Authors: Unknown
Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (22 page)
However, in 2006 the Juba peace process was initiated. Although the Juba peace process failed to reach final agreement, it did result in a signed Agreement on Comprehensive Solutions to the Conflict, including Agenda Item 3, Agreement on Accountability and Reconciliation (AAR). This Agreement and its Annexure set out a broad framework for transitional justice, including promising “to address conscientiously the question of the ICC arrest warrants” (AAR art. 14.6), to establish a War Crimes Division of the High Court (Annexure art. 7), and to establish traditional justice mechanisms such as
mato oput
as a “central part of the framework for accountability and reconciliation” (AAR art. 3.1; Annexure art. 19–22). But Kony repeatedly failed to sign the Final Peace Agreement, insisting that the ICC indictments first be revoked and citing the need for clarification on whether undergoing
mato oput
obviates criminal prosecution for war crimes and crimes against humanity.
64
While many factors beyond the scope of this chapter are at stake, it is not unreasonable to speculate that the ICC indictments have played a role in impeding peace and destabilizing the region. At the very least, the ICC’s intervention forced the simultaneous pursuit of peace
and
justice, thereby eclipsing what many saw as the only viable path: “peace now, justice later.”
65
While some Acholi supported the ICC intervention, according to one survey at the height of negotiations in 2007, 84 percent of respondents indicated willingness to accept amnesty if it were the only means to peace.
66
Of course, neither lifting the indictments nor signing a piece of paper are themselves guarantees of peace.
67
While the ICC could be persuaded to drop its prosecution “in the interests of justice,” as per Article 53 of the Rome Statute, the Office of the Prosecutor states that “there is a difference between the concepts of the interests of justice and the interests of peace and that the latter falls within the mandate of institutions other than the Office of the Prosecutor.”
68
Political and moral considerations about what justice might mean in the midst of poverty and conflict are isolated from technical appraisals of who has the authority to suspend a prosecution.
69
“Justice” is narrowed to individual criminal accountability for the most serious crimes and the presumption is in favor of investigation or prosecution.
70
In this way, the legalism of the ICC indictments (whether prosecuted or not) is prioritizing a mode of justice that does not attend to the complexities of the conflict.
To be clear, however, this mode of justice in all likelihood also suits the Ugandan government. First, consistent with the general critique of legalism, international justice can neither address nor modulate the socio-economic roots of the conflict, most especially Kampala’s chronic neglect of the north. Second, the Rome Statute does not allow for the prosecution of crimes committed prior to 2002.
71
Failing to prosecute crimes perpetrated during the first 15 years of conflict in Northern Uganda will necessarily produce a limited narration of violence and accountability. Third, this narration of violence and accountability is
one-sided. The ICC’s unwillingness to investigate or prosecute the Ugandan Patriotic Defence Forces (UPDF) for their alleged war crimes shows a selectivity that will greatly impede its ability to establish justice or the rule of law within Uganda.
72
Moreover, as Finnström argues, by ignoring UPDF crimes, the ICC has reinforced the Ugandan government’s discursive positioning of the LRA as an organization of children and criminals, devoid of political subjectivity, who surrender to an untouchable and superior government for amnesty.
73
This is not to deny the monstrosity of LRA crimes or to morally equate violations on both sides. But formal accountability for violations committed by both sides of the conflict could help forge the terrain for peacebuilding and reconciliation.
Fourth, formal criminal justice alone cannot attend to the complexities of the conflict, especially the abduction of children, and subsequent needs of peacebuilding. At the community level, the desire to return and integrate abductees has been readily apparent in people’s calls for traditional justice. Although Northern Uganda’s victims of violence by no means speak in a single voice (and not all victims are Acholi), there is vocal antipathy from Acholi Elders, Chiefs, and religious leaders toward international justice. They see it as an externalized form of Western justice and fear it would wreck the peace process. The imposition of victors’ justice inscribes an “us-versus-them” mentality which is hierarchical whereas, in comparison, traditional rituals have the potential to operate as a mode of conflict resolution between equals.
74
As Baines convincingly argues, because many perpetrators were abducted as children, “the search for ‘pure victims’ and ‘tainted perpetrators’ will ultimately set up the process for exclusion, dehumanisation and future violence.”
75
She raises the case of indicted LRA leader Dominic Ongwen, who was abducted at age ten, arguing that individualized prosecution fails to explain why the abduction and abuse of children were normalized in the broader context of forced displacement and structural violence.
76
As Quinn notes in this volume, now that the height of the conflict has passed, the people of Northern Uganda
do
want justice.
77
Events have fluctuated over the years, but it now seems that the preferred alternatives in Uganda are: the prosecution of those who bear the greatest responsibility for war crimes in the new division of the Ugandan High Court; amnesty for the rank-and-file LRA; a truth commission; and the use of traditional practices aimed at the cleansing and reintegration of some combatants.
78
The ICC supports the use of traditional justice as a “complementary” process at the local level.
79
The Government of Uganda, through its Justice, Law and Order Sector Transitional Justice Working Group, appears to be in the process of determining the inclusion of customary law within the War Crimes Division of the High Court.
It has been suggested that 90 percent of perpetrators will be dealt with through traditional justice,
80
including many mid-to-high-ranked commanders who, like Ongwen, were once abducted children. Traditional mechanisms include numerous elements—cleansing and welcoming, retribution and punishment, truth-telling and dialogue, reparation, and reconciliation and forgiveness.
