On 7 October 2005, the Ugandan defence minister, Amama Mbabazi, made an announcement in Kampala:
The [ICC] investigation is complete and the court has taken a decision … The following people have been indicted: Joseph Kony, Vincent Otti [LRA deputy commander-in-chief], Raska Lukwiya, Okot Odhiambo and Dominic Ongwen … The warrants were served on Uganda for the government to execute the arrest order … We have decided to cooperate with the court and we call upon the public to cooperate in the arrest of any of these named individuals.1
He explained that the governments of the Democratic Republic of the Congo (DRC) and Sudan had been served separately with arrest warrants for the five men, and that the Ugandan warrants had been passed on to Uganda’s Director of Public Prosecutions in accordance with procedure. Mbabazi also noted that one of those ‘indicted’, Dominic Ongwen, had actually been killed in an engagement with Ugandan troops on 30 September.
Technically Mbabazi was not quite correct, the ICC does not ‘indict’, but moves directly to the issuing of warrants when judges in the pre-trial chamber accept an application from the Office of the Prosecutor (OTP). Also he had jumped the gun, because the existence of the warrants was still supposed to be a secret, although rumours about their existence had been circulating for some time.
It turned out that the OTP had actually made applications for warrants back in May 2005, but had requested that proceedings be under seal (i.e. kept secret) so that vulnerable groups would not be subject to risk of retaliatory attacks by the LRA, and so as not to undermine continuing investigative efforts. It was also requested that proceedings ‘remain under seal until the security conditions in potentially affected areas improve or further measures can be arranged …’2 The judges sitting in the pre-trial chamber II of the ICC had accepted the request, and when the warrants were issued on 8 July 2005, that too was kept under seal. However, confidentiality was not sustained. As an Amnesty International media briefing put it, ‘Unfortunately, certain persons who were informed of the existence of the warrants disclosed this information to the general public, thus increasing the risk that the accused will flee and dangers to victims and witnesses.’3
Interestingly, the initial leak does not appear to have come from the Ugandan government, but from the UN system – suggesting that the ICC’s procedures are not as widely understood as they should be. At the end of September, the UN Under-Secretary General for Political Affairs, Ibrahim Gambari, told a news conference in Nairobi that the ICC had issued an arrest warrant for Kony.4 Apparently, Gambari later said that he had ‘misspoke’, but by then other UN officials had confirmed that the warrant for Kony existed, and that there were also four others. The ICC at first refused to comment, but by the time Mbabazi made his announcement, there was little point in trying to maintain the fiction of confidentiality.
Any frustration about what had happened was kept well hidden by the court, and perhaps even suited the OTP. The OTP had made an application to the pre-trail chamber for the unsealing of warrants on 9 September, but the judges remained concerned about security issues. Following the initial leak in September, the OTP supplied the chamber with additional information on measures implemented for the protection of victims and witnesses. Taking this into account, and doubtless also the fact that information was already in the public domain, on 13 October 2005 the pre-trial chamber II decided formally to unseal the warrants.5 The judges stated that they were:
… satisfied on the basis of the information provided … that the overall plan in respect of the situation in Uganda for the security of witnesses and victims in the field has been completed and implemented; and that by the assessment and advice of the Prosecutor and the VWU [Victims and Witness Unit] this overall plan provides the necessary and adequate protective measures for all concerned at this stage.
Each warrant refers to the OTP’s general allegations that the LRA has: ‘engaged in a cycle of violence and established a pattern of “brutalization of civilians”’.6 They also mention sources indicated by the prosecutor as confirming the roles of the accused, including ‘statements from former LRA commanders, victims or witness accounts, radio broadcast recordings and short-wave radio LRA communications as intercepted by Ugandan investigative authorities …’ They then go on to list alleged crimes perpetrated by ‘the key members of “Control Altar”, the section representing the core LRA leadership’, for which they are held to be individually responsible. These refer to six attacks that have been the focus of the OTP’s investigation and, according to Chief Prosecutor Mareno-Ocampo, are ‘some of the gravest attacks on civilians which the LRA has carried out in Northern Uganda since July 2002’.7 Details of the alleged crimes are outlined, but with important details having been removed (‘redacted’) in the public versions.
