Introduction
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 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. Why did the Prosecutor move on Kony and not 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.
Annotated background
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 Joseph 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?
Victims Experiences
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.
Self-Serving Trials
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 Joseph 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, Joseph 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 acknowledgement 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 2023, the ICC, which is headquartered in Europe, issued arrest warrants against Vladimir Putin and 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 to respond 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 for 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 culturo-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 Kony’s atrocities but to undertake the widest consultations possible.
National Solutions
The arrest and trial of Joseph 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. The current Minister of Justice and Constitutional Affairs of Uganda, Hon. Norbert Mao, has hinted at his intention to spearhead a national dialogue and reconciliation process, that will include transitional justice components. At 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 Joseph Kony must not emasculate the progress that has so far been achieved. This is unless the Court has safeguards to foolproof communities from relapsing into violence, which we are aware it does not.
Conclusion
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 high-lighting the short-sighted and one-sided nature of such a trial process. There are many psychological, cultural, national and international complexities and symbolisms which 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.
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Authors: 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.