The

and

FICTiONS

in Yale Kamari

Sub-Saharan University

the

International CAMBRIDGE UNIVERSITY Maxine

Challenge Clarke

OF

Africa PRESS

Criminal

of

JUSTICE

Legal

Court

Pluralism CHAPTER 3

MULTIPLE SPACES OF JUSTICE: UGANDA, THE INTERNATIONALCRIMINAL COU RT, AND THE POLITICS OF INEQUALITY

PROLOGUE:REINSTATINGCULTURALCOMPLEXITIES In an article titled “A Pluralist Approach to International Law,” Paul

Berman (2007) examined the culturalist work of Robert Cover and his emphasis on decentering the role of the state by examining “norm- generating communities” rather than nation-states, as well as the work of Myres McDougal, Harold Lasswell,and Michael Reisman in their attempts to pay homage to different forms of actors engaged in what he described as norm-generating processes.This focus on social pro- cessescame to represent the groundworkfor what isknown as the New Haven School of International Law, which foregrounded the impor tance of processesand micropractices central to the production of cul tural norms. Berman’sintervention set the stage for the successorsof the core insights from earlier interventions and turns its focus to the work of Harold Koh and others who insist that a new New Haven School is important to effect legalpractices in an increasinglycomplex world (2007a:304). Such a discussion outlines the need for moving from state-centered models to processesthat open analytic spaces for understanding changing legal consciousnessin a pluralist world. Coined by Harold Koh, among many, as law and globalization,this new New Haven School has taken on the work of Robert Cover. Berman indicates: “Koh again invoked Cover to explain how an epistemic community was formed around a specific interpretation of the Antiballistic Missile Treaty and the ways in which this corn- munity successfullypushed the internationalization of its preferred

I 17

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blaming

Acholi

coup

who

child

economic

months

in

transformed

classified

persisted

example,

against

that

restore

purportedly

rule

the

other

forgotten,

administration

(rather

and

successive

northern set

Sudan.

of

Liberation

were

d’etat

that

its

soldiers, 7

success

assumed

commenced

across

Uganda’s

predominantly

century, up

and

LRA,

People’s

who

military

motivated

goal

however,

the

later

northern

MULTIPLE

peace

Museveni’s

the

chiefdoms

had

development

angry

throughout

than

ushered

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the

staged

were

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northern

Uganda,

neglected

as

Joseph

presidential

into

1

with

with series

leader

been

rigged

99

contemporary

LRA,

power

sixty

from

emerged

Democratic

replacing Army,

might.

a

colonial

at

displaced

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that

by

and

ethnic

conflict

)

SPACES

national

Okello’s

in

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.

rebel

engaged

what

of

headed

ethnic election small

of

Kony

Acholi

National

which

formed

a

July

adult

nondemocrati

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for

Uganda,

has

cease-fires

would

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period

growing

humanitarian

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in

from

paramilitary

they

elections

groups

period,

Museveni’s

OF

2006.6

late

the

and

chiefcloms

by

continued the

—

strife

militia

National

defeat

constitu

Army.

in by

included

General

military

JUSTICE

in

in

enforce Musev

a

violent

of

several

deaths

saw

politi

1980s,

a

Resis

Presi

south

rulers

often

spirit

Holy

1981

1987

rela

five-

sup-

and

the

has

123

in

in

as

as It

April

2000 available

The

124 issued liament and

approval on

has

Id Uganda’s

as

October

and

on

ICC

sufficient

2005 the committed

Amnesty

expressed Ugandan

the

criminal becoming

the

Statute

2003, and

commanders.’ 0

has

of

ing, munities

looting

FICTIONS

These

well

Responding

and

tens

the

been

July

hope

ICC,

amnesties, been

arrest

establish

terms

bill

raping,

,

Amnesty

against

18,

indictments

a

President

as

largely

national

of

in

and

on

implementing

29,

ruling

on 13,

offenses

achieved.