81
Some of the more well-known ceremonies are
mato oput
(“drinking the bitter herb”),
nyono tong gweno
(“stepping of the egg”), and
gomo tong
(“bending the spear”). However, there is little clarity or consensus about the application of traditional mechanisms for war crimes and crimes against humanity, especially gender-based violence. For example, cultural institutions are the traditional preserve of elder males along certain bloodlines. Given the specific needs of women and girls who have been targeted in sexual and gender-based ways, it is not at all evident, contrary to what Latigo claims, that their involvement in playing “complementary roles … to their adult male counterparts without
undue
discrimination” will be sufficient.
82
Moreover, there may be a distinct political agenda at work in relying primarily upon Acholi mechanisms. Tim Allen argues:
Using “traditional justice” risks implying that the government and the rest of the country have nothing to do with the northern conflict, and also that northern Ugandans need their own special justice measures, because they are not yet ready for modern ones … The obsession of so many concerned about the suffering in northern Uganda with “traditional justice” inadvertently reinforces a tendency to demonise the people of the region. For political and historical reasons, the Acholi in particular are caricatured as innately violent and primitive. They are therefore thought to be less concerned about terrible acts than other populations. In Kampala, this is offered as an explanation for their willingness to forgive, and it is common to hear comments about leaving the uncivilised northerners to their own devices. The campaign for regionally and “tribally” specific traditional justice has done nothing to promote national integration.
83
While I would modulate Allen’s tendency to treat international justice as untainted by self-interest or social invention,
84
the relevant caution here is about the appropriation of tradition. This warning resounds particularly in light of developments in Rwanda, where we see traditional justice being pursued for state purposes beyond truth, justice, or reconciliation. It is odd, then, given Allen’s immense critique of the state’s politicization of tradition in Uganda, that he points to
gacaca
as a potential model for a national initiative of traditional justice in Uganda.
85
It remains to be seen how traditional mechanisms will be incorporated into a full-blown national process of transitional justice, though the non-governmental Beyond Juba Project calls for a “multi-tiered” approach at the clan, tribe, and national levels. It is possible that the codification of tradition will be seen as necessary, both to meet international standards and to standardize accountability. This might weaken the “many resonances and associations of lived rituals.”
86
Moreover, it would bring traditional practices further under the purview of the state. Cultural institutions have only been recently revived in Uganda and over the course of the conflict their legitimacy and status have been weakened.
87
In this, cultural leaders both face an uphill struggle and stand to gain much from the development of traditional justice. Traditional leaders and institutions are financially supported by the government, which to an extent has co-opted traditional
leaders by relying on them to help implement government policy.
88
A strong government hand would likely inform justice on the ground, given that there has been little input from cultural institutions and traditional leaders as to how to codify or formalize traditional practices.
89
Thus, although the push for traditional justice may truly have come “from below” within certain sectors of Acholi society (as did not really occur in Rwanda), institutionalization may render it increasingly subject to state power and Museveni’s interests in controlling national discourses of peace, justice, and reconciliation.
Conclusion: Centralizing Legal Pluralism?
The turn to tradition within transitional justice is primarily recognized as a corrective to the flaws of “one-size-fits-all” solutions. Yet, just as customary law was “made” through its interaction with colonialism, so too is traditional justice now “made” through its interaction with international transitional justice as mediated by the state. In Rwanda, although
gacaca
emerged in resistance to the centralizing pressures of international legalism, it is less an example of pluralization “from below” than it is a creature of state power.
Gacaca
is codified and administered by the state, and its daily operation is constrained by state-sanctioned narratives of national unity and reconciliation. Are similar mechanics at work in Uganda? While it may yet be too early to tell, there is some foreshadowing of tradition being appropriated for the consolidation of state power through local traditional leaders. If so, rather than laying the foundations for national peace, this approach risks socially isolating the Acholi people from the rest of the country, isolating LRA crimes from broader structural violence, and ignoring UPDF crimes.
In Rwanda, it is becoming very clear that transitional justice is not functioning as an instrument of peacebuilding. Traditional justice has the potential to build peace and stability from the “bottom up” in line with community needs and values. But this is not occurring. Instead,
gacaca
is an instrument of authoritarian state power that exacerbates conditions of structural violence. One obvious response to state authoritarianism is the application of international pressure for such processes to meet basic human rights standards. Yet, when international standards are applied to traditional mechanisms—and this is often done for the sake of protecting the rights of victims and perpetrators—we risk “one-sizing” traditional justice. This is not to discount the normative ideal that perpetrators of crimes against humanity ought to be held to similar standards of accountability across the globe. Rather, this chapter cautions that efforts to pluralize transitional justice in response to centralized flaws may instead result in tradition being doubly subject to centralizing forces. That successor states often use transitional justice to consolidate their new regimes is not surprising or unusual. What is perhaps different in these situations, however, is that traditional justice is recommended as a popular, accessible, community-based form of justice that helps to embed both cultures and structures of peace. But, as the analytical theory in this paper suggests, tradition is located within complex interrelations of power that
span from the local to the international. In the dynamics of legal pluralization and centralization, these relations of power potentially converge to give the state, and not conflict-affected populations, control over justice and reconciliation such that cultures and structures of peace are undermined.
Notes
1
I would like to thank Chandra Lekha Sriram for her guidance and my fellow authors for their excellent suggestions and questions at our authors’ meeting, especially Lars Waldorf, Par Engstrom, Joanna Quinn, and Stephen Brown. I would also like to thank Franklin Oduro for comments on an early version of this paper. Emily Gillespie has my gratitude for her assistance with the references. All errors or omissions are mine.
