization transitions: transformations, replacements and transplacements.
In transformations, those in power in the authoritarian regime take the lead and play the decisive role in ending that regime and changing it into a democratic system. In replacements however, democratization results from the opposition gaining strength and the government losing strength until the government collapses or is overthrown. In transplacements, democratization is produced by the combined actions of government and opposition.
In recent past, many dictatorship regimes used the amnesty strategy during transition to democracy to grant themselves a blanket amnesty such as in Chile with the Pinochet regime.[18] Others used the National Conference Forum such as in Togo with the Etienne Gnassingbé Eyadéma regime [19] , and in the DRC (former Zaire) with the Mobutu regime.[20]
However, in transplacements, the granting of amnesty has also been chosen in many countries. This amnesty could be a broader one, such in Sierra Leone [21] or conditional such as in South Africa.[22]
Thus in order to end a war conflict or a dictatorship and to establish a real democracy, many countries have chosen to grant a amnesty. Uganda is among them.
Indeed, the Ugandan president Yoweri Museveni has offered a blanket amnesty to LRA leaders in order the end the over 19 year long deadly civil war in his country. As noticed the BBC News: “Mr. Museveni clearly feels that for now, the most important thing to achieve is peace. And, in the interest of that peace, the widespread crimes of Joseph Kony’s Lord’s Resistance Army should be put to one side.’’[23]
The ICC at The Hague may disagree. The court was founded on the basis that there can be no durable peace without justice, which to some extent satisfies victims that wrong have been addressed.[24]
At a 2002 meeting to mark the fourth anniversary of the adoption of the Rome Statute, Kofi Annan, the Secretary General of the United Nation, said “The date of 17 July 1998 will long be remembered as the world finally united to bring an end to the culture of impunity”.[25] But challenging impunity does not only mean ferreting out former dictators from wherever they may be hiding in order to have them stand trial for the crimes they committed. It also means not extending amnesties to people accused of committing crimes against humanity.[26]
However, this point of view is not shared by all Ugandan people. Indeed, as noted IRIN, Ugandans are “…tired of war, most people want the rebels forgiven”. According to them, maintaining a tough stance against the rebels and fighting them has only prolonged their suffering. “We are in a mood of forgiveness. Let the International Criminal Court not spoil our party preparations”, some Ugandans have said.[27]
The ICC’s aim to close “the gap of impunity” is felt by some Ugandan people to be a threat to the peace in Uganda. Some of them do not hesitate to criticize the presence of the ICC in the Uganda peace process. An internally displaced person, Nikson Owinyi, told Jan Egeland that “The international community should tell the ICC that the Acholi people don’t like ICC in these affairs because it is holding back the peace process.”[28]
Again Peter Onega, has claimed that the decision by the international court has left their work in “total confusion”. He stated further, that “the statute establishing the ICC overrides the national laws and the court may decide to issue other warrants of arrest for people they have even issued amnesty to. …..The warrant would scare away willing rebels and frustrate the commission’s effort to negotiate for ex-rebels return”, he added.[29]
Indeed, in a bid to bring about a cessation of violence, the UAC was set up to offer a blanket amnesty to militia and soldiers. It was hoped that this amnesty would encourage them to lay down their weapons without fear of reprisal. Then in October, 2005, the ICC issued warrants of arrest against five members of the LRA in Uganda and this move effectively undid the work of the UAC.[30]
But Luis Moreno Ocampo, the Chief Prosecutor for the ICC, made himself clear on this issue when he told IRIN, “Domestic amnesties are strictly a matter for national authorities and do not act as bar to an investigation by the ICC”. Thus, the message was that at a national level, amnesties may be granted, but they will not be guaranteed at an international level.[31]
The rejection of amnesty for perpetrators of human rights abuses on the basis that such amnesties are incompatible with the principle of international law has been steadily involving the whole world. The International Criminal Tribunal for the Former Yugoslavia observed in 1998 that amnesties covering certain crimes’ “would not be accorded international legal recognition” despite having legal force in that country. Spanish and French courts have also lent their backing to this interpretation, and the inter-American court of Human Rights in 2001 stated “All amnesty provisions are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations, which are non-derogable rights recognized by international human rights law.”[32]
The UN holds the understanding that the amnesty provisions of the agreement shall not apply to the “international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law.”[33]
Indeed, the amnesty issue facing the ICC in the Ugandan peace process is an opportunity for the international justice system to show the international community as a whole that the impunity gap is closed.