The warrant for Joseph Kony lists twelve counts of crimes against humanity. He faces one count of sexual enslavement, one count of rape, four of enslavement, two of inhumane acts and four of murder. The remaining twenty-one counts are all of war crimes: four of murder (possibly of the same murders as the four counts mentioned as crimes against humanity), one of inducing rape, three of cruel treatment, five of pillaging, six of attacks against a civilian populations, and two of enlisting children. The warrant for Vincent Otti is similar. It lists eleven counts of crimes against humanity and twenty-one counts of war crimes. Okot Odhiambo stands accused of two counts of crimes against humanity and eight counts of war crimes. Dominic Ongwen (who Mbabazi claims is already dead) faces three counts of crimes against humanity and four counts of war crimes, and Raska Lukwiya one count of crimes against humanity and three counts of war crimes.
Issuing its first ICC warrants was an important moment. For UN Secretary-General Kofi Annan, it would ‘send a powerful signal around the world that those responsible for such crimes will be held accountable for their actions’.8 The EU High Representative for Common Foreign and Security Policy, Javier Solana, hailed it as a ‘historic decision … which expresses the Court’s wish to put an end to the impunity in a region that suffered so much from grave human rights violations’.
Human Rights Watch and Amnesty International were also positive, although they both drew attention to alleged ‘abuses committed by the Ugandan army’.9 According to a statement by Amnesty International: ‘The decision by the Prosecutor to proceed with issuing arrest warrants and, in doing so, resisting calls to suspend the investigation in favour of further political negotiations sends a clear message that without justice, there can be no prospect of a lasting peace for the region …’10 Nevertheless, Ugandan government accountability for ‘the massive forcible displacement of civilians and other crimes against humanity and war crimes’ had been overlooked: ‘The failure of the Prosecutor to seek arrest warrants against Ugandan government forces and their civilian superiors is a matter of deep concern because the Ugandan prosecutors have failed to investigate and prosecute such crimes during the 19-year conflict …’
Predictably, those who had questioned the ICC intervention all along were equally citical of the apparent one-sidedness of the warrants, and also dismissive of high-falutin claims about justice being done for LRA actrocities.11 When asked questions following his annoncement about the warrants on 7 October, Mbabazi explained that the Ugandan government shall ‘continue to encourage Bigombe in her efforts to talk peace with the LRA … and will treat the others [i.e. rebels for whom no warrants have been issued] as people we can hold talks with and who can benefit from the amnesty’. But those for whom warrants had been issued would ‘not be treated the same as before the indictment’. If Kony returned to Uganda from southern Sudan, the Ugandan military would attempt to arrest him on home soil and, if possible, they would pursue him across the border. He noted that the Ugandan Army Commander, Lieutenant General Aronda Nyakairima, was currently in Sudan requesting permission for Ugandan troops to cross the ‘red line’ beyond which it was not permitted to operate on Sudanese territory. For some it just sounded like an excuse for a reinvigoration of the military option.
Archbishop Odama of Gulu Catholic archdiocese responded to Mbabazi’s remarks with the observation that, ‘This is like a blow to the peace process. The process of confidence-building has been moving well, but now the LRA will look at whoever gets in contact with them as an agent of the ICC.’12 Writing at the end of 2005, Adam Branch argues that ‘the arrest warrants exposed the ICC’s betrayal of the very principles of justice and law upon which the global court is supposed to be based … [T]he ICC intervention represents a blatant instrumentalization of international law by the Ugandan government, which has, via the criminalization of the LRA, acquired international legitimacy for its military campaign and its refusal to engage in peace talks.’13
Earlier in the year, Betty Bigombe had threatened to withdraw from mediation talks if warrants were issued, and made her disappointment clear: ‘You can no longer talk to the LRA as before, the dynamics have changed … There is no doubt I need to make some adjustments, but the situation has been made difficult by the warrant …’ In the event she has not withdrawn, returning to Gulu in mid-November 2005, and has continued to talk to some of the LRA commanders on the phone. But her room for manoeuvre is certainly more limited. When I had asked Sam Kolo about the ICC soon after his surrender, he told me that Bigombe had said she would sort out any problems. As Mbabazi indicated, however, impunity under the Ugandan Amnesty Act is no longer possible for those named in the warrants. Now that the warrants are issued, even the OTP has a very limited role. The warrants cannot be withdrawn. There may the possibility of arguing that prosecution would not be in the interests of justice in the pre-trial chamber, but it is hard to see how a strong case could be made that would not compromise the purpose of the court. Vincent Otti, who has been doing most of the talking for the LRA, is aware that things have changed and that Bigombe may not be able to deliver much. For this reason he has been ringing other people, trying to forge alternative links and gather information about what is happening. He has been particularly concerned to know about such things as his rights to defence counsel, if he does end up in The Hague.
