Uganda's Amnesty Act

Uganda's Amnesty Act of 2000 offered a pardon and resettlement package to any rebel from any group who would “renounce or abandon involvement in the war”.Footnote ⁴⁴ The act established an Amnesty Commission with the purpose of persuading rebels to take advantage of the blanket amnesties and to help communities reintegrate pardoned combatants.Footnote ⁴⁵ Uganda's amnesty did not require a combatant to confess to crimes, which led resettlement packages of food and money to be viewed by some conflict victims as an unnecessary reward to those responsible for much pain and suffering in the region.Footnote ⁴⁶ Many rebels believed that, if they ever came out of the bush, the government would kill them. However, as word of amnesty spread among other abductees, local messengers and Mega Radio broadcasts from Gulu, rebels started to emerge and undergo the processes of demobilization and resettlement.Footnote ⁴⁷ Local civilians believed that the LRA was becoming a dying force, with the amnesty proving effective in disarming thousands of low-level combatants “whose defection is critical for ending conflict”.Footnote ⁴⁸

However, as Museveni remained reluctant to assure rebels that the amnesty would apply to Kony and other senior commanders, the LRA leadership began to redesign its insurgency in light of the conflict becoming “an international matter”.Footnote ⁴⁹ Indeed, the international political backdrop was becoming ever more pressing on the conflict and on means to achieve peace without permitting impunity. By 2002, the LRA was added to the United States terrorist exclusion list, Uganda's military Iron Fist offensives were failing and the international community was beginning to have doubts about the genuineness of Museveni's commitment towards peace.Footnote ⁵⁰ Perhaps in anticipation that international courts would not be required to respect domestic amnesties, a 2006 amendment allowed the minister of internal affairs to declare individuals ineligible for amnesty, though the amendment was never utilized.Footnote ⁵¹

The Amnesty Act expired on 23 May 2012, having coaxed over 13,000 LRA rebels to come out of the bush.Footnote ⁵² On 24 May 2013, Parliament reinstated part II of the Amnesty Act (offering a pardon for rebels laying down arms and denouncing participation in conflict), largely due to the insistence of the minister of internal affairs, Hilary Onek, and possibly influenced by a timely visit to Uganda by the US's ambassador-at-large for war crimes issues, Stephen Rapp.Footnote ⁵³ Thus far, the reissue of the amnesty is widely hailed by domestic civil society organizations as a step in the right direction for Uganda's reconciliation and stability alongside goals of local justice: “[t]his is a scholarly example of how civil-society pressure, advocacy, and sound arguments can actually change political decisions and bring home-grown peaceful solutions to violent conflicts.”Footnote ⁵⁴ Although commonly viewed as restorative or informal justice, amnesties are undoubtedly formal law: “[c]reated by law and enforced through legal frameworks, amnesties are law.”Footnote ⁵⁵

The reaction from international human rights activists is somewhat different, as the duty to extradite or prosecute is increasingly considered to be customary international law, relegating unconditional amnesties to an unacceptable if not unlawful approach to peace under global legal standards.Footnote ⁵⁶ Although the reissued amnesties remain lenient on the conditions of pardon, Uganda's Parliament is unambiguous in stating that the amnesty will only apply to those rebels not indicted by the ICC.

International Criminal Court indictments

In December 2003, Museveni referred the situation to the ICC, becoming the first state referral and first situation in the court's history. In January 2004, the ICC announced the opening of investigations to ensure that those with the greatest responsibility for the crimes in Uganda were held accountable.Footnote ⁵⁷ Upon referral, Museveni requested that only LRA crimes be investigated and only those crimes committed in northern Uganda.Footnote ⁵⁸ Although the then ICC prosecutor, Luis Moreno-Ocampo, assured he would investigate all crimes, investigations were announced in a joint press conference alongside Museveni, resulting in an impartiality gaffe by giving the impression of an “overly cosy relationship”.Footnote ⁵⁹