Far from spoiling the peace process in Uganda, the ICC could boost it. Its deterrent effect is one of the main explanations for the sudden willingness for the LRA leaders to negotiate. They no longer have anywhere to hide. They have lost support - the southern Sudan is no longer a threat for the government of Khartoum, and they are wanted in DRC by the MONUC, the UN mission in DRC after killing eight Guatemalan peacekeepers in Eastern DRC.[34]
Often, people like Kony and other LRA leaders need to be backed against the wall before one can expect any agreement from them for a negotiated solution. Mobutu, the DRC former president accepted negotiations with Laurant Desiré Kabila, the other former DRC President, (then rebel leader) when almost ¾ of the country was controlled by the rebel group in 1997 . ‘The rebels Lords Resistance Army has called for the resumption of peace talks with the Ugandan government’ noted IRIN.[35]
As noted by the Citizens for Global solutions (CGS), Kony is exactly the type of person for whom the ICC was created. [36] Therefore, the blanket amnesty through a peace agreement becomes the last chance for a way out.
The implications of the Ugandan peace process in the Ituri District
As has been said before, DRC is affected by a deadly war which has resulted in over three million deaths and widespread displacement. The killing and other atrocities committed against the population by the national army, foreigners armies, rebel groups, and militias raises the issue of accountability of the perpetrators and reparation for the victims.
But in the DRC, the national judicial system is in collapse. According to Human Rights Watch, the DRC’s national justice system is in a state of disarray. It will likely take years to establish a functioning, independent, impartial and fair judiciary.[37] And the Commission Vérité Reconciliation (CVR) - the Congolese truth commission - established by the Pretoria Agreement with the mandate to address reparation has failed to do its work.[38]
Therefore, the ICC becomes the alternative for the thousands of victims wanting to see justice done by holding their perpetrator accountable and getting reparations owed to them.
Among the most affected by the war is the population of Ituri District in northeast DRC bordering with Uganda. This population expects prosecution of the likes of Combra Matata, leader of the Ituri Patriotic Resistence Front (FRPI), one of the active militia groups and responsible for several atrocities including rape, burning houses and killing.[39]
The Ituri people also expect prosecution of Kawa Mandro of PUSIC, an Ituri militia [40], Peter Karim of Front des nationalistes et Integrationnistes (FNI) and Mathieu Ngudjolo of Mouvement des Révolutionnaires Congolais (MRC) [41]. Already there is a concern among the population in Ituri after the government appointed two ex-militia leaders, Peter Karim (FNI) and Mathieu Ngudjolo (MRC) as colonels in the national army [42], in the name of peace.[43]
But for the victims of war in the DRC, especially in Ituri, ‘peace’ means positive peace, one in which justice is addressed, human rights are respected and people live without any fear (as opposed to a negative peace such as a ceasefire, which is negative because it stops the war but does not address other issues). [44] And this ‘peace’ has to be based on the concept of justice. There is no peace without justice. But this justice has to be taken into the transitional justice perspective.[45]
Indeed, transitional justice offers a deeper, richer and broader vision which seeks to confront perpetrators, address the need of victims and assists in the start of a process of reconciliation and transformation.[46] Therefore, the Uganda peace process is very important for the people of that country.
The ongoing peace process in Uganda is being followed with interest by both the victims and perpetrators in Ituri District. The success or failure of the ICC in the LRA leaders case will have many implications. Successful prosecution will create an expectation for several victims of similar atrocities in Ituri to see their own perpetrators held accountable for their crimes and to expect reparations. It will produce a deterrent effect to other militias who are still active in the same area. [47] Indeed, the arrest of Thomas Lubanga, one of the militia leaders in Ituri by the ICC in April this year produced a strong deterrent effect. “Many here in the East are afraid the court will come…we all now are thinking twice . We do not what this court can and will do”, confessed Xavier Ciribanya, former rebel leader of the RCD-goma and suspected of a range of crimes against civilians in both Kivus and Ituri.[48] Therefore, the ICC remains key in ending the violence and the last hope for the victims to see their perpetrators prosecuted, and to receive reparation after the complete failure of the CVR to address the issue. [49]
But, on other hand, failure will encourage the culture of impunity in Ituri District.
Indeed, the three conditions raised in the Ugandan peace process can be used by the different perpetrators in Ituri: firstly the Mato Oput option will gives people like Combra Matata who still has weapons the opportunity to escape a real trial. Secondly, the withdrawal of the warrants of arrest will give future perpetrators the chance to claim the Ugandan ICC case as jurisprudence. Finally, the blanket amnesty will be an opportunity for those prosecutable in Ituri District to extend the content of the law adopted by the DRC National Assembly which gives the CVR the power to propose amnesty for acts of war, political crimes and crimes of opinion.[50]
Conclusion
The ongoing peace process in Uganda is critical for the Ugandan people. This peace process can finally end the 19 year long deadly war which deeply affected the northern Ugandan people. But at the same time, the peace process in Uganda is critical for the ICC which faces its first test as the symbol to impunity. Furthermore the Ugandan peace process has implications for the Ituri District.