For Peter Onega, who chairs the Ugandan Amnesty Commission, the decision by the ICC to issue the warrants was a disaster. In his view, far from driving a wedge between the LRA leadership and the rest of the movement, it will allow them to consolidate their position and stop others surrendering. ‘I can tell you very few will come out … ICC should have known and measured out all the consequences before they issued out the warrant … Does the taking of only five people for prosecution in The Hague bring about reconciliation among the divided Acholi people?’14
The warrants clearly weaken his position. Even without them, however, the Amnesty Commission has come in for a great deal of criticism. The points made in the main text of this book, that the granting of amnesty has appeared to reward certain individuals for perpetrating violence, have been given greater weight by the increased provision of ‘amnesty packages’. Moreover, there are still bottlenecks in the allocation of amnesty cards, and a continuing muddle about what ‘amnesty’ means. In a survey that my research team carried out in mid-2005 based on interviews with over 200 ‘formerly abducted people’ who had passed through the official reception centre process, we found that only 25 per cent had even heard of the Amnesty Commission, let alone applied for an amnesty certificate, and most of those that had heard of it had very confused ideas about what role it played.15 We also found little evidence that the amnesty was an important factor in encouraging LRA combatants to surrender. Only senior commanders and some middle-ranking officers considered it significant.
To make things even worse for the commission, Amnesty International has seized upon the contradictions in the legal status of the Ugandan Amnesty Act. In the statement made supporting the ICC warrants, Amnesty International also made the following points about crimes against humanity and war crimes.
The government of Uganda, as a state party to the Rome Statute, must take immediate steps to end the impunity it has imposed on the country by bringing to justice thousands of others accused of such crimes, including Ugandan government forces and their civilian superiors … Most of these crimes committed are covered by a national amnesty law adopted by the Ugandan government that prevents prosecutions in Ugandan courts, although amnesties for crimes against humanity and war crimes are prohibited under international law … The ICC in addition to prosecuting the accused, has a major role to play in working together with the government of Uganda and other governments to ensure that national courts investigate and, where there is sufficient admissible evidence, prosecute all persons suspected of such crimes including members of Ugandan government forces and their civilian superiors. In particular, Uganda must revoke its unlawful national amnesty seeking to protect perpetrators of the worst possible crimes from justice and begin comprehensive national investigations and prosecutions as soon as possible.
The ICC has kept out of these discussions, and staff continue to sidestep the issue by saying that amnesties are strictly a matter for national judiciaries. But really this is another way of saying that there is a basis in international law for national amnesties to be ignored. As one OTP staff member put it, ‘Our intervention can be reconciled with the amnesty. We ignore it, and in a way they sort of reinforce each other.’ Nevertheless, the existing Ugandan amnesty is certainly incompatible with the incorporation of the Rome Statute of the ICC into Ugandan law (which has still not happened). It means that, in theory, the legal status of the ICC warrants might be challenged in Ugandan courts, although it is unlikely that any case against the warrants could be pursued without governmental support.16 It is much more probable that the Amnesty Act will be revised, or will just be set aside when it raises difficulties.
Whatever the status of the Amnesty Commission, Onega’s point about the LRA leadership consolidating their position in response to the warrants has been shared by others, notably staff of aid agencies working on the ground in the war zone. There were concerns that they would become targets for LRA attacks, and that there will also be more attacks on IDP camps. When I returned to the war zone for two weeks in early November 2005, fears about the effects of the warrants seemed to have been confirmed by reports of LRA activity, especially in Kitgum and Pader districts, and across the border in parts of southern Sudan. Relief agencies had curtailed their operations in northern Uganda in late October, following three ambushes of staff in which two people were killed and four injured. The UN operations had resumed on 1 November, but on the following day de-mining activities were suspended in southern Sudan by the Swiss Foundation for Mine Action after two of their workers were killed. On 5 November another NGO worker was killed in Sudan and his wife and driver seriously wounded. Then on 8 November, a British resident of Uganda was killed in an ambush inside the boundaries of the Murchison Falls National Park, to the south west of Gulu. At the same time, a document ostensibly from the LRA was circulated, claiming that aid workers were now being targeted. There were no further ambushes of aid workers and expatriates in the following weeks, but attacks on civilians continued. In the worst of these, a minibus full of people was attacked in daylight hours close to the town of Pader, killing at least twelve people.