On 13 October 2005, the ICC publicly unsealed arrest warrants for LRA commanders Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, for crimes against humanity and war crimes.Footnote ⁶⁰ Kony was indicted on 33 counts involving murder, abduction, sexual enslavement, rape, and the recruitment and use of child soldiers.Footnote ⁶¹ With all eyes on the former altar boy turned “self-styled prophet”, little criminal accountability has reached the leaders of other armed groups or governments for their direct involvement in Uganda.Footnote ⁶² The lack of UPDF indictments by the ICC was officially due to insufficient gravity of the crimes investigated, but more likely due, at least in part, to an appreciation of a co-operative state party in the first-ever ICC case.Footnote ⁶³

For nearly a decade, the ICC dealt with unavoidable claims as to its ineffectiveness and failure to make an arrest in the Uganda situation, leaving some to consider the court's existence as mere “end-of-millennium wishful thinking”.Footnote ⁶⁴ It was not until 2015 that the ICC had its first potential case. In early January, LRA deputy commander and ICC indictee Ongwen surrendered to US special forces in CAR; Muslim rebel group Seleka claims it captured Ongwen during a battle in Sam Ouandja.Footnote ⁶⁵ Whether Ongwen surrendered or was captured, this new development breathes life into dormant questions of extradition, jurisdiction and the genuineness of co-operation between Uganda and the ICC, as sceptics continue to question the court's tangible contribution to international justice and the protection of human rights.

Juba peace talks

In 1994, Ugandan minister of state for the pacification of northern Uganda, Betty Bigombe, seemed to be successfully negotiating peace with the rebels in the bush, receiving a verbal commitment to peace talks by Kony himself. Meanwhile, an unconvinced Museveni disrupted talks with an ultimatum to disarm, garnering southern support against the northern “barbaric periphery”: enforced disarmament posed as the only guarantee of preventing a return to Obote and Amin-esque regimes.Footnote ⁶⁶ In 2004, Bigombe revived negotiations to stop the killings and to discuss alternatives for soldiers not wanting to be amnestied, which can imply guilt.Footnote ⁶⁷ Her efforts were again derailed, this time by the unsealing of the ICC warrants in October 2005, an event that has since been criticized and debated as untimely interference in the name of justice. Many locals in the northern districts began to question the government's genuineness in reaching a peaceful settlement of hostilities, or whether they were simply a pawn in a power struggle in Kampala, with a regime more interested in controlling political tensions in the country and appeasing international onlookers than truly ceasing the conflict.Footnote ⁶⁸

Regional developments were also shifting the negotiating dynamics. The 2005 Comprehensive Peace Agreement (CPA) between the government of Sudan and Sudanese rebels forced Sudan to withdraw from the south, thus diminishing its support for the LRA.Footnote ⁶⁹ Relocating to Garamba National Park in north-eastern DRC (driven across the border by the combined pressure of Uganda and the Sudan People's Liberation Army), with international warrants over their heads and loss of allied support from Sudan, LRA commanders possibly reassessed a peace settlement in light of their altered “prospects for military victory”.Footnote ⁷⁰

On 14 July 2006, talks began in Juba to negotiate conditions of peace, brokered by the government of South Sudan. The LRA demanded revocation of ICC warrants as a precondition to a final settlement, while Museveni asserted that warrants would be dealt with only after a peace agreement had been reached.Footnote ⁷¹ With the Juba negotiations beginning eight months after the unsealing of the arrest warrants, it is difficult to conclude whether the warrants incentivized the LRA to negotiate or if the warrants only gave the LRA a strategic tool to wield in Juba in demanding certain conditions before ending the conflict: conditions they knew Uganda could not agree to without ICC approval.Footnote ⁷² Sceptics believe that the warrants only disincentivized the LRA ever to sign a peace agreement, which would simply signal an escorted trip to The Hague for its indicted leaders.Footnote ⁷³ Although the warrants led to international attention on Kony and company and restricted the rebels’ movement, it also caused the LRA to become even more reclusive in the jungles between country borders.Footnote ⁷⁴

Whether the outcome of prosecutorial threats or of some other factor, for the first time in two decades both sides to the conflict considered the issue of accountability as a factor to be addressed in peace talks.Footnote ⁷⁵ The result was the 2007 agreement between the government of Uganda and the LRA, which outlined both parties’ preference for domestic and traditional justice in lieu of the ICC.Footnote ⁷⁶ Although Juba may not have been a peace “process”, reflecting what Christine Bell defines as a “value judgment attached to efforts to resolve the conflict at a particular time”, the talks did reveal important “micro-conflicts” concerning the causes and consequences of fighting.Footnote ⁷⁷ The agreement on accountability and its subsequent annexes regarding implementation have represented the parties’ attempt to reach a “meta-bargain” concerning the past and the causes of conflict: a bargain that can only be reached, Bell explains, once the conflict has been “substantively transformed”.Footnote ⁷⁸ Therefore, although the Juba peace talks did not mark a final resolution of the conflict in northern Uganda, the negotiations possibly signified a transformation of the conflict from an insurgency gone wrong to a tenuous engagement of opposing parties easing towards joint accountability and commitment to reconciliation in a fractured country.

