Courting Conflict? Justice, Peace and the ICC in Africa Edited by Nicholas Waddell and Phil Clark Courting Conflict? Justice, Peace and the ICC in Africa Edited by Nicholas Waddell and Phil Clark About The Royal African Society Now over 100 years old, the Royal African Society is Britain’s primary Africa organisation. Through its journal, African Affairs, and by organising meetings, discussions and other activities, the Society strengthens links between Africa and Britain and encourages understanding of Africa and its relations with the rest of the world. The Society, based at the School of Oriental and African Studies (SOAS) in London, has over a thousand members and has branches in Bristol and Scotland. The Society’s Director is Richard Dowden, a journalist working on Africa for more than 20 years and formerly Africa Editor of The Independent and The Economist. For further information, see: www.royalafricansociety.org ISBN 978-0-9558622-0-5 Published March 2008 Design: LSE Design Unit (www.lse.ac.uk/designunit) Cover image: militia leader Germain Katanga sits in the courtroom of the International Criminal Court, The Hague. ROBERT VOS/AFP/Getty Images Contents Acknowledgements 2 About the contributors 3 List of abbreviations 5 Foreword Justice Albie Sachs 6 1. Introduction 7 Nicholas Waddell and Phil Clark 2. Justice in Conflict? The ICC and Peace Processes 13 Nick Grono and Adam O’Brien 3. Justice at Juba: International Obligations and Local 21 Demands in Northern Uganda Marieke Wierda and Michael Otim 4. Darfur, the Court and Khartoum: 29 The Politics of State Non-Cooperation Alex de Waal 5. Law, Politics and Pragmatism: The ICC and Case 37 Selection in Uganda and the Democratic Republic of Congo Phil Clark 6. Ritual (Ab)use? Problems with Traditional Justice 47 in Northern Uganda Tim Allen 7. Global Catalyst for National Prosecutions? 55 The ICC in the Democratic Republic of Congo Géraldine Mattioli and Anneke van Woudenberg 8. The International Criminal Court and its Relevance 65 to Affected Communities Mariana Goetz 9. One among Many: The ICC as a Tool of Justice during Transition 73 Graeme Simpson Courting Conflict? Justice, Peace and the ICC in Africa 1 Acknowledgements This collection stems from a meeting series held in London in March 2007. Designed by the editors and organised principally by the Royal African Society, the series benefited from funding and input from the Crisis States Research Centre at the London School of Economics (LSE), the International Center for Transitional Justice, the Transitional Justice Institute at the University of Ulster, the Conflict Research Group at the University of Ghent and the Development Studies Institute at LSE. The Royal African Society is grateful to the LSE’s Crisis States Research Centre for additional support towards this publication. The editors would like to thank Sarah Nouwen at the University of Cambridge for her insightful and invaluable comments on several drafts of this collection. 2 Courting Conflict? Justice, Peace and the ICC in Africa About the Contributors Tim Allen is a Reader in Development Studies at the London School of Economics. His work focuses on complex emergencies, forced migration, local conceptions of health and healing, development aid and the ethics of aid. He is the author of Trial Justice: The International Criminal Court and the Lord’s Resistance Army (2006) and the editor, with Koen Vlassenroot, of The Lord’s Resistance Army: War, Peace and Reconciliation (forthcoming). Phil Clark is a Research Fellow in Courts and Public Policy at the Centre for Socio- Legal Studies, University of Oxford, and co-founder and co-convenor of the Oxford Transitional Justice Research Group. His work focuses on conflict and post-conflict issues in Africa, particularly justice and reconciliation in the Great Lakes. He is the editor, with Zachary D Kaufman, of After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond (forthcoming). Alex de Waal is a Fellow of the Global Equity Initiative at Harvard University, a Director of Justice Africa and a Programme Director at the Social Science Research Council. His recent books include Darfur: A Short History of a Long War (Second Edition, 2008; with Julie Flint); War in Darfur and the Search for Peace (editor, 2007); Famine that Kills: Darfur, Sudan, 1984/85 (1989, revised, 2004); and Islamism and its Enemies in the Horn of Africa (editor, 2004). Mariana Goetz is Advisor to the ICC Programme at REDRESS (UK) and a facilitator of the Victims’ Rights Working Group of the NGO Coalition for the International Criminal Court (CICC). She has worked with the International Criminal Tribunal for Rwanda (ICTR) and was the Legal Advisor to the Registrar of the Special Court for Sierra Leone. Mariana has also undertaken training for the International Bar Association. Nick Grono is Vice President for Advocacy and Operations at the International Crisis Group. He has responsibility for the operation of all programmes and