Not surprisingly, these incidents have been seen by those who had opposed the ICC intervention as evidence that the warrants were a blunder. It is not at all clear, however, that they are the result of a coordinated strategy. When I spoke to senior army officers in November, they were sceptical that the LRA had a new policy. In their view, the attacks on expatriates were probably being made by groups of rebels who wanted to steal things, so that they would have something to live on when they surrender, and they thought that the killing on 8 November had not been intended. There was evidence that the main aim of the ambush had been theft, and it was not the first such robbery to have occurred in Murchison Falls Park. Speaking by a satellite phone, probably stolen from an aid agency vehicle in Sudan, Vincent Otti accepted that some of the incidents in Sudan were LRA actions, but categorically denied that there was a policy of attacking aid workers. He was encouraged to phone the BBC World Service and make a statement. He did this at the end of the month, saying that he wanted to ‘talk with the government of Uganda to end the rebellion, because now we fought for twenty years – we are ready for this talk from today’. He also told the BBC that he was willing to cooperate with the ICC, but added that government officials should also face justice at the same court because they ‘were responsible for some of the crimes committed in northern Uganda.’ Government officials, however, were not impressed, saying that the rebels are ‘just buying time to reorganize themselves’.17
The current situation in mid-December 2005 is that Otti is continuing to talk to various people, including those mediating on behalf of the Ugandan government.18 He also now has a better understanding of what would be involved in a trial based in The Hague, including the fact that he would not face the death penalty and would have defence council. It is hard to know, however, the degree to which he still speaks for Joseph Kony. There continue to be occasional, relatively small-scale attacks by LRA groups in Uganda, much as there were before the warrants were issued, but there have been no more fatal ambushes of aid agency vehicles. The overall political situation in the country has become tense, following the arrest of the leader of the opposition in mid-November, and there have been growing criticism of President Musevini’s human rights record.19 There has also been pressure on the government to change its policies in the north.
The Human Rights Watch statement on the ICC warrants, like that of Amnesty International, emphasized the need to prosecute the UPDF and government officials, and it referred to a scathing report which had been published by the organization in September.20 This had documented numerous extrajudicial killings, rapes, arbitrary detentions and assaults by government forces that had occurred during the preceding twelve months, and ‘a climate of fear and intimidation which impedes accountability’. In combination with the publication of the WHO study on the mortality and morbidity rates in the camps in July 2005, the Human Rights Watch report had contributed to demands for a change. It has become more widely recognized that the IDP camp approach is not an acceptable response to LRA incursions, and has political as well as strategic motivations. The Ugandan government has of course not accepted the criticisms, and the Ministry of Health has sought to distance itself from the WHO mortality and morbidity survey results. Presedent Museveni, however, has publicly called for plans to close some of the camps (those in Lira district) as soon as possible.
Events in Sudan are more difficult to gauge. Groups of LRA are still active, and they have probably continued to receive support from factions in the Sudan government or the Sudanese army. But they do not appear to be in a position to organize major incursions into Uganda. International pressures have forced the Sudan government to allow the UPDF to move beyond previously set limits in Sudan, and to operate without always giving prior notice.21 It is, of course, also having to deal with the prospect of ICC warrants for crimes perpetrated in Darfur, including the possibility of warrants being issued for senior government officials – so there are doubtless other reasons too why links may be cut with the LRA. As for the SPLA, far from the death of Garang leading to a collapse in the peace process, the organization’s new leader, Salva Kir, has given the impression of being more committed to stopping ongoing armed conflicts on the south, and has been prepared to be more cooperative over security issues. As one of those involved in the negotiations put it to me, ‘Frankly, the death of Garang has promoted stability in the south (i.e. southern Sudan) and improved the chances of peace. Kir is proving to be a better leader for the SPLA.’ At the end of November, a memorandum of understanding was agreed between the government of Uganda, the SPLA and the government of Sudan to cooperation in the execution of warrants. The government of the DRC had already agreed to execute the warrants as well. So the LRA leadership may now be beginning to feel that a trial in The Hague is a realistic prospect.
