A Crucial Case for the International Criminal Court

The following opinion piece appeared in the February, 27, 2004 issue of the International Herald Tribune. James A. Goldston is executive director of OSI's Open Society Justice Initiative. Chidi Anselm Odinkalu is senior legal officer for Africa of the Open Society Justice Initiative and the Jeremiah Smith Jr. Visiting Professor at Harvard Law School.

Last month President Yoweri Museveni of Uganda became the first head of state to ask the newly formed International Criminal Court to investigate a case. The court, ratified by 92 governments but detested by the Bush administration, remains in a delicate position. International perceptions of the court's competence and credibility—and the court's own viability—will be affected for years by the way its capable prosecutor, Luis Moreno Ocampo, handles the Uganda case.

By turning to the ICC, Museveni may be looking for a new way to settle scores. Since taking control of Uganda in 1986, Museveni has battled an odd combination of shamans, Bible thrashers and genocidaires on different sides of the Ugandan border.

In the late 1980s, Alice "Lakwena" Auma, a young woman from northern Uganda, led the Holy Spirit Mobile Forces to rid Uganda of human "impurity" before fleeing to neighboring Kenya. Lakwena's cousin Joseph Kony later formed the Lord's Resistance Army, whose aim was to install a Christian government based on the Ten Commandments.

From camps in southern Sudan, the LRA has waged a campaign of terror in Northern Uganda, abducting 20,000 children, using many as soldiers and sex slaves, and committing rape and murder. The LRA has reportedly mutilated some of its victims, cutting off limbs or other body parts. In an LRA attack last Saturday on a refugee camp, more than 200 civilians were killed.

In short, the LRA richly deserves prosecution. The ICC can make a major contribution by investigating and trying its leaders. But the crimes have not been committed by one side only. Uganda's army also faces allegations of abuses, including killing and forced displacement of civilians, though not on the scale of the LRA. To date, the government has made little effort to punish the responsible parties.

The Ugandan referral poses two challenges to the ICC's prosecutor.

First, he needs to put the LRA's leaders in the dock. Joseph Kony is said to be holed up in Sudan. That country has an incentive to hand over Kony. Its government recently sought to burnish its international image by ending one of its civil conflicts. Officials in Naivasha, Kenya, are finalizing an agreement to end Sudan's 50-year civil war with the Sudan People's Liberation Army in the south. With yet another war intensifying in the west, Sudan has its hands full.

This turn of events might lead Museveni, a trusted American client, to ask the U.S. government, the most influential guarantor of the Naivasha talks, for help in leveraging Sudan's cooperation. But Washington has no good will toward the International Criminal Court and cannot be counted on to pressure Khartoum. Kenya, host of the Naivasha talks, wants to steer clear of these conflicting interests.

Outside help is available, primarily through the Inter-Governmental Authority on Development, the regional security organization overseeing the Naivasha talks. The authority and its observer countries, Britain, Norway and Italy, should push for early completion of a Sudanese peace deal. The authority should urge its member states, including Kenya, Sudan and Uganda, to aid the ICC's prosecutor by promptly responding to requests for information and executing any arrest warrants.

A second challenge may be even greater. The ICC must fulfill its promise to mete out impartial justice for the most serious crimes, even where, as here, a case has been referred for political reasons. Museveni is seeking to amend the Constitution so that he can run for a third term as president in 2005. Prosecution of the Lord's Resistance Army by the ICC would win Museveni votes in the strife-torn north, where the population has been devastated by years of war.

Museveni's request only concerns the LRA, but the prosecutor's investigative powers extend to crimes committed by any party in Uganda. Moreno Ocampo should make clear that while he welcomes governments' cooperation, his office operates independently. A president cannot immunize himself from prosecution simply by referring a case against his opponents.

African leaders with dynastic designs on power who are putting down rebellions in their countries will be watching this case closely. Museveni's referral is a positive development, but it comes with risks. If it fails, the ICC gets the blame. If it succeeds, Museveni could reap immediate political reward with a legacy of far-reaching international dimensions.

Luis Moreno Ocampo has shown that he possesses sound judgment and ample diplomatic skill. All that and more will be required in investigating and prosecuting crimes in Uganda to the fullest. The future of the ICC depends on it.

Copyright © 2004 by the International Herald Tribune (IHT). Reprinted with permission.