indictments

to

OF

2006,

Act,

basis

of

accused

sovereign government

the

Luis

of

concern

warrants

thousands

January

of

the

by

March

and

June

all

2004,

JUSTICE

2OO5.’ attacking

destroying

pursuing

LRA

political

the

right

the

the

Act

irreconcilable

to

Moreno-Ocampo.’ 2

to

LRA

sixty-eighth

pronouncing

the

including

mutilating

scene

Museveni

25,

allegedly

start

Rome

ICC

international

five

by

however,

leader

for

that The

2000.16

that

Ugandan

17,

to

were

right

rebels,

2004,

members

and

have

and

postpone

jurisdiction

top

planning

and

was

crimes

was

the

1999,

while

excluded

civilian

former

because

Statute

issued

Joseph

the

the

to

economic

commanders

unable

Rome

committed

also

failed abducting

girls

spawned

In

referred

he

including

member

resolve

that

reconciliation

Parliament

and

against

the

displacement

Ugandan

late

of

is

nonetheless

drafting

forced

under

pressure

the

property;

international

of

particularly

LRA

to

into

Statute, Kony

the

to

amnesty

ratified

ICC

over

2005,

This

a

remove

first

investigate

stability,

a

the

the

state

conflict some national

humanity

by

those

national

seal

range

to

leader

and in

investigation

a

the

Amnesty

investigation

to

passed

occurred

jurisdiction

serve

a

the

conflict

submitted

legislative

killing

Uganda

it

on

Ugandan

of

under

end

twenty

determined

process

governmental

of

his

case.’ 4

indicted

of on

LRA

relevant

Joseph

Uganda

proceedings

July

with

the

as

and

1

challenges

effectively

law.

an

top

the

June

.3

were

concubines

civilians;

in

local

Act

at

after

to

ICC.

8,

million. 9

amendment

thousand

international

Uganda’s

that

In

northern

five

to

Kony bill

alternative

Moreno-Ocampo

high

a

by

the

and

for

signed

was

prepared 14,

of

given

passed

the the

time

July

that

law

the

to

the

commanders,

was

In

prosecutor

investigating

2002,1

unsealed

court LRA

under

and immunities

concerning

until

cabinet

summer and

implement

December

the

remained

1

The

ICC when

ICC.

there

the

for

evolving

children;

,

national

violence

by

2OO2)

his

by

to

crimes

tortur

paral

peace

judge

senior 1

Rome

ways,

way.

com-

with

LRA

Par-

thus

top

the On

was

the

the

for

on

of

of

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j

!

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t

(

r r t

s t MULTIPLE SPACES OF JUSTICE commanders from the amnesty.’ However, on July 4, 2006, Museveni announced that Uganda7 would grant LRA leader Kony total amnesty as long as he responded “positively”to the Southern Sudan—mediated peace talks and abandoned “terrorism”;the LRA, about to engage in those talks, rejected this 18offer. Museveni’s affirmation of state pri macy came after the president, originally an ICC ally, criticized both the United Nations’ and the Democratic Republic of Congo’s govern- ment for failing to capture Kony in the Garamba National Park of Congo and to initiate peace talks with the 9LRA.’ In a country with a violence-ridden past, amnesty has come to be seen by some Ugandan citizens as the best way to rebuild the nation. Especiallyin the Acholi region, most heavily hit by the recent warfare, the various traditional reconciliation processesof rrtato oput have been seen as complementing the amnesty pardons offeredby the state. This path to justice, however, ishardly complementary to that of the ICC.

AMNESTYAND THE “TRADITIONAL”ACHOLI PATH FOLLOWEDBYUGANDA An earlier amnesty bill had been introduced by the Ugandan govern- ment in 1998 in an attempt to use pardons for insurgents so as to end what looked like an intractable 20conflict. Prior to that, de facto and de jure amnestiesunder the governmental National Resistance Movement had alreadybeen offeredto variousparties and groups/movementsthat had engaged in rebellion (notably the Uganda People’s Democratic Movement/Army [UPDM/A1 and the Uganda People’s Front/Army [UPF/A]). Regarding the Amnesty Statute of 1987, a landmark in ’2this history, Ugandan lawyerBarneyAfako has noted: [It] was passed by the National Resistance Council (NRC) [and was]pro- fessed to encourage various fighting groups and sponsors of insurgency to cease their activities. In particular, the statute targeted “Ugandans in exile who are afraidto return home due to fear ofpossible prosecution.” Under the

statute, fouroffences — genocide, murder, kidnapping and rape — wereconsid eredtoo heinousto be includedunder the amnesty.Similarly,the subsequent 1998 Statute also sought to exclude certain offendersfrom 2amnesty. Nonetheless, the 1998 Statute reflected the view held by many Ugan dans that subjecting all LRA membersto formalprosecution wouldnot offera valid or effectivepath toward peace.

