What you need to know:
- Communities should be consulted and several approaches, including cultural means must be taken to get justice.
In November 2022, the International Criminal Court (ICC) Prosecutor Karim Khan implored the ICC Pre-Trial Chamber to confirm charges against Joseph Kony in absentia.
This came 18 years after the organisation failed to execute a 2005 arrest warrant against Mr Kony and on the eve of the silver jubilee of the Rome Statute through which the ICC was established in 1998.
Within this context, several questions are conspicuous. First, is the dubious timing of the Prosecutor’s request for confirmation of charges, and the choice of candidate. Former President of Sudan, Field Marshal Omar al-Bashir, also an indictee of the ICC and arguably a bigger fry, has been eloquently left out of Prosecutor’s considerations.
READ: Kony the unholy father, Achai the son, and Dominic Ongwen
Why did the Prosecutor move on Mr Kony and not Mr Bashir or both of them, since they share the common trait of being elusive?
More importantly, while the Prosecutor noted that a trial “would represent a meaningful milestone for victims of Mr Kony’s crimes who have waited patiently for justice for almost two decades”, it is unclear whether the perspectives of those very victims and those of communities in Uganda were earnestly considered.
It is imperative that victims’ needs are brought to the centre of any decisions about trial, and that, within the context of complementarity with Uganda’s own efforts (such as an International Crimes Division of the High Court, a Transitional Justice Policy, and everyday repair work by communities), processes of accountability include unambiguous commitments to comprehensive reparations. Short of this, the ICC will infinitely be accused of imposing justice by discounting the plurality of global accountability mechanisms, and disrupting judicial sovereignty around the world.
In December 2003, the situation in northern Uganda, involving a brutal conflict between the government and the Lord’s Resistance Army (LRA), was referred to the ICC. Shortly after, the Refugee Law Project (RLP), which had conducted extensive research in the region, cautioned the ICC about the futility of such a referral, and implored the Court either to investigate all sides to the conflict or to drop the case altogether.
A “peace versus justice” narrative then emerged, pitting both Ugandan and international Civil Society Organisations (CSOs) against themselves, as though the divide represented competing priorities.
Then as now, the ICC was aroused by the precedent-setting nature of the situation before it, and the profile-raising opportunities presented. Uganda’s referral was the first before the Court. But it was also partial in that it sought to investigate only one actor in the “situation”.
A request for trial in absentia will be another first and equally one-sided enterprise. It does not explain how victims who are not witnesses will benefit from such an adversarial trial process, and is silent on reparations.
Curiously, public and civil society response to the ICC announcement has been muted in Uganda.
Whilst a trial in absentia will propel both Mr Kony and the ICC back into the spotlight, very few people in Uganda and internationally might be asking what happens to the nearly 2000 victims who participated in prior ICC investigations, and those who have been suffering silently.
Some of these victims, for example, abducted children and children born when their mothers were in captivity have since become adults. They are forging new identities and livelihoods and assuming responsibilities in households and at different levels of their communities.
The same survivors remain deeply disturbed and traumatised. Many of them will carry wounds of unrecognised belonging into generations. Indeed, many of those who qualified have died before receiving either symbolic or material reparations. This owes to the fact that reparations are in this case linked to the success of trials. This begs the question: who ultimately profits from such a trial and its associated publicity?
It is clear that the ICC and its backers are disinterested in solutions to intractable political problems that have left legacies of violence in Uganda, and given rise to different rebellions, including that of the LRA. Yet this is the backdrop against which human rights crimes and violations are committed. The “liberal” form of justice that the ICC proliferates is incapable of addressing those legacies, and remains inadequate in reconciling communities.
In many cases, not all survivors of conflict can have their voices elevated through adversarial criminal trials. Nevertheless, victims are best placed to talk about the violations they experienced or witnessed and how these continue to impact their lives and communities. They must speak within the rooms where decision affecting their lives are being made. One credible way is to amplify their power and agency in their quest for healing, freedom, rights, and justice through robust public and community engagements.