International Crimes Division

Another outcome from Juba was the establishment of the ICD in Uganda's High Court based in Gulu. Unlike ad hoc tribunals, such as the ICTY and the International Criminal Tribunal for Rwanda, or a hybrid tribunal like the Special Court for Sierra Leone, the ICD is a national institution prosecuting international crimes though domestic legislation.

The ICD's first case involved former LRA director of operations, Thomas Kwoyelo, captured in the DRC in 2009 (with the first wave of amnesties still in effect) and charged with wilful killings, hostage taking and destruction of property.Footnote ⁷⁹ Although other high-level commanders, such as the LRA director of operations, Opio Makasi, have received amnesty regardless of the ICD's creation, the question of Kwoyelo's eligibility for amnesty remained in limbo for several years. Despite a successful appeal to Uganda's Constitutional Court in 2011, Uganda's Supreme Court ruled on 8 April 2015 that Kwoyelo, as one who was captured rather than surrendered (ie a “reporter” under the terminology of the Amnesty Act), could stand trial for grave crimes under international law, including crimes against humanity and war crimes.Footnote ⁸⁰

A similar case raised questions of whether amnesties were contingent upon surrender or disarmament, with the May 2012 capture of LRA commander Caesar Achellam during an ambush in CAR, mere days before the lapse of the original amnesty.Footnote ⁸¹ The Amnesty Act, as renewed in 2013, again granted ministerial ability to declare certain individuals ineligible for amnesty: individuals who would then face trial in the ICD or Uganda's military courts. As Kwoyelo awaits trial in Luzira Prison, it remains to be seen whether Supreme Court developments on amnesty eligibility and exceptions will be taken into account in the lapse or reissuance of the Amnesty Act in May 2015. If reissued, time will tell whether reissued amnesties will encounter similar judicial indecisiveness or technical ambiguities within the confines of the ICD.

It is important to note that neither the first nor second wave of amnesties applied to government individuals, nor is it likely that a third wave of amnesties would apply if reissued in 2015. Therefore, any complications and uncertainties related to pardoning human rights abuses would not affect ICD cases against UPDF members. No such prosecutions have gone forward, and only a small number of UPDF cases have been tried in Uganda's military courts: cases mostly involving unlawful killings and rape (with one conviction for torture) stemming from the 2006 disarmament campaign in Karamoja.Footnote ⁸²

Modernized mato oput ceremonies

The ICC prosecutor has stated that integrated approaches to combating impunity are encouraged, as domestic prosecutions and traditional mechanisms can help to pursue “a broader justice”.Footnote ⁸³ In Uganda, traditional Acholi mato oput ceremonies consist of elder chiefs asking those in need of forgiveness to step on a raw egg (a process known as nyouo tong gweno) and drink the bitter root from an oput tree to symbolize resolution of a dispute and purification of cen [evil spirits].Footnote ⁸⁴ In some cases, the ceremony also includes compensation for the person wronged.

Uganda's revamped 1995 constitution had already reinstated the Acholi leadership clan and, in 2000, rwodi [traditional Acholi chiefs] convened in Gulu to implement a modern mato oput, expected to anchor societal reconciliation in traditional rituals.Footnote ⁸⁵ However, as described below, the merits of using Acholi practices to reintegrate tribally diverse areas “have been oversold and the dangers under-appreciated”.Footnote ⁸⁶

Swift justice: Accountability without capture, impartiality or grasp of LRA politics

Northern Uganda has become emblematic of the peace versus justice debate in international criminal law and transitional justice. The LRA was initially regarded as a relatively small movement with distinct leadership committing grave crimes in a country where the government seemed to be fully co-operative. Meant to be a relatively straightforward first case to establish the ICC, the court has paid the price of legitimacy by misjudging a seemingly containable insurgency.

