Air or Water, Part II

Click here for Part I

Part II: Vital Voices

“Justice is an indispensable ingredient of the process of national reconciliation. It is essential to the restoration of peaceful and normal relations between people who have had to live under a reign of terror. It breaks the cycle of violence, hatred and extra-judicial retribution. Thus Peace and Justice go hand-in-hand.”

–Antonio Cassesse, former President of the International Criminal Tribunal for the former Yugoslavia (ICTY) , November 1995.

Fast forward twelve years and two continents since Judge Cassesse’s famous words at the signing of the Dayton Peace Accords. Northerners want justice for past atrocities. Victims continue to demand justice. Female victims demand justice. These were the news headlines after the release of two field studies conducted by the United Nations (U.N.) and the International Center for Transitional Justice (ICTJ) on Northern Ugandans’ attitudes toward peace and justice. Both reports found through interviews and other firsthand fact-finding that the vast majority of Northern Ugandans are not willing to go without justice as their government and the Lord’s Resistance Army (LRA) participate in on-again, off-again peace talks to end the twenty-year civil war. Let me repeat that for all of those well-intentioned folks who have been fueling the misleading and counterproductive peace versus justice debate: No peace without justice. And equally true, no justice without peace. Demanded by Northern Ugandans themselves. Perhaps now we can move on to a more nuanced debate, starting with what kind of justice do Northern Ugandans want?

Here again peace and justice advocates alike should pause before repeating the mistake of speaking on behalf of Northern Ugandans as we push for our respective agendas from our neat little offices in D.C., New York, and London. Any conflict resolution expert worth his/her salt will tell you that a sustainable, deep-rooted peace must first and foremost give voice to the affected population. The U.N. and ICTJ reports make this point clear and depict the painfully obvious need for peace and justice advocates to step outside of a black and white approach to this incredibly complex conflict and focus instead on the synergy between peace and justice (that’s and, not or). For an international justice (IJ) advocate, this means recognizing that nowhere in the reports does any one justice mechanism—from criminal prosecutions at the International Criminal Court (ICC) to traditional Acholi cleansing rituals—fully satisfy Northern Ugandans. The ICC has been investigating LRA atrocities for three years now and has issued arrest warrants for the LRA leadership, including founder Joseph Kony. According to the ICTJ report,

“Prosecutions were seen [by Northern Ugandans] as the best mechanisms to deal with those responsible for the [gravest] crimes, including domestic prosecutions (28%) and prosecution by the International Criminal Court (29%). Approximately 60% of respondents had previously heard of the ICC, and 67% believed that the ICC should be involved in responding to the atrocities that have been committed in Northern Uganda.”

But thanks to Ugandan President Museveni’s political craftiness and the LRA’s manipulation of the ongoing peace talks, a significant percentage of Northern Ugandans also worry that the ICC’s arrest warrants for the top LRA leadership will interfere with the current peace talks. This very real and understandable sentiment should not, however, be exploited by others to justify an anti-ICC stance—Northern Ugandans themselves have made clear that justice delayed is justice denied. The problem here is not an impartial international criminal court that is committed to making Northern Ugandans’ demands for justice a reality. The problem here is the brazen lack of genuineness with which both President Museveni and the LRA are “negotiating” peace on behalf of Northern Ugandans.

The LRA’s continued demands for the ICC arrest warrants to be dropped cannot come as a surprise to anyone. After all, which war criminal has ever wanted to end up in a jail cell for twenty years’ worth of amputated limbs, summary executions, and the mass terrorizing of an entire region??? But less obvious is President Museveni’s agenda—a former rebel turned leader whose presidential tenure is as long as his war with the rival LRA. Since the involvement of the ICC, President Museveni has pushed for the LRA’s prosecution at the ICC, then retreated to promising blanket amnesty to the LRA leadership, and now proposes domestic “courts” in lieu of the ICC to try the LRA. Why is that? Well there is the pesky little detail of Museveni’s own military, the Uganda People’s Defense Forces (UPDF), being just as complicit in the civil war in the Northern as the LRA has been. So much so that in both the U.N. and ICTY reports, Northern Ugandans overwhelmingly demanded UPDF perpetrators to be held accountable for their crimes as well.

