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Uganda's Civil War and the Politics of ICC Intervention

Published online by Cambridge University Press:  25 March 2011

Adam Branch
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Abstract

The International Criminal Court‘s intervention into the ongoing civil war in northern Uganda evoked a chorus of confident predictions as to its capacity to bring peace and justice to the war-torn region. This optimism is unwarranted, however. The article analyzes the consequences for peace and justice of the ICC's intervention, dividing them into two categories: those resulting from the political instrumentalization of the ICC by the Ugandan government, and those resulting from the discourse and practice of the ICC as an institution of global law enforcement.

As to the first, the article argues that the Ugandan government referred the conflict to the ICC in order to obtain international support for its militarization and to entrench, not resolve, the war; the ICC, in accepting the referral and prosecuting only the Lord‘s Resistance Army, has in effect chosen to pursue a politically pragmatic case even though doing so contravenes the interests of peace, justice, and the rule of law. As to the second, the article reveals the harmful effects that ICC intervention can have on the capacity for autonomous political organization and action among civilian victims of violence, specifically how it leads to depoliticization by promoting a political dependency mediated by international law. The article draws from this analysis disturbing implications about ICC interventions generally, and concludes by asking whether ICC practice may be reformed so as to avoid these negative consequences.

Type
Features
Information
Ethics & International Affairs , Volume 21 , Issue 2 , Summer 2007 , pp. 179 - 198
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2007

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References

Notes

1 UN Integrated Regional Information Networks (IRIN), “Uganda: ICC Issues Arrest Warrants for LRA Leaders,” October 7, 2005; available at http:\\www.irinnews.org/report.asp?ReportID=49420&SelectRegion=East_Africa&SelectCountry=UGANDA.

2 On the history of the conflict, see Heike Behrend, Alice Lakwena & the Holy Spirits: War in Northern Uganda 1985–97 (Kampala, Uganda: Fountain Publishers, 1999); Sverker Finnström, Living with Bad Surroundings: War and Existential Uncertainty in Acholiland, Northern Uganda (Uppsala, Sweden: Uppsala University Press, 2003); and Adam Branch, “Neither Peace nor Justice: Political Violence and the Peasantry in Northern Uganda, 1986–1998,” African Studies Quarterly 8, no. 2 (Spring 2005).

3 ICC, “Warrant of Arrest for Joseph Kony,” The Hague, September 27, 2005; available at http:\\www.icc-cpi.int/library/cases/ICC-02-04-01-05-53_English.pdf.

4 Human Rights Focus (HURIFO), Between Two Fires: The Plight of IDPs in Northern Uganda (Gulu, Uganda: HURIFO, 2002); and Acholi Religious Leaders’ Peace Initiative (ARLPI), Let My People Go (Gulu, Uganda: Gulu Archdiocese, July 2001).

5 Behrend, Alice Lakwena & the Holy Spirits, pp. 188–89; and Branch, “Neither Peace nor Justice,” pp. 15–18.

6 ARLPI, Let My People Go, pp. 8–10; and HURIFO, Between Two Fires, pp. 16–24.

7 United Nations World Food Programme, “WFP Emergency Report No. 41 of 2004,” October 8, 2004; available at http:\\www.reliefweb.int/rw/RWB.NSF/db900SID/JCDR-65KT9Y?OpenDocument.

8 Human Rights Watch, “Uprooted and Forgotten: Impunity and Human Rights Abuses in Northern Uganda,” Human Rights Watch 17, no. 12(A) (September 2005); available at http:\\hrw.org/reports/2005/uganda0905/.

9 UN IRIN, “Uganda: 1, 000 Displaced Die Every Week in War-torn North,” August 29, 2005; available at http:\\www.aegis.com/news/IRIN/2005/IR050886.html.

10 See Articles 13 and 17 of Protocol Additional II to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts; available at http:\\www.unhchr.ch/html/menu3/b/94.htm.

11 See the text of his Sydney Peace Prize Lecture, “Saving Our Children From the Scourge of War,” Daily Monitor (Kampala), January 8–9, 2006; available at http:\\www.essex.ac.uk/armedcon/story_id/000290.html.

