Frank Nyakairu
26 August 2007
Kampala — Today is the anniversary of the signing of the Cessation of Hostilities Agreement between the Government and Lord's Resistance Army rebels. Efforts to find a lasting solution to the conflict continue in the shadow of the intractable question of what comes first: peace or justice? Frank Nyakairu looks at the issues
Dorothy Atim (not real name) 42, is one of the hundreds of thousands of displaced persons in northern Uganda. She is also a sister to one of the leaders of the rebel Lord's Resistance Army (LRA), who has been indicted by the International Criminal Court (ICC) for war crimes and crimes against humanity.
Family members accused her brother of orchestrating an attack on his own village that killed most of his own relatives. But in August last year, Atim had a chance to reunite with her brother in Garamba Forest, D.R. Congo after 17 years. When Sunday Monitor met her in Gulu three months ago, she still had mixed feelings about her brother. She was neither sure that she could live with her brother after the war is over nor did she wish her brother to face trial for his alleged crimes.
It is a Catch 22 situation for Atim just like it is for many of the war victims in northern Uganda: To ignore the massacres, abductions, rape and mutilations attributed to the LRA or to ensure that the rebel leaders pay for there alleged crimes. This question is critical at a time government and the LRA negotiators are seeking ways of ensuring reconciliation and accountability in a region torn apart by this devastating two-decade war.
Government's lead negotiator, Ruhakana Rugunda, describes this stage as "an acid test" for the Juba peace process. Under the peace talks Agenda Item 3, 'Reconciliations and Accountability', the protagonists are supposed to deliver a credible alternative justice system to replace the possible trials by the ICC.
On the basis of individual criminal responsibility, Joseph Kony, the leader of LRA is charged with 33 counts of crimes against humanity (12 counts of murder, enslavement and rape) and war crimes (21 counts of sexual enslavement, cruel treatment of civilians, inducing rape pillaging, intentionally directing an attack against a civilian population). Vincent Otti faces 32 counts ( 11 of crimes against humanity (21 for war crimes). Okot Odhiambo faces 10 counts (2 for crimes against humanity and 8 for war crimes) while Dominic Ongwen faces the least, seven counts; three for crimes against humanity and four for war crimes.
The LRA stands accused of slaughtering thousands of civilians. The UN estimates 25,000 children have been abducted and conscripted into the rebel force while the girls were often used as sex slaves.
Today, northern Uganda is more peaceful than ever. In fact, the government team currently consulting victims on justice and peace issues are traversing the region freely in a way they would not just a year ago. Night commuters (displaced children walking to urban areas to sleep in the relative safety of shop verandahs), have greatly reduced. The number of people living in internally displaced people camps has dropped from 2.2 million in 2002 to 1.2 million according to the UN today. But as the fractured region tries to pick the pieces, what do the victims say?
Peace and Justice
"I lived with my brother since we were young. He was good but when I met him in Garamba he had changed I even feared to ask him whether he actually was among the people behind the massacre," Atim said. "I may forgive my brother but I do not think people in my village will ever forgive him," she added. People confronted by the dilemma Atim is facing can be found almost everywhere in northern Uganda.
The same quandary has been highlighted in three different reports released over the last three months in the war affected zones. The International Centre of Traditional Justice (ICTJ); working with the Human Rights Centre, University of California, Berkeley and Payson Centre for International Development, Tulane University, based in the U.S. carried out a random survey in June this year in the war affected districts.
They interviewed 2,875 people, 58 percent of whom said they would want the LRA leadership tried for their alleged crimes. But the same researchers found that 76 percent of those interviewed fear that pursuing such trials could jeopardise the ongoing peace process.
When they asked the respondents which mechanism would be most appropriate to deal with those LRA and UPDF individuals suspected to have perpetrated human rights violations, almost equal numbers mentioned the ICC (29 percent) and the Ugandan national court system (28 percent). Twenty percent favoured the amnesty commission while only three percent said resort to traditional justice mechanisms would be the most appropriate mechanism.
When asked if they favoured peace with amnesty or peace with trials, 80 percent of the respondents chose peace with amnesty. This figure may reflect the fear respondents have that trials would spoil the peace process. Nevertheless, as many as 71 percent of those who had heard about the ICC said it had contributed to reducing the violence and to pressuring the LRA into peace talks.
