Exorcising the Ghost of the ICC

As the momentum of LRA peace talks in Juba slows, the promise of peace increasingly seems yet another cruel and fleeting apparition. Yet it is too soon to write off talks which, now in their fourth month, have progressed further than most ever expected.

During that time they have survived setbacks – most recently a spate of attacks in and around Juba that the Ugandan army has blamed on the Lord’s Resistance Army (LRA) – that would previously have scuttled the process. What is now required, if the talks are to succeed, is direct engagement by the principals, particularly the LRA leadership in the bush; a renewed focus on the key issues to the exclusion of peripheral matters; and a dispelling of the myth that the International Criminal Court (ICC) is an obstacle to the conclusion of a peace agreement.

Amongst the multitude of issues on the table, one often predominates – namely the commonly held belief that the ICC is the single greatest barrier to a successful resolution of the 20-year old conflict. More can and should be done to dispel this myth.

For a start, the ICC’s investigation played a direct role in spurring the current peace initiative. Far from pushing the LRA beyond a point of no return, the issuing of arrest warrants helped alter the LRA’s calculations and created an incentive for the indicted commanders to negotiate.

The ICC’s intervention also complicated Khartoum’s continued support of the LRA, helping sever the LRA’s supply lines and uproot their secure safe havens. Finally, the ICC’s case focused international attention on the long overlooked crisis in northern Uganda and added renewed pressure on efforts to end the conflict. Given the history of failed peace efforts and fears that talks will be used as a ruse for the LRA to regroup and rebuild, the continued threat of prosecution provides effective leverage to ensure committed engagement by all parties and should not be prematurely relinquished.

In any event, Uganda cannot revoke its referral to the ICC at this point even if it wanted to. The contrary and widely held belief among the Acholi was succinctly expressed by one camp resident at Anaka camp outside Gulu, who asserted “the ICC is Museveni’s dog. He can unleash them when he needs and recall them when he wants.” However, the ICC’s Statute provides no formal way for the Ugandan government to force the ICC to close the case, short of demonstrating that it is willing and able to prosecute the indicted commanders domestically.

Another obstacle is that Kony and Otti have said they will not attend the talks while the ICC prosecutions are ongoing, for fear of the arrest. Instead they are represented by delegates, composed mostly of Acholi diaspora. These delegates are not reliable or credible representatives. Their expanding and unrealistic demands, such as the rewriting the constitution and dismantling of the UPDF, complicate talks and sow suspicions that the LRA are using the talks as a ploy to regroup.

Kony and Otti’s fear is a misplaced one. With no independent enforcement mechanisms, the ICC is entirely dependent on others to execute its own arrest warrants. Juba is safe for the LRA leaders because the UPDF is not deployed there and the Sudan People’s Liberation Army (SPLA) has given firm assurances of protection. If the SPLA wanted to arrest the indicted Kony and Otti, they could have done so during several meetings at Nabanga on the Congolese border.

The Juba head of UNMIS, the UN peacekeeping mission in southern Sudan, has already been reported as saying that his forces will not actively purse the arrest of indicted LRA commanders. And the ICC Prosecutor himself made it clear last week that he supports the peace process and that the arrest warrants should not be an obstacle to that process.

However, while he may support the peace process, the Prosecutor has no intention of dropping his prosecutions in the foreseeable future, and nor should he. The ICC is a fledgling institution, and these are its first prosecutions.

These prosecutions have an importance beyond this conflict – as what happens here is being keenly watched in Sudan and Congo where the ICC has other investigations under way. And in any event, the LRA conflict is still ongoing, as starkly demonstrated by recent clashes in Southern Sudan - so there is no peace to be balanced against the needs of justice.

If and when there is an implementable peace agreement, with real and credible accountability mechanisms, then that situation may change. Faced with the prospect of ending the urgent humanitarian catastrophe in northern Uganda by restoring security and allowing 1.8 million IDP living in squalid conditions to return home, the ICC and the international community will face strong pressure to place the pursuit of justice on hold in order to allow the peace agreement to proceed.

But is only then, with a peace agreement in place and under implementation, and a demonstrable end to the brutal and devastating conflict in northern Uganda and Southern Sudan, that consideration can or should be given to suspending the ICC’s prosecutions.