One week after the ICC announced the opening of its investigation, the LRA killed 50 civilians in an IDP camp in Lira; shortly after the warrants were issued, a massacre of 200 civilians occurred in the Barlonya camp, causing debate about “what justice means in an African war zone” and the cost victims must endure for international “assistance”.Footnote ⁸⁷ The increase in atrocities seemed to confirm that putting justice first would only lead to the impossibility of peace, as Kony then felt he had to fight not only Museveni's government, but also the entire international community. Proponents of peace before justice believe that international interference at a key moment in Juba crushed all hope of the permanent cessation of hostilities. Just after the LRA and Uganda signed a ceasefire in February 2008, Moreno-Ocampo refused to meet LRA delegates wishing to discuss future legal proceedings of the warrants, which allegedly influenced Kony's refusal to sign the peace agreement in April 2008.Footnote ⁸⁸ The ICC maintains that peace was never a genuine intention of Kony's and that talks were only a stalling mechanism to remilitarize and a ploy to receive humanitarian funding.Footnote ⁸⁹ Meanwhile, human rights organizations, such as Save the Children, voiced concerns over the ICC's poor timing and questioned the court's consideration of the welfare of IDPs.Footnote ⁹⁰ Regardless, the ICC remained adamant that “arresting Kony is justice and peace together”, while others contended that no benefits will come to the goals of peace or justice by “pretending that such decisions don't have to be made”.Footnote ⁹¹

The perception of one-sided justice has also hindered ICC legitimacy. The omission of UPDF crimes was supposedly due to “insufficient gravity”, particularly in comparison to the crimes of other parties: “LRA killings were 100 times worse than those by the UPDF”.Footnote ⁹² It is not unusual for international justice processes to tread lightly and strategically around the prosecution of certain individuals or offences to ensure the co-operation of influential parties to the case. In the Nuremburg Tribunals, systematic rape was excluded from the indictments of Nazi leaders so as not to implicate Soviet forces in the process.Footnote ⁹³ The International Criminal Tribunal for Rwanda has chosen not to implicate members of the Rwandan Patriotic Front for alleged human rights violations committed in the process of halting the genocide in 1994.Footnote ⁹⁴ Considering that the Rome Statute “is full of compromises and several parts of it show signs of haste”,Footnote ⁹⁵ it is not surprising that politicized ICC prosecutions should be much the same in their compromises for the sake of achieving some justice as opposed to none.

The ICC's legitimacy, as well as the burgeoning field of international criminal law, is also challenged by the ICC's lack of an international police force. However the court's ineffectiveness in capturing indictees (a reputation that may change with the surrender / capture of Ongwen) also indicates a general failure to appreciate the alliances and political relationships of the LRA. Viewing the situation as a rebel insurgency against a counter-insurgent does little to explain the LRA's more complex “parallel international relations”.Footnote ⁹⁶ After the signing of the CPA in Sudan, LRA operations found new frontiers in the DRC after 2005, in the CAR after 2007 and possibly in South Sudan as of 2014.Footnote ⁹⁷ The LRA operates more like a sovereign power in its interactions with allied groups, acting in the interests of power and survival.Footnote ⁹⁸ In this sense, LRA-Sudan interactions have often resembled more of an alliance of autonomous sovereigns than a proxy connection involving a random band of terrorists.Footnote ⁹⁹ This would help explain why pre-CPA negotiations between Sudan and Uganda proved unsuccessful, as the states’ support of the other country's rebels was treated as a proxy rather than as its more accurate characterization as a coalition of autonomous groups.Footnote ¹⁰⁰ When Sudan made peace with South Sudan, Khartoum's need for security aid from Ugandan rebels was replaced with a need for security from Uganda to protect against an angered LRA.Footnote ¹⁰¹ This “negative feedback-loop” in the balance of power has created difficulties for negotiating terms of justice and peace because the LRA's motivations for conflict shift with the needs of its survival as a politicized group.Footnote ¹⁰²