But Museveni has made no mention of accountability for his own forces. Rather, he has continued to portray the ICC arrest warrants—which he himself sought when he referred the case to the ICC—as the major obstacle now to securing a peace agreement with the LRA. And yet Article 16 of the ICC’s treaty expressly allows for a U.N. Security Council-invoked renewable suspension of any ICC investigation. So if President Museveni truly believes that the Court’s arrest warrants are impeding the peace talks, he is well within his legal rights to invoke Article 16. Instead, in the two years since the ICC’s issuance of the arrest warrants, President Museveni has never attempted to follow a simple legal procedure that would demonstrate his good faith to both the Ugandan people and the international community. These days Museveni has abandoned his rhetoric of amnesty and is instead suggesting the creation of domestic courts to try the LRA leadership and other lower-ranking perpetrators. Creating domestic Ugandan courts to try the LRA would be a welcome development–ideal in fact, given the limited mandate of the ICC. But in the words of Human Rights Watch’s Elise Keppler and Richard Dicker,

“[A]ny national alternative to an ICC trial must demonstrate a genuine ability and willingness to conduct the investigation or prosecution. There will also be a need for other mechanisms to ensure accountability: trials for lesser offenses, a truth commission, and, where appropriate, traditional justice measures.”

“Genuine ability and willingness” means putting the needs of Northern Ugandans first. It means recognizing that when it comes to those LRA leaders most responsible for the worst crimes committed during the civil war, the ICC is still the most viable (and impartial) venue. It means committing to investigating and prosecuting UPDF war crimes in addition to the slew of lower-ranking LRA rebels in any future domestic court. And it means special considerations for child soldiers and others forcibly recruited by the LRA. Simply put, it means good faith on the part of Museveni’s government to deliver its people both peace and justice. But my guess is that a government that can’t demonstrate its commitment to the rule of law—another cornerstone of peaceful societies—cannot be trusted to negotiate or honor a peace agreement, much less provide justice for a people who desire and deserve it most.

Last week, the State Department’s Assistant Secretary for African Affairs, Dr. Jendayi E. Frazer, remarked on growing U.S. impatience with the Northern Uganda peace talks and remarked that if the talks fail, then the U.S. will support the LRA leadership’s arrest and transfer to the ICC. I would like to humbly point out to Dr. Frazer that we should already be cooperating with the ICC to enforce the arrest warrants against four of the most brutal war criminals in the world—the LRA leadership is no less guilty of war crimes simply because it is humoring peace talks at the moment. Furthermore, President Museveni himself has repeatedly made the same “if no peace then ICC warrants” argument. But using the ICC arrest warrants as a stick when they suit you and discrediting them when they don’t isn’t doing anyone justice. Still, I commend Dr. Frazer for recognizing the significant role that the ICC arrest warrants can play in ending the violence in Northern Uganda—allowing Museveni and the LRA to exploit the peace talks for more time and bargaining chips would be tantamount to seeking Northern Ugandans’ voices only to have them fall on deaf ears.

If human beings are to survive and thrive, we must have our most basic needs: air, water, peace and justice. For the people of Northern Uganda, twenty years is too long to go without the last two. The peace versus justice debate is a classic red herring used by rebels and leaders alike who don’t find either peace or justice to suit their interests. It’s time to stop indulging them.

• Click here to read the full ICTJ Report, “Attitudes about Peace and Justice in Northern Uganda.”
• Click here to read the full U.N. Report, “Making Peace Our Own: Victims’ Perceptions of Accountability, Reconciliation, and Transitional Justice in Northern Uganda.”
• Check out IJ Wire for latest news on the Northern Uganda situation.