Monday June 13, 2005 - Joseph Kony, the leader of the Lord's Resistance Army [LRA, the rebel movement in northern Uganda], and another LRA chief would be the object of the first arrest warrants issued by the prosecutor of the International Criminal Court [ICC], the French daily Le Monde revealed on 10 June. For the last two months, the silence surrounding the maturation of the Uganda file has generated much speculation over the strategies being pursued.
«In working towards an end to violence, all parties [have] agreed to continue to integrate the dialogue for peace, the ICC and the processes of traditional justice and reconciliation.» Such was the conclusion of the 18 April joint declaration between the ICC Prosecutor, Luis Moreno Ocampo, and representatives from Ugandan civil society visiting The Hague [see IJT n=B0 24]. The prosecutor's message was clear: «As soon as there is a solution to end the violence and if the prosecution is not serving the interests of justice, then my duty is to stop the investigation».
Since April, discussions at the Office of the Prosecutor (OTP) have focused on an interpretation of notions such as «complementarity» and «the interests of justice» in the Ugandan context. Prosecutor Moreno Ocampo and one of his legal officers Darryl Robinson are keen to move beyond so-called «negative complementarity» - where the ICC is seen as an institution of last resort - to a new concept of «positive complementarity». This is aimed at actively encouraging national systems to rebuild and reform their legal institutions themselves. By sharing information, training staff and providing other forms of direct assistance, this complementarity «could have a ripple effect», says Robinson.
The drafters of the Rome Statute expected a hostile relationship between ICC prosecutors and the states or armed groups under investigation. «But one of the aims of positive complementarity», Robinson told an audience of scholars of international law at the Asser Institute in The Hague, «is to plug yourself into every partner in the conflict, not just one. Thus all parties can see the investigators as independent and the investigators can benefit from the cooperation. By offering support, an interdependence is established.» The OTP lawyer even said it might be possible «to establish a warm and fuzzy partnership within those countries with all parties to a conflict».
«He wants to be a conflict solver»
Shortly after his appointment, Moreno Ocampo said that «the involvement of the prosecutor will be an incentive to stop the killing». But today he appears more worried about the damage his investigations in Uganda could do to victims and to any peace process. Such behaviour is sometimes seen as a weakness in The Hague. «Moreno should start doing his job», said one exasperated member of the ICC registry. «He should be tougher, is too cautious, and wants to be a conflict solver.» A Swiss prosecutor at the ICTY, Stefan Wäspi, reacting to Robinson's description of the OTP policy, strongly advised Moreno Ocampo to be «robust». «A prosecutor can't be too pushy. Judges will want to do a case, they want to see evidence. The prosecution should be rapid and concise.» Robinson's reply was that «the new approach was chosen after long internal discussions. It is a misunderstanding that it is justice versus peace. We are part of a peace process. At first only the Ugandan government was pro-investigations and prosecution. But after the delegations from Northern Uganda went to The Hague, they went home and everything turned around. Now they say they want justice.»
The ICC statute allows the prosecutor to halt an investigation in the interests of justice. For Moreno Ocampo, «victims come first» and their security is a factor in justice. During a meeting at the Dutch Ministry of Foreign Affairs in The Hague on 18 May, he confided: «All this is new. In five years, we'll have developed clear standards for this kind of situation. If I stopped the investigation in Uganda now, I could monitor the peace process there myself and if it is not satisfactory, I could start the investigation again.» The prosecutor also said he did not want to suspend the Ugandan investigation for much longer. Having observed the so-called peace process for two months now, he considers a longer suspension to be «too much of a burden for both the victims and [his] own people». Earlier, on 7 May, he had told an Argentine newspaper La Nacion: «I cannot provide immunity, but I can concede time, something very important. If there are no more justice-related reasons or life-threatening risks for victims, I have to re-open a case and investigate it.»
When the delegations from nothern Uganda came to The Hague, one of their aims was to give the prosecutor an insight into traditional methods of reconciliation in their communities. Rwot David Onen Acana II, chief of the Acholi, told AFP, that «issuing arrest warrants against rebel leaders will be the final nail in the coffin of the peace process». According to him, in Gulu the first child soldiers dared to come out of the bush for cleansing rituals, reported the New York Times. Recently, 28 men who had defected from the rebel army, after having killed, maimed, raped and pillaged, came together and formed a line on a hill. One after the other, they stuck their bare right foot into a freshly broken egg, symbolising innocence, brushed themselves against the branch of a pobo tree and stepped over a pole. They had thus symbolically dipped themselves in innocence, cleansed themselves and stepped back into the community. After this ritual, compensation is then paid to the victims' relatives in the form of cows, goats and sheep.
Uganda's government has explicitly accepted these rituals as peace strategies. But in a November 2004 press release, Amnesty International warned that Museveni is trying to use the reconciliation rituals as an excuse to withdraw his referral to the ICC.
«We need the ICC's assistance to get the Sudanese government to cooperate with us.»
In an interview with the IRIN news agency on 10 June, Museveni made his strategy clear: «The involvement of the ICC in hunting Kony [the leader of the Lord's Resistance Army] is very important, mainly because it enables us to deal with Khartoum. Khartoum is fully aware of the consequences of dealing with somebody under the ICC's indictment. If Kony is in Uganda or in the areas of Sudan where Khartoum has allowed us to operate, then we do not need assistance - we shall catch him ourselves. But if Kony goes deeper into Sudan, beyond where Sudan has allowed us to pursue him, we need the ICC's assistance to get the Sudanese government to cooperate with us and help us to get him. That is why we need the ICC.» Using the carrot and stick method, Museveni also reiterated that if Kony handed himself in, he would be amnestied.
The joint press release issued by Moreno Ocampo and the Ugandan delegations after the meeting of 16 April 2005, emphasized «peace», «reconciliation» and the necessity of «working together». The Ugandan delegates later said they had not discarded the notion of justice altogether. Four days after that, the MP Jesca Erivo told the BBC: «We are not saying that the ICC should stop prosecuting Kony, as has been reported in the media. We want justice done to him and whoever is masterminding the war in Northern Uganda, because these are all acts against humanity.»
Moreno Ocampo seems to be listening once again. On 9 June, he told Reuters that he hopes to submit details of the Ugandan file to the ICC pre-trial chamber before the end of 2005. «If the court issues a warrant, maybe it is a good time for Sudan to show cooperation, and to hand over Kony,» he said. This would seem to be exactly what Museveni has been waiting for.
=A9 Justice Memo - 2005.
International Justice TRIBUNE
Justice Memo SARL
94 rue de Lévis
75017 Paris - France
Tel-fax: 33 (0)1 44 40 23 96
Mobile: 33 (0)6 61 81 68 89