Compared to other rebel groups motivated by arguably more straightforward aims, such as pirates in Somalia acting upon a fairly clear (albeit politicized) agenda of financial gain within a collapsed state, the LRA is more unpredictable due to its vague and ever-changing incentives and, at times, downright confusing international relations: “[i]t is not clear whether the group actually wants to take over the Ugandan state (which it rarely proactively attacks directly), defend the Acholis (whom it frequently targets in attacks and kidnappings) or do the bidding of Sudan (with whom it in turn allies and attacks).”Footnote ¹⁰³

Appreciating the LRA as an autonomous but allied, nomadic but militarized regime may help to recognize its presence as a legitimate party to negotiations of power and peace, as well as to predict more accurately what will incentivize its future bargaining positions. This realization makes the strategic capture of remaining ICC indictees-at-large Kony, Odhiambo and Otti (if alive) as much a political as logistical challenge, especially considering the reliance on regional states to arrest and extradite.Footnote ¹⁰⁴ After Ongwen's surrender / capture in CAR, US troops handed him to the Ugandan contingent of the African Union Regional Task Force on 14 January 2015 and he was transferred to ICC custody on 16 January.Footnote ¹⁰⁵ Established in 2012 to pursue rebel groups, the task force is a joint military venture, utilizing troops from Uganda, CAR, South Sudan and the DRC. The formation of the task force and its co-operation in the transfer of Ongwen to The Hague signal improved collaboration among key regional figures to the conflict, at least militarily.Footnote ¹⁰⁶

However, because of the shifting regional-political backdrop to the conflict and initial misevaluations of the LRA's agility, both geographically and politically, quick judgments have often been made between the values of peace and justice. These assessments led to international and domestic expectations for resolving the conflict that were largely constructed upon speedy justice and concerns of international criminal law legitimacy.

Vulnerable peace: Reconciliation without consensus or appreciation of LRA culture

Some ill-informed international actors have naively praised mato oput ceremonies without realizing the historical inaccuracy, lack of ethnic-tribal representation and lost meanings. For instance, Acholi's Luo language uses one term, timo kica, to connote duel meanings of forgiveness and reconciliation, causing confusion as to which goal is achieved in modernized ceremonies.Footnote ¹⁰⁷ Furthermore, pre-colonial evidence shows that mato oput was traditionally meant to prevent violent conflict through the promotion of social systems of accountability and the purification of individual offenders; to heal entire multi-ethnic groups after a decades-long war of countless atrocities is a vast departure from this “traditional” practice.Footnote ¹⁰⁸

Mato oput also lacks true consensus on the healing rituals found in all conflict-affected groups, leaving non-Acholis to wonder: “[why] should the Acholi alone do all the forgiving”?Footnote ¹⁰⁹ The modernization of mato oput is partly a product of international funding based on a 1997 report, “The bending of spears”, which focuses on useful but under-representative Acholi practices.Footnote ¹¹⁰ Although the report is ironically titled after kayo cuk, a Lango tradition of breaking or jumping over two spears to symbolize conflict resolution, it is Acholi practices of mato oput that have become the go-to example of traditional justice in northern Uganda. This is perhaps unsurprising considering that the Amnesty Act itself was also Acholi-centred, being the result of lobbying efforts by the Acholi Religious Leaders Peace Initiative and the Acholi Parliamentary Group.Footnote ¹¹¹ Government support for Acholi traditional justice can be cynically justified as giving “credence to [UPDF] propaganda that the northern insurgency was nothing more than an internal Acholi brigandage”.Footnote ¹¹² However, Acholi-specific or even northern Uganda-specific forms of “traditional” justice risk reinforced national ostracism of the north, giving Museveni further fuel to ostracize the communities that produced Okello, Obote and Amin.Footnote ¹¹³ Lastly, full reconciliation through any sort of tribal ritual will have to contend with community distrust of some Acholi elders thought to have given Kony a blessing to conduct LRA activities under the banner of spiritual enlightenment.Footnote ¹¹⁴

