International criminal law and transitional justice are highly dynamic fields. 2011 has yet again demonstrated this by its sheer eventfulness.
The year started by the extradition of Callixte Mbarushimana to the ICC in January. A sealed arrest warrant had been issued against him for crimes allegedly committed in the Kivu region of the Democratic Republic of Congo. In the late February Resolution 1970 the United Nations Security Council referred the situation in Libya to the International Criminal Court (ICC). A conflict about the 2010 Presidential elections in Cote d’Ivoire between the incumbent Laurent Gbagbo and his challenger Alassane Ouattara escalated in the first quarter of 2011 and led to an intervention by France and the UN who arrested Gbagbo in April. The country had accepted ICC jurisdiction under Article 12-3 of the Rome Statute in 2003, a decision that was affirmed by Ouattara as legitimate President in December 2010. The Office of the Prosecutor (OTP) was thus monitoring an unfolding conflict in real-time for the first time in its history.
In May 2011 the International Criminal Tribunal for the former Yugoslavia was back in the headlines with the arrest of long-time fugitive Ratko Mladic. During the summer months of 2011 Uganda conducted its first national war crimes case by charging former LRA Commander Thomas Kwoyelo for crimes under Ugandan national law and the Geneva Conventions. This was followed by the decision of the US administration to send 100 combat equipped military advisors to LRA affected areas to support the hunt for Kony. In October 2011 ICC indictee Muammar al-Gaddafi was killed and the ICC authorized full investigations of the situation in Cote d’Ivoire. On 30th November 2011 ex-President Gbagbo was transferred to the ICC. In late November the focus started to move back towards Sudan and the Darfur situation. The Kenyan High Court issued a national arrest warrant against President al-Bashir and in early December the ICC unveiled its fifth arrest warrant in the Darfur case against the Sudanese Minister of Defence, Abdelrahman Hussein. In December Mbarushimana was set free by the ICC as the Pre-Trial Chamber denied to confirm charges.
This short – and admittedly selective – overview of events in 2011 shows how fast the discourse on international criminal justice and transitional justice moves from one flashpoint to the other. Bloggers and researchers focusing on these topics struggle hard to keep up with the events and provide meaningful commentaries.
Many of those publishing on transitional justice – including myself – move from one situation to the next, pressed by the speed of events and the changing focuses of international attention. But this behavior carries some risks for the quality of our assessments.
As a new situation arises, commentators would actually have to digest a wealth of information about the historical and cultural background of the country, the history of the conflict to which international criminal justice is applied to, local notions of justice, the political and judicial system, etc. Of course this is impossible to achieve in practice, which unfortunately leads to some of the research and commentaries being ‘out of touch’ with the realities on the ground. We tend to see all the events unfolding in a situation country through the lens of international criminal justice or transitional justice while forgetting to consider earlier developments and trends in the countries.
A good example is how the mainstream view treats the case of the ICC investigations in northern Uganda. The ICC indicted the top five rebel commanders of the notorious Lord’s Resistance Army (LRA) in 2005. Most observers agree on the assessment that the ICC helped to force the LRA to negotiate in early 2006, leading to the inception of the Juba Talks in Southern Sudan. The chain of argument goes that the LRA was confronted by increased international pressure to negotiate while the Government of Sudan (GoS), its main sponsor, was deterred from upholding support for the rebel group through increased international attention and pressure. Most observers also agree that the ICC then became a stumbling block to the talks as the LRA made the lifting of arrest warrants their key demand in the talks. The mainstream narrative thus attests the ICC investigations a mixed impact in the LRA conflict. At a closer look, however, both claims can be contested.
Let’s take the claim of increased international pressure on the LRA and the GoS as an example. Yes, one can argue that the ICC indeed augmented this pressure, but the processes leading to the general increase of pressure were ongoing long before the ICC started its work in Uganda. The local civil society had been pushing for talks between the LRA and the government for a long time, upholding contacts to LRA leaders even at the height of the conflict and trying to bring them to the table. At the same time the UPDF became increasingly successful in putting the LRA under pressure through military successes and an amnesty law passed in 2000 that promoted defection. Again, civil society played a major role in outreach and advocacy strategies to make the amnesty well known and reach as many LRA fighters as possible. The ICC came in at a point when these combined processes started bearing fruit and took much of the credit when the LRA sat down to talk.
The pressure on the GoS to stop LRA support had also been growing for a long time. In 1999 Uganda and Sudan signed the Nairobi Agreement, declaring that they would stop the support of each other’s rebel groups. Even though most people claim that the GoS upheld their support at least for some time, it had become more difficult to do so as the government had publicly vowed to stop the support. The pressure was increased in the following years when the LRA was put on the US list of terrorist organizations after the 9-11 attacks. In March 2004 this pressure led to the GoS allowing the UPDF to pursue the LRA on southern Sudanese territory where the rebels had most of their bases. Finally, the Comprehensive Peace Agreement that ended the civil war between northern and southern Sudan in January 2005 removed many of the reasons the GoS had to support a proxy force in southern Sudan. It was in this context that the ICC started investigations of crimes committed by the LRA and so helped to maintain pressure on the GoS to not engage with the LRA again. It was not the main trigger that led to the GoS disengaging from the LRA though.
The example of the mainstream narrative about the impact of ICC investigations in northern Uganda cautions us against drawing conclusions too quickly. Research and commentaries on justice in conflicts have to be informed by sufficient background information about the situation countries. Increased communication across the disciplines, particularly with historians and ethnologists, is of key importance.