I25 FICTIONS OF JUSTICE

Buildingon the of tradition the AmnestyStatutes of 1987and 1998, 1 the government adopted a reformedAmnesty Act in January 2000for Ugandans involved in “actsof a war-likenature in variousparts of the 23country.” The 2000Act providesthat be anAmnestyisdeclaredinrespectofanyUgandanwhohasatanytimesince an the 26thdayofJanuary,1986[,]engagedin or isengagingin warorarmed rebellionagainstthe governmentofthe RepublicofUgandaby(a) actual op participationin combat;(b)collaboratingwiththe perpetratorsofthe war sp: orarmedrebellion;(c)committinganyothercrimeinthefurtheranceofthe fe warorarmedrebellion;or(d)assistingoraidingtheconductorprosecution to ofthewarorarmedrebellion. 24 is The amnesty depends on individual application to the authorities for a “Certificate of Amnesty,” along with a statement that the person concerned “renouncesand abandonsinvolvement in the war or armed e 25rebellion.” The Act definesamnestyas “pardon,forgiveness,exemp- ap tion or dischargefrom criminal prosecutionor any other form of pun- ishmentbythe 26State.” The grantingofamnestyforinsurgency-related offencesconfersan irrevocableimmunityfrom prosecution or punish- i ‘ ment within the bordersofUganda (but not outside it). This immunity isunderwritten in the Ugandan Constitution and has been established Vi’ by the Ugandan Amnesty Commission27(UAC). Crucially,the 2000 Act promotes “appropriate reconciliation mechanisms in the affected 28areas.” In fact, forgiveness and reconciliation are said to be at the center of traditional Acholi beliefs.Many Acholi believe in the world ()fthe “living-dead”and receive guidance on moral behavior fromjok, godsor divine spirits,and ancestors.When a wrong iscommitted, these divine spirits are believed to send misfortune and illness to the com- IS munity until appropriate actions are taken by the offender and leaders of the clans. Thus. the living-dead are said to play an active role in the world of the living, and an individual’s actions can have conse- uences for the broader community. Thus, justice in this cosmologyisa meansofrestoring socialrelations. Individualsare encouraged to accept I responsibilityfor their actions voluntarily, and forgiveness,rather than j revenge, is stressed. . ifl the Ugandan Acholi language, amnestyis usually translated as kica.The term resonates with historically embedded practices. Many people in that region see the mediation of the “traditional” chiefs

(rwodi)as a particularly appropriate means to resolve disputes in the . re “traditional ways.”The maw oput,as it is popularly known (the phrase .

126

justice) 4 spirit ceremony

deceased clan, Plt and

feared whether

of between

reached and acknowledges an to

by punitive never the appeased means

the nates mon the

two is is (Finnström

regularly justice, Because is vided

in

that

moderated

negotiated The

Beyond

It

the

keep

governmental

essential

a

northern

killer

angry

negotiation

the

conflicting

m 3 ’

is

way

ceremony

characteristics

and

of

in

to

by

said

clan

in

“drinking

they

ceremony

inato

them

drinking

both

about

the

of

taste

hut

the

the

accidental

body.

earmarked that

those

and

the

through

Since

spirit

the

that

that

the

group,

practice

2004;

are

person

traditional

olut to

region

two

parties

by

offender)

for

those

at

goal

such

formal

his

the

perception

surrounding

The

also

“many

restore

may

is

unsettled

parties

2001,

led

peace.

elders the

as

of

the

ceremonies

is

clans

performed

T.

or

ritual

event

especially

of

bitterness

well conducted surrounding who

as

has

the

by

Acholi

to

include

also

bitter

funding

or

drinking

Allen

attaining

her

justice

victim

an

Acholi

the

make

social

the

of

accept

When and

intentional,

and

bitter

Acholi

a

as

and

in

be was

alternative

wrongdoing

and

key

the

of

root”

district

nongovernmental

clan

question,

the

vengeful 2006):

name

ftillows

the

goat

this

system

or

the

its

ceremony

between

for

harmony killed. 30

are

again.” 32

of

believe

herb,

may

spiritual

opposing

peace

a

‘the

in

one

religion,

victim’s

elders.