Long-term reintegration has also been stunted by a failure to appreciate the religious-spiritual fabric that makes the LRA a culture as much as an armed group, with generations born into a life of “guerrillas in a religious mist”.Footnote ¹¹⁵ The LRA is clearly a survivalist organization interlaced with a religious and spiritual fabric, and “if powerful people believe in demons it may be best not to laugh at them”.Footnote ¹¹⁶ Dismissing this divine element, even if appearing in the form of “distorted Christianity and brutality”, risks losing sight of key aspects of LRA culture that can facilitate deterrence of human rights violations and inform social reintegration upon disarmament.Footnote ¹¹⁷ This might explain why prior responses taken from a purely “propagandist, statist-militarist and legalist perspective” have failed to thwart the LRA's combination of spiritual tactics and guerrilla warfare.Footnote ¹¹⁸ Because Kony's willing followers believe him able to cast off demons and see the future through spirits that inhabit him, the “boundaries of the LRA's political community are defined by Kony's religion”.Footnote ¹¹⁹ Therefore, more efforts must be made to discover how ritual traditions from northern Uganda have been distorted and engrained into LRA cultural understandings of such traditions. At the same time, forgiveness rituals, whether Acholi or otherwise, meant to resolve the cause of the conflict, must be careful not merely to replicate Kony's terror tactics.Footnote ¹²⁰

Justice under the shadow of the court

The very presence of the ICC's jurisdiction, which UN Secretary General Ban Ki-moon has called the “shadow of the Court”, is starting to trace a silhouette of international justice along lines of accountability meant to avert mass atrocities and human suffering.Footnote ¹²² However, until those lines are more clearly drawn, stepping into the court's shadow may entail barriers to concurrent pursuits of justice.

Uganda can lift the remaining LRA warrants only by requesting the Security Council to freeze its investigation for one year under article 16 of the Rome Statute, by proving that prosecution is no longer “in the interests of the justice” under article 53, or by showing that Uganda is willing and able to prosecute domestically, thereby cancelling the ICC's jurisdiction under articles 17–19.Footnote ¹²³ Without prior Security Council resolutions concerning Uganda, a Security Council deferral is unlikely, as it would certainly appear to be a public affront to justice.Footnote ¹²⁴ As for article 53, Human Rights Watch has urged the prosecutor, as an impartial and non-politicized figure, to maintain a narrow reading of “interests of justice” that avoids the politicization of peace talks as a ploy to undermine the ICC.Footnote ¹²⁵ In 2007, Moreno-Ocampo provided “limited clarification” in explaining a presumption in favour of prosecution and that there “is a difference between the concepts of the interests of justice and the interests of peace”.Footnote ¹²⁶

It is at this point that one begins to question the logic of the ICC in opening investigations with the promise that prosecuting lead commanders would help to “deliver peace”, when the court's mandate is supposedly to “do justice”.Footnote ¹²⁷ The ICC's success with respect to Uganda may lie not in its continued efforts to argue that both peace and justice are accomplished through prosecution, but in a better appreciation of its own mandate as either ending conflict or ending impunity. To this end, current ICC Prosecutor Fatou Bensouda confirmed that the court does not weigh the interests of peace, which are mandated to other institutions.Footnote ¹²⁸ Bensouda is seemingly righting the ship by steadfastly anchoring ICC jurisdiction in the conviction that justice is a foundational element of peace. This clarification of purpose improves communication and complementarity with different layers of justice structures, and promotes the protection of universal human rights, which “should not be contingent on showing that they lead to another end (such as ‘peace’)”.Footnote ¹²⁹

The most likely scenario in which the warrants would be lifted is if Uganda shows sufficient ability and genuine willingness to prosecute individuals indicted by the ICC. Uganda originally referred the situation to the ICC due to an inability to capture, not an inability to prosecute, leading to a suspicion that Uganda consciously shouldered the financial and political costs of prosecutions onto the ICC in an inverse of positive complementarity.Footnote ¹³⁰ Therefore, Uganda's initial “preference” for submitting the situation to the ICC should perhaps not be differentiated from a state that is “unwilling” to prosecute.Footnote ¹³¹ However, a 2009 Pre-Trial Chamber II decision affirmed admissibility, pending further national legislation suitable for prosecuting the indictees.Footnote ¹³² This prompted an attempt retroactively to incorporate provisions of the Rome Statute into Uganda's 2010 International Criminal Court Act, which extends the ICD's jurisdiction over such crimes.Footnote ¹³³ The act is undergoing constitutional challenges concerning retroactivity, maximum penalties and (interestingly for potential UPDF accountability) the legality of a provision excluding immunity for state officials upon indictment by the ICC.Footnote ¹³⁴ Regardless of the final ruling for the Constitutional Court and despite complications in Kwoyelo, the ICD's creation, and accompanying legislation to empower it, indicate that Uganda is committed to both the ICC's concept of individual criminal accountability and its obligations under the Juba agreements with the LRA to pursue accountability domestically.Footnote ¹³⁵

