JUSTICE STANDS IN THE WAY OF UGANDAN PEACE
by George Jonas
National Post
May 16, 2005

Earlier this month, The Economist
ran a piece about the dilemma
facing those who would like to see
the slaughter end in Uganda, but
also want the people responsible for it punished. The question arose in
relation to
the most powerful -- and at the same time least powerful -- court of our
times: The
International Criminal Court (ICC).

The ICC can assume jurisdiction over a wider range of individuals for a
wider range of
allegations in a wider range of places than any other court. At the same
time it has
fewer means at its disposal than any tribunal to assert what it assumes.
ICC officials
may be described as anglers trying to land the biggest fish with the
lightest tackle. Or
as limousine liberals in black robes.

The newly minted (2002) international bench has been itching to put itself
on the
map and launch its maiden case. Just when it thought no one would ever ask
it to the
prom, Uganda's government did, in January, 2004. Now the ICC needs to
decide
whether it would rather prosecute those responsible for 18 years of civil
war in
Uganda's Acholi tribal region or become part of the peace process by
declining to
charge the alleged war criminals.

Choosing the first means that unspeakable atrocities, reminiscent of Pol
Pot's in
Cambodia, may continue in northern Uganda for some time. Choosing the
second
means that leaders like Joseph Kony, reminiscent of Pol Pot himself, may go
unpunished.

Mr. Kony's rebels call themselves The Lord's Resistance Army (LRA). They
reportedly
enlist some children to fight with them and mutilate the rest. The Ugandan
army
hasn't been able to contain the fanatic insurgents, who lately have started
showing a
willingness to negotiate. Mr. Kony's getting long in the tooth.

Is the peace process more important, or is it more important not to let
alleged war
criminals like Mr. Kony off the hook? ICC-types such as chief prosecutor
Luis
Moreno-Ocampo believe it's the second. They're betting their limousines on
it. Tribal
leaders like Acholi chieftain Rwot Acana II believe it's the first. They're
betting their
children's lives on it.

No suggestion here that the Acholi chief is necessarily right because his
stakes are
higher. But right or wrong, the peace-loving chief is powerless against the
militant
prosecutor. Mr. Moreno-Ocampo can do whatever he likes.

Let's take this back. The Netherlands-based bureaucrat can't drive his limo
to Africa,
clap the bad guys in irons and bring them back to The Hague. The ICC
commands no
troops. It cannot keep war criminals from fighting, only from the
negotiating table.
While a zealous prosecutor can't prevent war, he can do much to prevent
peace.

Through his unfettered discretion to prosecute Mr. Kony and his lieutenants
should
they ever set foot in a place where he can grab them, Mr. Moreno-Ocampo has
the
means of prolonging the slaughter. He only lacks the means of shortening
it. Which is
one of the many things wrong with the court in The Hague.

In July, 1998, while the media celebrated the ICC's birth at a UN-sponsored
conference in Rome, I suggested that if such a court wished to protect the
peace, it
might have to make a mockery of justice, and if it insisted on justice, it
might be
obliged to wreck the peace. I had in mind then the Dayton accords that
ended the
bloody conflict in Bosnia. Peace would never have been negotiated between
Serbia's
Slobodan Milosevic and the late Franjo Tudjman of Croatia, had either been
under
indictment for war crimes at the time.

The ICC's first case happens to match this hypothetical. Immunity for Mr.
Kony,
whose LRA troops are alleged to slice off children's lips and noses, would
be a
mockery of justice. But prolonging the practice by letting a symbolic
indictment in
Holland wreck the chance for peace in Uganda could be described as a
grand-standing prosecutor using children's blood to fuel his limousine.

Students of the ICC, whether they've opted for peace or justice, can start
putting on
their coats. Class is over for them. They'll have to do their homework to
defend their
choices, that's all. Those who want both peace and justice, however, must
stay after
class.

No civilization in history set up a tribunal like the ICC. Some
ecclesiastical courts,
such as the one that burned Joan of Arc, came closest. Perhaps our
ancestors weren't
morally advanced enough to seek international justice -- or perhaps
international
conflicts aren't amenable to the same resolutions we apply to internal
conflicts.
Perhaps political disputes between, or even within, nations have a specific
weight that
needs to be measured by different scales.

Perhaps war and insurgency aren't police matters. Perhaps we've been on
safer moral
ground when we've tried defeating our foes without necessarily judging
them, than in
our brave new ICC-era when we judge our foes without necessarily defeating
them.
Joseph Kony is no Joan of Arc, but -- arguably -- Joan of Arc was no Saint
Joan
herself. Perhaps she was a war criminal. Perhaps making her a saint was as
arbitrary
and political a decision as it was to burn her at the stake.

© National Post 2005

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