To this end, hearing of charges against Mr Kony must be relevant to the lives of people with first-hand experiences of conflict. This includes former internally displaced persons (IDPs), and all persons who suffered harm, physically, mentally, socially, culturally, and economically. To date, many of them are poor, destitute, and isolated economically, geographically, and socially. Their past is fading into memory but their present lives are difficult, painful, and abusive while their vision of the future is only a mirage.
In fact, some of the children who grew up in IDP camps lack identity locus entirely. Those who were in captivity or born out of sexual violence committed during the conflict know no fathers and are frequently shirked by their maternal relations. The conflict distorted identities, left many survivors disconnected from their cultural heritage, and bequeathed to them malfunctioning norms and social structures.
Allocating resources from ICC towards mental health and trans-generational trauma interventions would be an important positive step towards healing. This will complement traditional justice mechanisms that while tampered by conflict, nevertheless continues to facilitate communal reintegration.
Yet, the Prosecutor’s application is principally focused on Joseph Kony and his arrest. By its own admission, the ICC seeks to increase the international community’s efforts and commitment to apprehend Mr Kony. The Prosecutor justified his confirmation request by adding that “…These proceedings would also provide an opportunity to present the depth of evidence supporting the allegations of his criminal activities and allow for witnesses and survivors to provide their accounts to the Court.”
An additional intention is to add more charges to the existing 33 counts of war crimes and crimes against humanity if the hearing is granted. There is no doubt that justice—in its different iterations—must be done. Moreover, it must be seen to be done, a principle that will likely be absent in the said trials. In other circumstances, the efforts of the Chief Prosecutor would be exalted.
However, returning the ICC’s first and longest-standing suspect, Mr Kony, back to public consciousness, while saying little about reparation for victims, smirches of a self-serving motive. The Prosecutor’s intentions do not appear to be aligned with the needs of victims, and the well-being of affected communities. These goals and needs include public acknowledgment and truth-telling, reparations, and memorialisation.
Furthermore, the risks of re-traumatisation through the proposed trials are high. There are dangers of reviving memories not healed or elevating expectations that were never met and will never be met.
Whose life will therefore be positively affected by the proposed hearing—that of the Prosecutor or the lives of victims of conflict? Moreover, the lack of a restorative component makes trial justice ill-suited for rebuilding communities. The latter requires experiential and liberative truth (that victims of mass violence can relate with) as opposed to truth proven in courts of law, which is selective, individualised and disruptive to communities.
In March, the ICC, which is headquartered in Europe, issued arrest warrants against Mr Vladimir Putin and Ms Maria Lvova-Belova for crimes allegedly committed in Ukrainian-occupied territory. At the same time, Europe, the primary backer of the ICC, is obsessed with generating resources, disproportionately aimed at arming Ukraine and not responding to the victims of that conflict.
It is not our intention to draw parallels between the situation in Uganda and that of Ukraine. It is nonetheless striking that the Office of the Prosecutor is pursuing people it may never apprehend, leaving unattended the victims they have already identified and can easily reach.
Too little, too late?
In November shortly after the request was made, the Office of Public Counsel for Victims, demanded extra time to hold consultations on the Prosecutor’s request for confirmation of charges. Ostensibly, the extension was needed to “re-establish contacts with the victims concerned” which had “progressively diminished” due to the “inactivity of the case”.
We have been unable to trace evidence of any meaningful public discourse relating to the demand to re-establish contact with victims or any civic education that would prepare witnesses for such a trial. If indeed there are overtures to engage victims, they are being conducted in the same opaque fashion as the initial investigations.
Additionally, it has been established that only a handful of victims are being considered for participation in the trial and that there is limited appetite for wider consultations. This hesitancy to include a broad spectrum of victims and to consult widely points to the ICC’s perfunctory approach to justice, and its reluctance to recognise Uganda’s cultural-judicial sovereignty. Such an approach minimises the experiences of victims, limits participation to individuals chosen through a misty process, and denies communities the right to shape the contours of accountability for egregious crimes.
Above all, communities will no longer own the outcomes of justice, pre-empting efforts at reconciliation. For justice to be meaningful, it is important but not sufficient to put faces to the victims of Mr Kony’s atrocities but to undertake the widest consultations possible.