executive oversight of Crisis Group’s operations, research unit, media and IT. He also coordinates Crisis Group’s advocacy efforts worldwide and leads Crisis Group’s work on ICC-related issues. Géraldine Mattioli is Advocacy Director for Human Rights Watch’s International Justice Programme. She previously worked with Amnesty International’s Justice Project and with Field Diplomacy Initiative, a Belgian NGO, on the issue of justice for past serious human rights violations in Rwanda. Adam O’Brien was Crisis Group’s Uganda Analyst from 2006 to 2008. He previously worked with Monitor Publications in Kampala. Adam has written widely on conflict and justice issues in northern Uganda. He recently graduated from the Temple University Beasley School of Law. Courting Conflict? Justice, Peace and the ICC in Africa 3 Michael Otim is Director of the Gulu District NGO Forum, and has official observer status at the Juba talks. He is Project Coordinator for the Justice and Reconciliation Project, which has conducted extensive research into traditional justice in northern Uganda as well as providing support to the traditional Acholi leadership. Albie Sachs is a Justice of the Constitutional Court of South Africa. He was appointed in 1994 by President Mandela in the wake of South Africa’s first democratic elections. Before returning to South Africa in 1990, he was in exile and was a bomb target of South African agents due to his activism as a lawyer and his leading role in the African National Congress. He is the author of numerous books. Graeme Simpson is the Country Programs Unit Director of the International Center for Transitional Justice where he oversees ICTJ’s work in more than twenty countries. He is also an Adjunct Professor at Columbia University Law School. He has worked with the South African Truth and Reconciliation Commission and on the transformation of criminal justice institutions in South Africa. Graeme was a founder and, from 1995-2005, executive director of the Centre for the Study of Violence and Reconciliation, in Johannesburg. Anneke van Woudenberg is a Senior Researcher (DRC) at Human Rights Watch, having joined in 2002. She was previously Oxfam GB’s country director for the DRC during the height of the DRC conflict. She has written numerous reports and briefing notes on human rights in the DRC. Nicholas Waddell is the Royal African Society’s Research Coordinator. He has developed humanitarian and conflict prevention policies for the UK’s Department for International Development and has been a research officer at the Overseas Development Institute’s Humanitarian Policy Group. Marieke Wierda is a Senior Associate at the International Center for Transitional Justice and head of ICTJ’s prosecution programme. Her work includes leading international justice programmes on Uganda, Sierra Leone and Afghanistan. She has advised on justice issues at the Juba peace talks and contributed to ICTJ’s Uganda survey work. Her previous employment includes working for the ICTY. She has published numerous articles and papers on the ICC. 4 Courting Conflict? Justice, Peace and the ICC in Africa List of Abbreviations AU African Union CPA Comprehensive Peace Agreement DPA Darfur Peace Agreement DRC Democratic Republic of Congo EU European Union FNI Front des Nationalistes et des Intégrationnistes FRPI Force de Résistance Patriotique en Ituri ICC International Criminal Court ICID International Commission of Inquiry into Darfur ICTJ International Center for Transitional Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IDP Internally Displaced Person LRA/M Lord’s Resistance Army/Movement MONUC Mission des Nations Unies en République Démocratique du Congo NGO Non-Governmental Organisation OTP Office of the Prosecutor SAF Sudanese Armed Forces SLA Sudan Liberation Army UN United Nations UNOHCHR United Nations Office of the High Commissioner for Human Rights UNSC United Nations Security Council UPC Union des Patriotes Congolais UPDF Ugandan People’s Defence Force Courting Conflict? Justice, Peace and the ICC in Africa 5 Foreword Justice Albie Sachs There is nothing continentally-specific about crimes committed during conflict. Yet the first investigations of the International Criminal Court (ICC) are concentrated in Africa. The absence of direct Great Power involvement in these conflicts might make Africa more susceptible than other parts of the world to such investigations. However, this is not a reason for seeking impunity for our continent, but rather a call to ensure that the work of the ICC extends wherever it is needed throughout the world. Africa is showing itself to be a strenuous testing-ground for the future work of the ICC. The contributors to this thoughtful and balanced collection have all themselves worked in harsh African terrain. They engage critically with the ICC while remaining mindful of the contending pressures on its work. The multiple perspectives that they offer indicate that this is not a zone of simple truths.