From the point of view of the ICC, the situation in Uganda has turned out rather better than might have been expected a year ago. Staff at the court claim that the intervention has actually proceeded according to their ‘plan B’. Once it became apparent that there were local complexities, they decided ‘to allow the peace process to take shape’. The OTP was required to keep a low profile for the investigators to be able to operate, but it was decided that the registry too had to keep a low profile for the first year: ‘It was a deliberate policy. We had intended to pull back if negotiations were completed. Now we are raising our profile.’ Among other things, the ICC has published an information booklet, which was included in the Ugandan daily newspapers after the warrants were unsealed, and Chief Prosecutor Moreno-Ocampo has recorded a statement on the prosecutions, which has been broadcast on Mega Radio from Gulu.22
When asked about the absence of warrants for the Ugandan government, I was told by the OTP that: ‘The UPDF has been investigated, but alleged crimes perpetrated by the Ugandan government were not grave enough to reach the threshold. We focus on the gravity of a crime.’ I also asked about the choice and the protection of witnesses.
We have had no witnesses who have refused to testify. We have found that all victims want to say what has happened to them, and we have not found any differences in willingness to testify between the different groups. Acholis have been just as willing to testify as the others. We selected alleged crimes partly on their geographical distribution – including crimes in Acholi area … The bulk of the witness protection comes before the trial. We have to make a careful assessment before making contact. We always have a psychologist with us, who makes an assessment before we proceed with an interview. When it comes to the court proceeding, witnesses can present in camera, and we certainly can preserve anonymity. We will never put a witness in jeopardy. We know exactly how we will protect witnesses, and we are confident that our witnesses are secure.
The judges in the pre-trial chamber, however, have their doubts. Towards the end of November a decision was made to convene a status conference, in a closed session, on matters related to safety and security in Uganda. This was done in response to: ‘recent reports in the Ugandan and international media on serious attacks and violence against civilians in northern Uganda and southern Sudan, allegedly by the Lord’s Resistance Army, resulting in the death of at least twenty-two civilians, including humanitarian workers, as well as in a significant number of injuries and abductions …’ The judges had concerns ‘about the impact of such serious attacks and violence may have (1) on the overall plan for safety and security of victims and witnesses and (2) on the security of the Court in the field …’23
It is also important to reiterate that if the accused do end up in court, there will be cases prepared for the defence, and protection of defence witnesses may prove to be more difficult than protection of those for the prosecution, particularly in the light of current political developments, which have included threats to the Ugandan judiciary. If proceedings in The Hague look as if they might be embarrassing or worse for the government, defence witnesses may well be vulnerable (as senior army officers based in Gulu told me a year ago when I explained the court process to them). At the same time, pressures may increase on the OTP both from donors and from within the ICC system to come up with arrest warrants for government representatives. Forcible displacement of population is a war crime under the Rome Statute, and it has obviously occurred on a massive scale. It is hard to see how it lacks gravity. It may be difficult to find enough evidence with which to hold individuals accountable but, according to the text of another decision made in the pre-trial chamber in early December, ‘OTP investigations and assessments of allegations made against the military forces of the Government of Uganda are ongoing.’24 There is also the possibility that the Security Council will pass a resolution critical of the Ugandan government.25
As far as holding the LRA high command to account is concerned, now that warrants are unsealed, the initiative has passed from the OTP to the states parties who are required to execute them. There are signs that measures are being put in place to do that, possibly including the deployment of ‘special forces’. The role of the USA in these events is unclear, and efforts will probably be made to keep any support for the execution of the warrants secret. The USA is, however, interested in spending substantial funds on the reconstruction of southern Sudan and in increasing assistance to northern Uganda. The Bush administration has also had to adjust its outright antipathy to the ICC since the Security Council referral of Darfur and, as has been mentioned, the State Department has played a role in brokering security collaboration between the SPLA and the governments of Uganda and Sudan.26 Whatever plans are being made, the ICC needs things to move on quickly. Many analysts and activists have argued that the introduction of international criminal justice has already been an obstacle to peace. I have disagreed. But it may become so if the warrants are seen to lack credibility and LRA commanders retain a capacity to initiate violent acts. It will not be long before those interested in establishing political order look for ways of sidelining the court. For the ICC, the clock is now ticking.27