12 Finnström, Living with Bad Surroundings, pp. 149–61; and Branch, “Neither Peace nor Justice,” pp. 2–8.

13 “Girls Escape Ugandan Rebels,” BBC News Online, June 25, 2003; available at http:\\news.bbc.co.uk/2/hi/africa/3018810.stm.

14 Government of Uganda, “Referral of the Situation Concerning the Lord's Resistance Army,” Kampala, December 2003, para. 6.

15 See Leslie Vinjamuri and Jack Snyder, “Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice,” Annual Review of Political Science 7 (May 2004), pp. 352–56.

16 ICC, “Statement by the Chief Prosecutor on the Uganda Arrest Warrants,” The Hague, October 14, 2005, p. 7; available at http:\\www.icc-cpi.int/library/organs/otp/speeches/LMO_20051014_English.pdf. See also Tim Allen, War and Justice in Northern Uganda (draft) (London: Crisis States Research Centre, February 2005), pp. 58–59; available at http:\\www.crisisstates.com/download/others/AllenICCReport.pdf.

17 Katherine Southwick, “Investigating War in Northern Uganda: Dilemmas for the International Criminal Court,” Yale Journal of International Affairs (Summer/Fall 2005), p. 108; available at http:\\www.yale.edu/yjia/articles/Vol_1_Iss_1_Summer2005/SouthwickFinal.pdf.

18 UN IRIN, “Uganda: ICC Indictments to Affect Northern Peace Efforts, Says Mediator,” October 10, 2005; available at http:\\www.irinnews.org/report.aspx?reportid=56654.

19 Cited in Adam Branch, “International Justice, Local Injustice,” Dissent 51 (Summer 2004), p. 24; available at http:\\www.dissentmagazine.org/article/?article=336.

20 UN IRIN, “Uganda: ICC Indictments to Affect Northern Peace Efforts.” For a comprehensive treatment of the effect of the ICC arrest warrants on the peace process, see Southwick, “Investigating War in Northern Uganda,” pp. 110–13.

21 For more on the Amnesty Act, see Lucy Hovil and Zachary Lomo, “Whose Justice? Perceptions of Uganda's Amnesty Act 2000: The Potential for Conflict Resolution and Long-Term Reconciliation,” Refugee Law Project Working Paper No. 15 (Kampala, Uganda: February 2005); available at http:\\www.refugeelawproject.org/resources/papers/workingpapers/RLP.WP15.pdf.

22 ICC Press Release, “President of Uganda Refers Situation Concerning the Lord's Resistance Army (LRA) to the ICC,” The Hague, January 29, 2004; available at http:\\www.icc-cpi.int/pressrelease_details&id=16&l=en.html.

23 “U.S. Lawyer to Probe Kony,” Monitor (Kampala), February 5, 2004.

24 “Museveni Wants to Hunt LRA in Congo,” New Vision (Kampala), June 19, 2006; available at http:\\www.newvision.co.ug/D/8/13/504856.

25 International Crisis Group (ICG), “A Strategy for Ending Northern Uganda's Crisis,” Africa Briefing No. 35 (Nairobi/Brussels, January 11, 2006), p. 12; available at http:\\www.crisisgroup.org/home/index.cfm?l=1&id=3864.

26 Refugee Law Project, “Behind the Violence: Causes, Consequences, and the Search for Solutions to the War in Northern Uganda,” Refugee Law Project Working Paper No. 11 (Kampala, Uganda: February 2004), p. 28; available at http:\\www.refugeelawproject.org/resources/papers/workingpapers/RLP.WP11.pdf.

27 Finnström, Living With Bad Surroundings, p. 155.

28 See Mohamed M. El Zeidy, “The Principle of Complementarity: A New Machinery to Implement International Criminal Law,” Michigan Journal of International Law 23 (Summer 2002), pp. 897–905; ICC Office of the Prosecutor, “Informal Expert Paper: The Principle of Complementarity in Practice (2003); available at http:\\www.icc-cpi.int/library/organs/otp/complementarity.pdf; and J. T. Holmes, “Complementarity: National Courts versus the ICC,” in Antonio Cassese et al., eds., The Rome Statute of the International Criminal Court: A Commentary (New York: Oxford University Press, 2002), pp. 667–86.

29 Rome Statute of the International Criminal Court, Preamble, paras. 4 and 6; available at http:\\www.un.org/law/icc/statute/romefra.htm.