The second research was conducted also in June by the UN human rights office. The authors of the 80-page UN report said the study was designed to "amplify victims' voices".
Victims "repeatedly expressed their need to discover the truth about the past, especially to shed light on the identity of the perpetrators and the nature of the acts that have been committed," it observes. The report, however, notes that the victims have "highly mixed views" about amnesty processes, prosecution of perpetrators before the ICC, and local justice.
The third report released in July focused on the abductees. The report by Journal of the American Medical Association said some of the former abductees are more likely to have feelings of revenge after assessing the prevalence of Post Traumatic Stress Disorder symptoms in 169 former child soldiers.
It calls for more efforts in rehabilitation and reintegration to break what it called a possible post-conflict cycle of violence.
Possible national trials
Though consultations with war victims are underway, there seems not to be a ready answer for how to deal with war crimes and crimes against humanity. This week both the government and the LRA hinted on a possible national trial for the LRA leaders. "We have discussed this with legal experts... there is a possibility of forming a unique legal system to achieve lasting peace and accountability," Dr Rugunda, told journalists last Sunday.
LRA chief negotiator, Martin Ojur said on Wednesday; "Under the Rome statute the ICC can withdraw for national trials. But though this is an option we want to hear what the victims will say."
On Monday, August 21, the government started its country-wide consultations while the LRA say they will start a week later. An international legal expert who declined to be named said the protagonists at the Juba talks "almost have no option but to set up a special court to deal with the crimes."
Earlier on June 29, the parties signed an agreement laying out the general principles on how to deal with issues of accountability and reconciliation which provided for "formal courts" as a possible alternative. The agreement provides that Uganda will exercise jurisdiction over individuals who allegedly "bear particular responsibility" for the most serious crimes.
The ICC would accept national trials where possible under the terms of its Rome Statute. But the looming possibility of resorting to this sort of trials, has already attracted the attention of the U.S.-based Human Right Watch (HRW), among other interested parties. HRW released a document in July which insists that national trials for such grave crimes "should meet the following substantial benchmarks: credible, independent, and impartial prosecution; adherence to international fair trial standards; and penalties that are appropriate and reflect the gravity of the crime."
Mr Richard Dicker, of HRW's International Justice Programme, warned: "If national courts handed down a slap-on-the-wrist sentence in the event of convictions for the most serious crimes, it would simply not pass muster," said Dicker. "Such trials would be tainted even if they were otherwise fair and credible."
Borrowing a leaf from the Rwanda and Yugoslav criminal tribunals HRW's Elise Kepler said: "any penalty short of imprisonment will be inconsistent with justice being done."
But even if this ideal were to be achieved, there is the second dilemma of who will appear before such courts. The LRA insist that if there is going to be any national trial, UPDF personnel suspected to have committed atrocities must also appear before the same special court. Reuters news agency on Wednesday, August 29 quoted LRA's spokesman in Juba, Geoffrey Ayoo noting that:
"We agreed both parties have committed crimes, both parties will be held accountable. This has got no limit - it does not spare anyone at all, including the President of Uganda."
But UPDF consider the LRA's argument as redundant. "Soldiers who committed crimes during the war were prosecuted, some actually executed," UPDF spokesman Maj. Felix Kulayigye told Sunday Monitor in an interview. "What the LRA is trying to do is equate itself to UPDF and such talk is redundant," he added.
But every indication is that this matter will not simply be rationalised away. It is the one issue on which the very future of the 1.2 million people, especially in Acholi, still crammed in the generally hopeless Internally Displaced People Camps, rests.
Some of them may have been moved to the newly-established less congested transit camps (120 in Gulu and Amuru, 69 in Kitgum and 171), but they cannot go home because many believe the LRA is still lurking out there.
Religious, cultural and opinion leaders leaders approached by Sunday Monitor for comment all excused themselves, highlighting the sensitivity of the peace vs justice question. Almost as one, they explained that whatever they said could very easily be misconstrued either by the victims or parties to the talks.
Kony and his men have for a year made the dropping of the ICC indictments a principal condition to signature of a comprehensive peace agreement. And yet the ICC shows no signs of budging, leaving a lingering question: what kind of credible, independent, and impartial justice system are the LRA leaders willing to undergo to sign a peace deal?
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