As a symbol for the ending of impunity or the closing of the impunity gap, the ICC has to stand behind its warrants of arrests. Justice has to be done. Not only for the victims in northern Uganda, but for others, including the Ituri.
The ICC is established not only for Uganda and its future will depend on what decision it takes today in order to secure tomorrow in its fight against the impunity. ‘Justice for today’s crimes supplies the legal foundation needed to deter tomorrow’s atrocities. Without justice, there is no peace’.[51]
• Dieu-Donné WEDI DJAMBA is a lawyer (Advocate)at the Lubumbashi Bar association/DRC; Consultant; Assistant lecturer in the College of Law in Lubumbashi/ DRC; Human Rights Activist and Writer. Tel:+243812485222;+27738362921 ; Fax:+18016727206 Email: [email][email protected];[email protected]
• Please send comments to [email protected] or comment online at www.pambazuka.org
References:
[1] Lijun Yang, “On the Principle of Complementarity in the Rome Statute of the International Criminal Court”,Chinese Journal of International Law (2005),vol 4,Nº1
[2] Rome Statute,]http://www.un.org/law/icc/statute/99_corr/preamble.htm> (accessed,10 September2006)
[3] IRIN,op.cit.
[4] BBC News.op.cit
[5] IRIN op.cit.
[6] BBC News.op.cit.
[7] IRIN.op.cit
[8] International Crisis Group.op.cit
[9] ibid
[10] IRIN.op.cit
[11] ibid
[12] Internatinal Crisis Group,op.cit
[13] International crisis Group.op.cit
[14] Ibid
[15] Ibid
[16] Tina Rosenberg “After word: Confronting the Painful Past”, in: Martin MEREDITH,COMING TERMS: South Africa for Truth,1999,pp328
[17] Samuel P. Huntington,“The Third Wave: Democractization in the late Twentieth Century”, ed,Nail.J.Kurty, Transition Justice,vol 1, 1995,pp65
[18] BBC News, “Pinochet profile: Saviour or Tyrant”,
[19] Wikipedia: The Historic of Togo
[20] Tyrone Savage,“The democratic Republic of Congo: Inchoate Transition, Interlocking Conflicts”,in: Erik Doxtader abd Charles Villa-Vicencio ,op.cit pp142
[21] The Lome Peace Accord.(accessed]http://www.sierra-leone.org/lomeaccord.html>(accessed 23 Octoberd 2006)
[22] Alex Boraine, “A COUNTRY UNMASKED”, Oxford University Press,2000,pp270.
[23] BBC News “Afrca’s mixed amnesty
[24] BBC News,op.cit
[25] IRIN.op.cit.
[26] IRIN.op.cit
[27] News.op.cit
[28] IRIN,op.cit
[29] Joseph Yav Katshung, op.cit
[30] IRIN,op.cit
[31] ibid
[32] ibid
[33] ibid
[34] ibid
[35] ibid
[36] ibid
[37] William W.Burke-White, “International Criminal Court, Complementarity in practice:The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo”,Leiden Journal of international Law 18( 2005),pp576
[38] William W.Burke-White,op.cit
[39] IRIN : “DRC: Recently Demobilised militiamen re-arming in volatile Ituri Distict”
[40] Radio Okapi, “George Bush ordonne le blocage des avoirs des seigneurs de guerre de la RD Congo”
[41] The DRC Defence Minister has publicly stated that the government is determined to work with the ICC to help bring war criminal to book ,after appointing the two ex-mititia, colonel in national army, in IRIN,DRC:Two militia leaders appointed army colonels,
[42] IRIN,op.cit
[43] Dieu-Donné Wedi Djamba,“Congo-Kinshasa:A strategy for Peace And Reconciliation in the DRC?”,in Pambazuka News.http://allafrica.com/stories/200610260875.html >( accessed 26 October 2006)
[44] Professor Jannie Malan used the terms “negative and positive peace” during the course session for the fellowship in Transitional Justice(2006) in Cape town/South Africa
[45] Dieu-Donné Wedi Djamba,op.cit,
[46] Alex Boraine, in: Alex Boraine and Sue Valentine, op.cit,pp25
[47] Alert.net, “More than three million Congolese dead and no one notice,say Is IRC”
[48] William W. Burke-White,op.cit.pp588
[49] William W.Burke-White ,op.cit
[50] William W.Burke-White,op.cit
[51] Kathryn Schiele “U.S RATIFICATION OF THE INTERNATIONAL CRIMINAL COURT”,in Journal of International Relations, James Madison University, Spring 2004,pp59
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