OneWorld.net (U.S.)

Northern Uganda is emerging from a brutal 21-year civil war between the Lord’s Resistance Army (LRA) and the central government. No one knows for sure how many people have died, but estimates run into the tens of thousands. In a report published March 2006, Oxfam recounted that an average of 146 people died per week as a result of the conflict. This figure was, at the time, three times higher than that of Iraq. Close to 90 percent of the region's population have, at some point, been forced to reside in impoverished internal displacement camps for relative safety.

Currently, there is a ceasefire. Peace talks commenced in July 2006. Two months ago, an agreement is said to have been reached on accountability. Details of this arrangement are, however, not available. This is hardly surprising. The issue of accountability, and in particular the role of the newly established International Criminal Court (ICC), has troubled and stagnated the peace process so far, creating more problems than solutions. Because of this, the value of the Court, whose inauguration was beheld by many as a giant step towards full recognition that global justice must be served, is now being put in serious question.

In December 2003, the president of Uganda, Yoweri Museveni, referred the situation concerning the LRA to the ICC. One and a half years later, "after thorough analysis of available information," ICC Chief Prosecutor Luis Moreno-Ocampo decided to open the case.

In May 2005, Moreno-Ocampo applied for "sealed" (i.e. secret) arrest warrants for crimes against humanity and war crimes against five senior commanders of the LRA: Jospeh Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen. The judges, residing in the pre-trial chamber II of the ICC, accepted the requests, and warrants were issued in July of that year. These were officially "unsealed" (i.e. made public) in October 2005.

The arrest warrants against the LRA were the first made by the ICC since its inception on July 1, 2002. They received international praise. The EU High Representative for Common Foreign and Security Policy, Javier Solana, described it as a "historic decision...which expresses the Court’s wish to put an end to the impunity in a region that suffered so much from grave human rights violations." Then-UN-Secretary-General Kofi Annan said the indictments would "send a powerful signal around the world that those responsible for such crimes will be held accountable for their actions."

Yet, since the warrants were made public, the Court has come under severe criticism, both locally and internationally. Human rights groups argue that government troops must also be held accountable for their role in the conflict; peace workers are concerned that the Court’s arrest warrants are disrupting the peace process; the family of Dominic Ongwen claim that he is a victim and not a criminal, given that he is a former child abductee.

When the indictments were unsealed, the director of the International Justice Programme at Human Rights Watch, Richard Dicker, called on the court to investigate abuses by the government army, known as the Uganda People’s Defence Force (UPDF). Asked about this by Dr. Tim Allen, reader at the London School of Economics, the ICC replied: "The UPDF has been investigated, but alleged crimes perpetrated by the Ugandan government were not grave enough to reach the threshold. We focus on the gravity of the crime." The ICC has a limited mandate (and budget). For this reason, crimes committed must of an exceptional magnitude. Non-profit advocacy group Human Rights First, however, outlines numerous offenses carried out by the Ugandan government that fall very clearly under the Court’s jurisdiction. These include forcible transfer of population, torture, rape, and child recruitment.

Those involved in the peace process have also been quick to criticize the ICC. "This is like a blow to the peace process. The process of confidence-building has been moving well, but now the LRA will look at whoever gets in contact with them as an agent of the ICC," said Archbishop Odama of northern Uganda’s Gulu Catholic Archdiocese. Both Gulu District chairman Norbert Mao and Dr. Riek Machar, chief mediator of the Juba peace initiative, argue that the ICC must withdraw the LRA arrest warrants and allow for a traditional Acholi system of justice that emphasizes apology and forgiveness. "What would be the point in taking these LRA leaders to a prison in Sweden? Would that be a definition of justice for us?" asks Mao.

Further criticism has recently been expressed by Akot Madelena, Dominic Ongwen’s aunt, who looked after him when his mother died. Ongwen, now reported to be commander of the LRA’s Sinia Brigade, has been charged with three crimes against humanity (murder, enslavement, and inhumane acts of serious bodily injury and suffering) and four war crimes (murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, and pillaging). Madalena, however, describes him to Independent journalist Lucy Hannan as a "lost child." Ongwen’s cousin, Kilama Christopher, recounts the day that Dominic was captured by the LRA on return from work. "We were coming from digging and a group of men with guns took Dominic," he said. "They took him because he was the biggest." He was 10 years old. The year was 1986.

Ongwen’s case blurs the line that separates victims and perpetrators into polarized categories. If caught and found guilty on all seven counts, Ongwen will be the first former child abductee incarcerated by an international judicial body. He will receive certain life imprisonment. His life will, in effect, be over. Given the circumstances, can this really be recognized as justice?

The ICC is on a steep learning curve. The Court’s perceived bias towards the Ugandan government is difficult to ignore -- this impression was not helped by Moreno-Ocampo’s imprudent decision to announce the Court’s intercession in Uganda at a joint press conference with Museveni. Right now, Thomas Lubanga is in The Hague, accused of recruiting child soldiers during the Second Congo War. Child recruitment is one of many allegations that have been made against the Ugandan government. For now, the Court’s independent judiciary and impartiality have been considerably tainted. This, along with vocal opposition by local peace workers and the family of Dominic Ongwen, leave the ICC in a tough position.

Nevertheless, I am still positive. The ICC is a macro institution. It cannot be all-encompassing and will always be in the process of becoming. That is, it cannot (and will not be able to) establish a universal blueprint for action that will be sufficiently applicable to every unique situation, and it is (and will continue to be) ceaselessly learning and re-learning. Heavy criticism is expected -- so too is renewal. It affects people’s lives, and they will, and have every right to, have their say. In fact, more than that, their say is an absolute priority.

The key to the ICC’s survival in Uganda is, I believe, to listen carefully to the voices on the ground and to be self-reflexive. This is simple, but frequently overlooked, advice. A self-reflexive approach is not, as many would see it, a toothless and incompetent position that compromises the Court’s core values. It is a position that puts people first and one that engages in the realities of an ever-changing and diverse social and political world. If the Court is be a success story in Uganda then it must adapt to Uganda.

One option might be to absorb traditional Acholi procedures, as practiced in the north of country, into the ICC -- or vice versa. This might require certain compromises with regard to LRA prosecutions, but so long as the peace process keeps moving, and the principles articulated in the Court’s statute are being met, then it would be a noteworthy move in the right direction. This grassroots, participatory method would serve better than the Court’s current approach, which appears to be determined more by a desire to establish judicial credibility in the international arena, than to satisfy the present needs of the people of Uganda.

Gareth McKibben is a postgraduate international politics student at the University of Manchester in the United Kingdom. He is currently carrying out fieldwork in Gulu, Uganda, and is a former intern with OneWorld in the United States.