Why the ICC should Think Twice before Investigating Conflicts with Roots Before 2002

A UPDF soldier disperses a crowd of protestors during the post-election tensions in 2011 (Photo: Tony Karumba/AFP/Getty Images)

Many readers will know that I am spending three months conducting research on the effects of the International Criminal Court’s investigations and arrest warrants on the conflict between the Government of Uganda and the Lord’s Resistance Army (LRA). As previously elaborated in another post, I believe that the case of Uganda provides us with the best chance to understand the tensions between pursuing international criminal justice and conflict resolution. In 2003, the Ugandan President Yoweri Museveni referred the situation in northern Uganda to the ICC. A year later, the Court issued arrest warrants for four senior commanders of the LRA, including its notorious leader, Joseph Kony.

Over the past few weeks, I have had the opportunity to speak to numerous political, civil society, and religious leaders. My experiences have led me to be increasingly convinced that the Court should be wary of investigating situations which began long before the Court came into being in 2002.

The ICC’s Rome Statute is clear with regards to the temporal jurisdiction of the Court: no crimes under the statute which have occurred prior to July 1,2002 can be investigated by the ICC. For many of the Court’s interventions, this is largely unproblematic. The vast majority of the crimes committed in Darfur occurred after 2002; ditto for other situations, including Cote D’Ivoire, Kenya and Libya. In Uganda, however, the conflict between the LRA and the Government of Uganda began in 1986, over 15 years prior to the creation of the ICC and the date at which it can begin investigating international crimes.

This problem becomes only more acute because of allegations that many atrocities against the Acholi people of northern Uganda were committed by Ugandan military forces, the UPDF, during the conflict. Virtually every individual with whom I have spoken, regardless of whether they support the Court or not, has voiced their their concerns that the ICC is biased against the LRA. Many know about the limited temporal jurisdiction of the ICC but ask: why, then, is the ICC involved? As Adam Branch, amongst the most eloquent and thoughtful critics of the ICC’s role in Uganda, notes:

given that the conflict reaches back to 1986, the ICC’s limited temporal jurisdiction makes the court a highly inappropriate vehicle for finding justice in response to this legacy of violence, especially since much of the most atrocious violence took place before 2002. Indeed, this time limit, while legally unassailable, has been criticized by a number of Acholi leaders and activists for establishing an arbitrary barrier that leaves the bulk of the war beyond the reach of justice.”

I can say with confidence that the above is an honest reflection of what those I have spoken to believe.

A child soldier in northern Uganda. The LRA has been notorious for abducting children who are then put at the front lines of their military efforts.

There are two fundamental dangers which the Court faces when it investigates situations with the life-span and dynamics such as the conflict in northern Uganda.

First, the Court will have incredible difficulties in contributing to peace in such contexts. For meaningful and lasting peace to be established and maintained, both the causes and the dynamics of conflict must be resolved. But by focusing on only a sliver of the life-span of a conflict, the ICC acts to readjust how the international community understands, frames, and ultimately attempts to resolve the war. Roots causes and key moments when altered dynamics are ignored because they occurred prior to 2002.

The second, and more obvious, danger that the ICC faces is one of selectivity. By virtue of being bound to its temporal jurisdiction, in Uganda the Court could not investigate allegations of the gravest of crimes committed by the UPDF which occurred prior to 2002. As noted above, the people of northern Uganda see this as tilted and biased justice. It has been said many times that it is not sufficient for justice to be done; it must be seen to be done. If the Court is seen to be biased it hurts its own cause and mandate.

An LRA combatant (Photo: AFP)

Some have mentioned that the Court should investigate alleged crimes committed by government forces since 2002. According to the Office of the Prosecutor, these crimes remain univestigated because they do not meet the gravity threshold required to open an official investigation. Others, however, fear that this is a political calculation on the part of the OTP. If it were to investigate government troops , the Court could lose a valuable ally in the Government of Uganda as well as the continued ability to work in Uganda. The OTP put a lot of eggs in the Uganda basket, convinced – and rightly so – that Kony would be a huge catch for the Court. This is true even more so today. Getting Kony in the dock would be a political coup for the Court and a notch on its belt in defense of its sharpest critics, especially the African Union.

Barring an effective admissibility challenge (one has already been attempted, unsuccessfully) to drop the warrants against LRA commanders, the ICC is in Uganda to stay. Uganda was, in many respects, a test case for the ICC and it is notable that Museveni’s referral was, in large part, the result of OTP pressure on the Government of Uganda to become the first state to refer a situation to the Court. As a test case, Uganda has had to suffer the imperfections and growing pains of the ICC.

The case of Uganda demonstrates an essential lesson for international criminal justice and the “fight against impunity”. Uganda vividly illustrates the need for the ICC to be cautious about the conflicts it seeks to become involved in. In particular, the Court should think twice before it intervenes in conflicts whose life-spans, causes, dynamics and atrocities do not fit neatly into the Court’s temporal jurisdiction.

Please check out Xavier Rauscher’s piece in response to this post here

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in African Union (AU), Human Rights, ICC Prosecutor, International Criminal Court (ICC), Justice, Peace Negotiations, Uganda. Bookmark the permalink.

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