inner

the

exchange in

him

person

elders

happen

ritual’s

being

a

(provided

this

9

of

Achoh),

seek

variety

who

bitterness

oput,

a

bitter

cannot.” 33

path

of

It

or between

toward

and

Kitgurn

[7nato

period

family,

Ancestors

type

and

two

within

function,

is to

.

supported

her.

to

one

revenge

clans,

is

effectiveness

killed

therefore

family.

and

by

an

the

to

carry herb,

killed,

restore

of

MULTIPLE

of

offers clans

of

oput]

The

is

national

both

by

appropriate

the

clan

is

of

a

final

organizations

different

in

spirit

in the

an

the

of

them.

in

presented

slaughtered

The

the

separation,

out

which

The

person

which

on

northern

mato

can

Acholi

are

following

the

that

the

compensation

which

clans.

living

and

peace

affected

member

efforts

stage

cen,

the

victim’s

similar

SPACES

point

often

Some

bring

and

past

widespread

ceremony

as

of

oput

institutionalized

forms,

“means

the

who

individual,

The clans,

which

a

to

a

compensation

reconciliation

in

appeasing

as

must

international

local

and

consensus

community.

Uganda

true

revered

ceremony

believe

is

bring

sheep

throughout

a by

the

the

perpetrator

atonement

mediation,

OF

finds

relatives),

ceremony

ceremony

not

but

the

be

that

promise

another

must

healing JUSTICE

form

lives

killing,

culmi

to

peace

belief

made

to

coin-

(pro

their

mato

that

and

has

the the the

the

127

be be

of

of

is

is I FICTIONS OF JUSTICE ritualselsewhere.Ceremonieshave taken place in Pabbo,Gulu district, { and others have been planned for differentparts of the Acholi region. : tior For example, in a project supported by the Belgian government, the rwodiof all the Acholi clans were reinstated and the kiwirwodi(head chief) waselected by the other rwodiin Pajule.A groupmatooputcer emony was held in November 2001, which involved roughly twenty LRA combatants, recently returned to the community.The ceremony was intended to demonstrate the support of the wider Ugandan corn- munity and wasattended by representativesfromNGOs and churches, aswellasAcholi returneesand governmentofficials,the amnestycorn- missioners,and senior armycommanders. Many LRA combatants have been forciblyabducted, displaced,or victimized themselves. As a result, there are limitations as to how the formal justice system can recognize these nuances in legal and moral guilt. The traditional Acholi processof reconciliation has been promoted as an alternative to retributive justice and isseen as a means to end the war and reintegrate communitiestorn by 35conflict. It was clear from the observationsof our research team that the traditional ritual of mato oput has been adapted for conflict-related crimes. The ceremonies have incorporated aspects of the justice process, such as truth telling and symboliccompensation.Somepeoplewe interviewed 4 spoke of high levels of moral empathy among the Acholi people to explain the need for traditional ceremonies such as mato oput. Over . the course of our team’stravels to document these ceremonies,it was plac clear that the ceremonywasthe final act of a long processleadingup The to reconciliation that culminates in the sharingof the symbolic,bitter . . trier drink fromwhich the ritual takes its name. j ex-c The first phase involves the separation and suspensionof all corn- mar munications and relationships between the two clans, which acts as j iat a “cooling off” period. It is also intended to prevent any escalation in ti of the conflict. During this period, necessarysteps are taken to abide ceni by the legalaspectsof committingthe crime,such asfilingreportswith . Wai the police. The elders of each clan are also informedof the crime at justi this time. Initial talks may begin between the clans; however, if they become too heated and unproductive, they are delayed until a later 41 • i. time. Once negotiations begin, the two clans meet to discusscompen sation and how to move forwardto achieve full reconciliation. This .

may . phase finishquickly;however, in somecases it may last for years. 4 2. After all the conditions for peacehave been agreedon, a date isset for the matooputceremony. . 4J- 128 ,: ,ii<

justice

Ward

central These

2. ex—combatants

place

many

ment.

in iation

1 tional

.