The arrest and trial of Mr Kony whether in person or in absentia constitutes only one element of national unity and in the long-term recovery of northern Uganda.
The decision on the confirmation of charges must consequently be complimentary and aligned with wider national and continental transitional justice frameworks.
After a painstaking process of development, the Government of Uganda approved a National Transitional Justice Policy in 2019. This Policy makes wide-ranging recommendations on trials, traditional justice, reparations, and even a nation-building process. T
he current Minister of Justice and Constitutional Affairs of Uganda, Mr Norbert Mao, has hinted at his intention to spearhead a national dialogue and reconciliation process that will include transitional justice components.
At a minimum, the posture of the minister indicates unambiguous political interest to carry forward the operationalisation of the National Transitional Justice Policy.
An ICC trial will compete with and detract from such a process, and potentially destabilise any dialogue and reconciliation initiatives.
Communities in Uganda are doing the everyday repair work of several generations. They must be given a platform to express their hopes for remedy and recovery. The preparations for a hearing in absentia must not undermine measures that are needed to mitigate against the escalation of tensions within and between communities, including conflict-related land wrangles and cross-generational divisions.
A revived focus on atrocities committed by Mr Kony must not emasculate the progress that has so far been achieved. This is unless the Court has safeguards to fool proof communities from relapsing into violence, which we are aware it does not.
From the precedent-setting nature of the original referral to the precedent-setting nature of a trial in absentia, the ICC would do well to recall prior caution against proceeding recklessly.
As the RLP did before, we are again highlighting the short-sighted and one-sided nature of such a trial process. There are many psychological, cultural, national, and international complexities and symbolisms that must be accounted for during such a trial.
At a minimum, however, the ICC will need to share power and control in determining the justice agenda in Uganda, with Ugandans.
A good starting point would be to share any resources earmarked for the trial with Ugandan authorities, to establish mechanisms for ensuring that victims directly benefit from such processes, and to support the reintegration of recent returnees from the Central Africa Republic (CAR). Or else, the trial in absentia—and the referral before it—look, on the face of it, like promotional campaigns for the Court and the presiding Prosecutor.
Pius D Ojara, PhD, Director Refugee Law Project, School of Law, Makerere University and Moses Chrispus Okello, Senior Researcher and Head of Research and Advocacy Department (2005-2012), Refugee Law Project School of Law, Makerere University.
About Kony trial
According to Britannica, the International Criminal Court (ICC) issued a warrant for Mr Joseph Kony’s arrest and made it public in October 2005. The ICC accused him of human rights violations that included some 10,000 murders and the abduction and enslavement of more than 24,000 children.
The action brought Mr Kony and the LRA under international scrutiny, and Sudanese support for the rebels was soon withdrawn. This led Mr Kony to make his first peace offering in May 2006 (his first public appearance in 12 years), but negotiations, which began in July 2006 in Juba, southern Sudan (now South Sudan), dragged. The ICC warrant proved to complicate the situation, because the prospect of arrest made Kony less likely to come out of hiding.
The Ugandan government sought to have the warrant suspended, but such a move was seen as potentially damaging to the integrity of the nascent court. Two years of verbal wrangling led to a peace agreement that was finalised in April 2008, but Kony refused to appear at a series of scheduled meetings to sign the document, demanding that the ICC suspend the warrants for him and other LRA leaders before he would sign the agreement.
Meanwhile, by the end of 2006 Mr Kony and the LRA had largely left Uganda and were now based in the neighbouring countries of the DR Congo and Sudan. In November 2008 Uganda’s neighbours, despite the LRA’s dwindling numbers, warned Mr Kony that failure to sign the document would result in a joint military offensive against the LRA.
Mr Kony, however, again failed to attend a scheduled meeting to sign the peace agreement. The next month, Operation Lightning Thunder—a military offensive led by Ugandan troops with support from Congolese and southern Sudanese forces—was launched against LRA bases in the Democratic Republic of the Congo, but the operation failed to capture Mr Kony or curtail the group’s activity. Although the international efforts to capture Mr Kony were not successful, they weakened LRA by the 2010s.
The authors can be reached through the email: [email protected]