Even though much of the literature on Transitional Justice still focuses on unhelpful dichotomies like peace versus justice or trials versus amnesties the concepts that are being applied to tackle the legacies of violent conflicts in practice are increasingly comprehensive. With comprehensive approaches I mean transitional justice concepts that acknowledge the need for different approaches to meet the various challenges that societies in transition from conflict face. Key issues that are often named in the context of transitions from conflicts are reconciliation, reintegration, accountability, creating a historical record, meeting the needs of victims etc. Recognising these issues and dealing with them is seen as important to advance towards a durable peace. This approach is in line with the notion of positive peace originally introduced by Johan Galtung.
Positive peace is more than the absence of violence. It also takes into consideration in how far the root causes of conflicts have been tackled and whether the relationship between former conflict parties has become constructive instead of confrontational. Still, there is no consensual definition of positive peace. Scholars agree that positive peace is incompatible with all forms of terror, atrocities and arbitrariness. In its widest definitions it excludes all forms of personal or structural violence and demands justice, integration and satisfaction of the fundamental needs of the people. To meet this threshold of positive peace, the issues of reconciliation, accountability and so on mentioned above have to be dealt with. This is increasingly being recognised by international actors like the United Nations. For example, then Secretary-General Kofi Annan stated in his report on ‘The rule of law and transitional justice in conflict and post-conflict societies’:
‘Our experience confirms that a piecemeal approach to the rule of law and transitional justice will not bring satisfactory results in a war-torn or atrocity-scarred nation.’
When it comes to meeting the needs of societies emerging from conflicts, most authors agree today that particular mechanisms are more suitable to meet specific needs. For example, a well conducted truth commission with a comprehensive and widely circulated report is probably better suited to contribute towards creating a truthful historical record of past abuses and conflicts than a criminal trial. After all, the decision whether information on past abuses is included in the courtroom is taken on the basis of whether it contributes towards clarifying a particular case and not in how far it represents a historically correct picture. Accountability on the other hand is arguably better delivered by formal judicial proceedings that end in a verdict or an acquittal. As a consequence, it is becoming increasingly clear that focusing on a single transitional justice mechanism, like only having trials or only declaring an amnesty, is not enough. The situation in northern Uganda serves as a useful example how such comprehensive concepts of transitional justice could work in the future.The Justice Law and Order Sector of the Ugandan Government, a group including inter alia the different national courts, the Justice Ministry and the Department of Public Prosecutions, has started designing such a comprehensive system to deal with the legacy of the multiple conflicts that have ravaged the country ever since its independence 49 years ago. The concept acknowledges the ICC warrants issued against senior commanders of the Lord’s Resistance Army, but adds a number of national mechanisms to the concept. First of all, an International Crimes Division, dealing with crimes against humanity and war crimes, has been set up at the Ugandan High Court to guarantee accountability on a national level below the gravity threshold of the Rome Statute. Additionally, there are plans to set up a national Truth and Reconciliation Commission and to include mechanisms of traditional justice on the regional level. The concept is complemented by an Amnesty Law in force since 2002.
The LRA conflict in northern Uganda shows why all of these mechanisms are needed to tackle the fallout of this 26-year conflict. Arguably the LRA Commanders around Joseph Kony who have kept the conflict going for the better part of three decades should face accountability for the countless atrocities they have committed. A message of complete impunity in the face of these unspeakable atrocities would be a setback for efforts to establish the rule of law in the country. Yet, there are also a number of mid-level commanders and perpetrators within the national army that the ICC cannot take care of. In some cases it may be necessary to bring these individuals to the International Crimes Division of the Ugandan High Court for the sake of a durable peace. Yet, there are also ordinary fighters within the LRA that have been abducted and forced to fight and kill against their will. It is difficult to say if these individuals are actually perpetrators or victims of the war, and as their numbers go into the thousands an amnesty might actually be the most feasible approach to dealing with them. There may nevertheless be problems when these former perpetrators have to reintegrate into the communities in which they have killed and maimed in the past. Traditional justice concepts practised in northern Uganda like mato oput have already proven successful in helping to reintegrate these former fighters and should thus play a role in the concept. Lastly, Uganda has a history of ethnic conflicts, successive military coups and a marked north-south division. This legacy of violent conflict should arguably be tackled by a national Truth and Reconciliation Commission to further national reconciliation.
The example of northern Uganda shows how every transitional justice mechanism fulfils its role and has its place in a comprehensive concept to deal with the legacy of the LRA conflict. This has some interesting repercussions for the trend to conduct international trials for those most responsible for atrocities committed in conflicts. The ICC as the driving force behind this trend should consider embracing comprehensive concepts of transitional justice in order to further the emergence of a positive peace in situation countries. In fact, a paper by the Office of the Prosecutor declares positive complementarity as an aim of the prosecution strategy. It strives for a low number of trials at the ICC and aims to encourage domestic trials. Yet, court officials have been reluctant to actively embrace other transitional justice mechanisms like truth commissions or traditional justice measures. Court staff I have talked to have explained to me that this is due to the silence of the Rome Statute on other transitional justice mechanisms. Yet, other sections of the Rome Statute have also been interpreted by court organs. The Office of the Prosecutor has for example developed its own reading of the Rome Statute by adopting a strategy focusing on prosecuting those most responsible in each situation referred to the court. I doubt that it would violate this interpretation of the Rome Statute if the ICC would at least verbally embrace and encourage the use of other transitional justice mechanisms to complement its work. In the case of northern Uganda, it would have indeed helped to disarm allegations of the ICC not understanding local notions of justice if the court had actively embraced the use of traditional justice for abducted LRA fighters.
Great piece. I recently wrote a piece for the ICC / UCLA Law Forum in which the participants are discussing how to maximize the deterrent effect of the Court. Like you and others, I focused on the role of complementarity. I think that we come to somewhat similar conclusions, but in the course of writing I realize that there are a ton of details to unpack and lessons to be learned in order to get the most benefit from complementarity. If you are so inclined, you can read and comment on my piece here. I would gladly respond to any of your insights: http://uclalawforum.com/forum/permalink/68/947
Pingback: Whose Justice? | itsnotcricket
Thanks Jonathan, will gladly do so
Pingback: Where to With Transitional Justice in Uganda? The Situation After the Extension of the Amnesty Act | Justice in Conflict