As Uganda enjoys one of the most stable and functioning judiciaries in Africa, domestic prosecutions should serve to close the “impunity gap” left by the ICC's indicting only those with the greatest responsibility, meaning that the remaining warrants will probably remain active in the hope of capture, co-operative extradition or a rare surrender, as in the cases of Bosco Ntaganda of the DRC and Ongwen of Uganda.Footnote ¹³⁶ Uganda's minister for international relations, Henry Okello Aryem, confirmed that Ongwen, himself abducted at the age of ten, would not be tried in Uganda, but would be extradited to The Hague to face charges of murder, enslavement, pillaging and cruel treatment of civilians.Footnote ¹³⁷ However, Refugee Law Project's Stephen Oola points out that this fulfilment of Uganda's obligation to extradite under the Rome Statute does not necessarily settle the dispute over whether Ongwen actually will or should be tried in The Hague, as Uganda may still decide to argue its ability to provide a fair hearing in accordance with international standards.Footnote ¹³⁸

But the issue of “impunity gap” reaches well beyond a discussion of immunity for low-level versus high-level rebel fighters or whether rebel commanders can and should be prosecuted domestically or internationally. Perhaps rarer than Kony surrendering would be an ICC finding of UPDF crimes sufficiently grave to warrant indictment. In light of later contradictory “gravity” decisions, notably Thomas Lubanga's indictment thought to be determined more by his “imminent release” from DRC prison, the legitimacy of the ICC would be improved by acknowledging that “relative gravity” is a factor in the decision making.Footnote ¹³⁹ LRA and UPDF criminal accountability could also occur through utilization of universal jurisdiction by other domestic courts, or through civil suits under domestic provisions, such as the US Alien Tort Claims Act (for torts violating the “law of nations”) or the Torture Victims Protection Act.Footnote ¹⁴⁰

Despite aspects of one-sided justice, the ICC and Uganda have stumbled closer to a more peaceful coexistence within complementarity through recent elucidations of the ICC's commitment to justice and Uganda's internalization of international crimes to carry its weight in combating impunity. As many await the future of Ongwen's potential case, and with three remaining indictees at large, the ICC should continue to shift its focus away from moral-based justifications and instead ground its legitimacy in factual achievements that the court can actually produce.Footnote ¹⁴¹ This continued project in co-operative capabilities between international criminal law and domestic structures can be aided by an understanding that the ICC is “as much a product as [a] progenitor” of the architectural plane upon which criminal justice and transitional peace interact.Footnote ¹⁴²

Some still fear that the use of a “universal voice” in international criminal law, and by the ICC in particular, forces a “representation of all humanity” that uses law to exploit mass suffering.Footnote ¹⁴³ The ICC has taken admirable steps to ensure a more victim-centred approach, including legal aid, reparations and presentations in IDP camps to explain the court's mandate and processes.Footnote ¹⁴⁴ Nevertheless, the achievable amount of formal and feasible criminal justice must be balanced with more representative traditional mechanisms that can promote a higher quality of durable peace through reconciliation of all Ugandans with the true sources of the conflict.

Structures of comprehensive and sustainable peace

The nuances associated with Uganda's struggle have been dramatically underestimated at the international level, and there has been little appreciation that, with respect to both the fighting and the law, “there is no [one] community that owns the problem”.Footnote ¹⁴⁵ On the domestic level, the Juba peace talks saw Uganda and the LRA collectively encourage traditional justice fora that encompass Acholi rituals, as well as Iteso rituals of ailuc [to hold a person responsible], Lango rituals of kayo cuk [biting charcoal, figuratively, to prevent repeated actions], Madi rituals of tonu ci koka Footnote ¹⁴⁶ and Ankole rituals of okukaraba [a covenant of peace between enemies].Footnote ¹⁴⁷ If implemented, the agreement reached in Juba represents a positive step towards traditional justice mechanisms that resonate with a greater proportion of affected communities and facilitate gateways to reintegration of ex-LRA rebels, most of whom are themselves victims of abduction and atrocity. This prevalence of perpetrator-victims gives some reason to believe that the reissuance of amnesties (in 2013 and perhaps again in 2015) can be a productive “minimum act of reparation from a Government which had already failed to protect the amnesty beneficiary in the first place”.Footnote ¹⁴⁸