30 Sverker Finnström, “No-peace-no-war in Uganda,” News From the Nordic Africa Institute 1 (January 2005), p. 11; available at http:\\www.nai.uu.se/publications/news/documents/news1_2005.pdf.

31 Mahnoush H. Arsanjani and W. Michael Reisman, “The Law-in-Action of the International Criminal Court,” American Journal of International Law 99, no. 2 (2005), p. 397; available at http:\\www.asil.org/ajil/ajil046.pdf.

32 Ibid.

33 Ibid., p. 395.

34 El Zeidy, “The Principle of Complementarity,” p. 899.

35 Public statement at Uganda Human Rights Commission's conference on “The Implications of the ICC Investigations on Human Rights and the Peace Process in Uganda,” Kampala, Uganda, October 5, 2004.

36 ICC, “Statement of the Chief Prosecutor on the Uganda Arrest Warrants.”

37 “UN Criminal Court to Target Uganda Rebels, DR Congo Militia,” AFP, February 8, 2005; available at http:\\www.monuc.org/news.aspx?newsID=5480.

38 Interviews, James Otto, Director, Human Rights Focus, Gulu, Uganda, November 5, 2005; and UN IRIN, “Amnesty and Peace Groups Urge ICC to Probe Government Army Too,” February 3, 2004; available at http:\\www.globalsecurity.org/military/library/news/2004/02/mil-040203-irin03.htm.

39 Ronald R. Atkinson and Sverker Finnström, “Uganda's Moment for Peace,” Opinion, International Herald Tribune, August 9, 2006; available at http:\\www.iht.com/articles/2006/08/09/opinion/edatkins.php.

40 The Ugandan case puts into doubt the general validity of the claim made by Jamie Mayerfeld that the ICC will promote democracy and democratic institutions; see Jamie Mayerfeld, “The Democratic Legacy of the International Criminal Court,” Fletcher Forum of World Affairs 28, no. 2 (Summer 2004), p. 147; available at faculty.washington.edu/jasonm/mayerfelda.pdf.

41 See Makau wa Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania Press, 2002).

42 This approach is inspired by the approach of Michel Foucault; for his account of the form of criminal justice, see “On Popular Justice: A Discussion with Maoists,” in Colin Gordon, ed., Power/Knowledge: Selected Interviews and Other Writings, 1972–1977 (New York: Pantheon, 1980), pp. 8–9.

43 See ICC, “Statement by the Chief Prosecutor on the Uganda Arrest Warrants.”

44 The ICG proposes a bounty on Kony's head; see ICG, “A Strategy for Ending Northern Uganda's Crisis,” p. 11.

45 For more on the LRA's politics, see Finnström, Living with Bad Surroundings; and Branch, “Neither Peace nor Justice.”

46 There is a vast literature on this subject: Dennis Pain, “‘The Bending of the Spears’: Producing Consensus for Peace and Development in Northern Uganda” (London: International Alert and Kacoke Madit, 1997); Chris Dolan,

“‘Bending the Spears’: Notes on Dennis Pain's report to International Alert,” COPE Working Paper 31 (2001); Lucy Hovil and Joanna R. Quinn, “Peace First, Justice Later: Traditional Justice in Northern Uganda,” Refugee Law Project Working Paper No. 17 (Kampala, Uganda: July 2005); available at http:\\www.refugeelawproject.org/resources/papers/workingpapers/RLP.WP17.pdf; and Liu Institute and Gulu District NGO Forum, “Roco Wat I Acholi: Restoring Relationships in Acholi-land: Traditional Approaches to Justice and Reintegration” (Vancouver, B.C.: September 2005); available at http:\\www.ligi.ubc.ca/admin/Information/543/Roco%20Wat%20I%20Acoli-20051.pdf.

47 Allen, War and Justice in Northern Uganda. See also International Center for Transitional Justice and The Human Rights Center, “Forgotten Voices: A Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda” (Berkeley: University of California, July 2005); available at http:\\www.hrcberkeley.org/download/Forgotten_Voices_Report.pdf.

48 Allen, War and Justice in Northern Uganda, p. 66.

49 Ibid., pp. 85–86.

50 Ibid., p. 83.

51 Hovil and Quinn, “Peace First, Justice Later,” p. 31.