Not

the

A

New

The

dominated,

related diction

A

involved COlOflel,

symbolically dabbing The

back colonel,

defected

the and

in

used they the this

instead.

into

whenever

objections

Acholi

(2001)

for rituals

Through

justice”

mechanisms,

only

criticisms

“I

Next,

the

large

other

lead

war-scar[rled

maimed

action.

other

stuck

ask

to

conflict-related

into

York

Acholi

war.

be.

mato

The

tO

who themselves

who

and

the

from

involve for

of

and

regions

number

chiefs.

the

in

are

their

day,

“We

both

husbands

Times

former

As

Acholi

former

rites your

toward

some

egg

cleansed

had

lost

together.

and

seeking

of

OUt

community

the

Erin

beyond

they

an

bare

traditional

have

these symbolizes

his

the

been

politically forgiveness,”

regional

rebels

both

ofArnuru,

of

thus

adolescent

assernby

feature

fighters

of

but

Baines

in

LRA

looked

right

right

the

traditional

reintegration,

following

wronged

them.

it

abducted

and

reconciliation

the

They

traditional

crimes.

inadequate

the

the

lined

also

the

use

leg

by

members

feet

capital,

brushed

on,

wives. crimes innocent

(2007)

political

article

killers

reach

of

By

had

Mr.

to

ofthese

privates

individual

up

and

judicial

Gulu,

said

you.”

in

Acholi

28

a

Our

stepping

by

according

reservations

bomb,

a

[David

raped

young

laws,

with

spiritually.

are

the

freshly

Charles against

of

methods.

committed

welcomed

despite

(Lacey

for

have

life,

Kitgum,

extensive

bringing

then,

and

traditional

traditional restoring

chiefs

rebels

through

a

and

inserting

domain

addressing

men

Oneni

and

over

according

one-legged

cleansing

cracked

MULTIPLE

spiritual

the

to

returned

Otim,

2005)

pillaged.

victims

the himself,

put

and

rank

the

a

branch

up

As

and

exist:

Nevertheless,

themselves

Acana

pole,

the

interviews,

his

the

attractiveness

inato

women

are

the

34,

on

egg,

younger

also

tends

methods

customs.

to

Pader,

domains

right

domestic

to lieutenant

notion

recourse

at

rituals

SPACES

a

One rear.

they

of

are

outside

local

the

with

hilltop

[II,

oput:

argued

the

the

a

who

crutch

pobo

rebel

reunited

They

head

to were after

to

yielded

custom,

age

the

community.

of

generations

of

have

the

had

conducted

OF

overlooking

of

he

tree,

of forgiveness

the

problems

to

by reconcil—

there

lieutenant

colonel

lieutenant

chiefi

welcomed

the

had

in

engage-.

way

of

JUSTICE

16,

recently

“tradi

Kevin

the

male-

and

taken

which

juris three

other,

local

killed

with

early

they

and

are

129

egg

by in

cated

carious

And community’s

Acholi

to liation FICTIONS

hundred noted

for discursive findings telling

given ethnic of these religious in 3

is in

‘Justice,’ Acholi

reporters, 130

.

A During

clear

the

ways

explain

the

intervention

as

The

range cannot

Northern

ing

has

ditional a

allege leaders, ICC

talks. 37

revived

our

a

by efforts

—

rituals.

politician

celebration

internally

theology

role

such,

choice

reconciliation

that

that

people have

OF

to

undermined

Janet Acholi

most

values

understandings

our

role

to

and

process

that

Acholi

the

of

JUST!CE

of including

.

be

back

reconciliation

of

were

own

the

Christian

2007

rituals

Ugandan

Churches

organizations

of

Western

choose

also

Christianity

Anderson

the

between

principles

international

understood

interviewed and

—

and

self-expression

from

Christianity

Anglican off

.

displaced

ICC’s

understanding

that

ideas

unparalleled

. grievances

field

in

shown

former

their

are

local

in have

outside.

the

that

traditions

religious

notably

leaders

regarding

decision

Acholi researchers

order

visits

were

integrated

own

of

of

of

methods,

Roman

midst

international

that

quite

which

in in

the

Church

seemed

these

persons

the

is

efforts

development

to

present

in

is

to

reinventing

its

Interestingly,

leaders

have

actively

to

intersects

traditions

Institute

by

of

an

talk

Ten

give

the

of

Catholic the

are

seamlessly absence.