On the other hand, the renewal of an amnesty not contingent upon confession or information about abducted children and other crimes may not meet victims’ needs and expectations for localized justice that can emanate the truth necessary for forgiveness and reconciliation.Footnote ¹⁴⁹ The 1980s and 1990s saw Latin American countries, such as Argentina and Chile, utilize amnesties to incentivize confessions about previous dictatorial regimes and construct a truth narrative around their respective histories of abuse.Footnote ¹⁵⁰ Recently, Rwanda concluded a decade of trying genocide cases in “traditional” gacaca [on the grass] courts revamped to address the country's need to eradicate a deep-seated genocidal ideology (post-genocide gacaca was, ironically, based upon an earlier version of local councils used by Museveni to mediate law and order during the Bush War).Footnote ¹⁵¹

Uganda may similarly embark upon future avenues of dispute resolution fora empowered with more retributive functions, as proposed by the May 2013 Draft National Transitional Justice Policy developed by the government's Justice Law and Order Sector. The draft policy calls for witness protection in formal trials, increased participation by women and children in traditional justice processes, a reparations programme and a truth-telling process.Footnote ¹⁵² A commitment to such multi-layered accountability systems (following the guidance of the Juba agreements) will provide more satisfactory justice within local communities that traditionally connect punishment to compensation.Footnote ¹⁵³ Truth about gross human rights violations can also help to bridge the peace-justice divide, because truth is neither “synonymous with justice … [nor] independent of justice”, but rather a “virtue of justice” that needs to be shared among all affected tribes of Uganda.Footnote ¹⁵⁴ A truth commission, conditional amnesties, or hybrid retributive-restorative forms of localized justice could shift the focus from the tribal identity of perpetrators and victims to an emphasis on truth about crimes. This “historical accountability” sheds new perspectives on abuses, thus informing the amount and type of justice appropriate for future deterrence.Footnote ¹⁵⁵ Such truth fora can also provide perspectives and explanations from the government. Such comprehensive accountability in truth-telling can be vital to the overall process of reconciliation, as victims themselves see both the rebels and the government as responsible for their suffering to various degrees.Footnote ¹⁵⁶

Gaining multiple perspectives of the causes of the conflict from all parties can also produce important understandings about sources of continued conflict that reach beyond Kony's elusive capture. Writing of Idi Amin and fascism, Mahmood Mamdani warned that a focus on one man does not cure a country of its foundational “conditions and forces” of a conflict.Footnote ¹⁵⁷ Mamdani's notion that “Amin did not drop from hell or heaven”, but was instead “the product of Uganda”Footnote ¹⁵⁸ is similar to the approach that must be taken in understanding individuals in the LRA and potential sources of future conflict that are seeped more in spirituality and tribal-political tensions than in the notorious actions of one man.

Preventing the resurfacing of these forces requires effective peace-building in conjunction with the government's 2007 Peace, Recovery and Development Plan.Footnote ¹⁵⁹ The plan has initiated improved conditions for IDPs resettling in northern districts. However, a genuine shift from “relative peace” to the envisioned “stable peace” must not fall into the liberal internationalist paradigm of peace-building focused solely on market economies and democratization.Footnote ¹⁶⁰ Like swift justice, impatient peace can stall or destabilize transitions. Instead, the needs and expectations of long-term peace must continue to be aligned within the country's existing rights framework, which includes the Uganda Human Rights Commission and non-governmental organizations, such as the Justice and Reconciliation Project.Footnote ¹⁶¹ Enabling Ugandan societies to protect themselves against the forces that produced the conflict brings further reconciliation among coexisting structures of international criminal law and transitional justice, by employing the notion that the conflict does not live and die with Kony's impunity or with Ongwen's punishment, but with the vulnerability or resistance of civilian populations.Footnote ¹⁶²