-Th

of

reconciliation,

get

“local

is

traditional

a

any

important

ethnically

to

into

sympathetic

optimistic

its

Acholi

chance

emerged

has

familiar,

camps

involved

local

of government

Commandments

becoming

throughout

and

build

diplomat,

suffering

other

participating

forgiveness

the

justice”

for

Archbishop

used

peace

with

and

peace

particular

organizations, the

to

War

area,

and

reconciliation

applied

only

in

religious

as

beliefs

despite

channel

international related

end

about

traditional rebels’

.

cultural

negotiator

northern

popularized

have

initiatives,

a

(Ward

to

forgiveness,

methods

towns

and

the

what

2

voice

and

the

local

percent

John

is

the

been

confidence

(Ward

the

forms

region,

Peace

in

their

violence.

war.

to

(Ward

part

organization.

for

further

familiarity

Uganda’s

2001

of

for

peace

ensuring

Baptist

Betty

struggles.

facilitate

ideas

NGOs,

calling

was

based

beliefs

understand-

The

Acholiland

process.

of

indigenous

aspirations

of

Reporting:

of displays

2001

as especially

.

and

209—10)

2001).

reconci-

Bigombe,

the

process

compli-

a

the

a

in

religious

behind

Odama,

When

on

tragedy

for

larger

result

)

truth

news

peace

both

that

pre-

and

and

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of It • • . . .

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long

hav hotk RigI

iiec

cate

to

ther

I

at A cc . .

— ii MULTIPLE SPACES OF JUSTICE

However, they feared that it would not be successfulif derailed by the presence of the ICC. I am raising these alternative reCOflCiliatiOflmethods neither to romanticizetraditionalforms ofustce asreconciliatory in nature nor to ieSt that social-healing rituals reflect the totality of people’s under- standings of justice. Rather, I do so to highlight how the contest over the jurisdiction OfLRA crimes is indeed reflective ofthe politics of fric tiOfl, ifl Tsirig’ssense in understanding competing social practices that exist alongside ICC justice mechanisms. Yet in detailing the ideologi cal — spiritual and secular — differencesthat shape the power struggles among mato oput, Uganda’s Amnesty Act, and the ICC with regard to jurisdiction, it is the politics of incommensurability and the inability of competing sides to recognize the conceptual relevance of the others that necessarilydivide people’smeasure of the efficacyof the different justice approaches. Acholi traditional justice mechanisms represent ritualized public expressions of wrongdoing and corrective measures toward reconcil iation that have adapted symbolic meanings to contemporary social circurnstances. Although these variousjustice-making mechanisms pro- vide alternatives to international legal regimes, they are also likely to perpetuate inequalities as well (Nader 2002), especially as increasing numbers of victims — disenfranchised and impoverished — gain accessto the political sphere. I met people in the region who have been disillu sioned by social rituals that lack judicial power or who were waryof the ability of localpeople to render fairjudgments to women. Some of these were individuals from afflicted villages and communities who argued that some ex-combatants, especially those who do not believe in the power of spiritual redemption, cannot be reconciled using traditional justice mechanisms. Those favoring international and national juridi cal paths to justice argued that the old systemsof traditional justice no longer work in Uganda’scontemporary context of “senselessviolence.” Others who remain skeptical of the efficacyof traditional justice mechanisms — international NOOs such as the ICC-oriented Victims’ Rights Working Group, forexample — have lobbiedforvictims’interests tO he taken into account through the exercise of judicial mechanisms, both international and national. This has meant rebutting those advo cates like Betty Bigombe who call for peace at all costs. These NGOs have argued that oniy judicial paths will achieve sustainable peace. For thein, the absence of law is the absence of justice and, as such, it will

131

Not

As

The

CHALLENGES hostilities[ Uganda cates support national undermine

At demanded while vince attempts

mato parties Southern

“Renounce talks

and assist

INUGANDA FICTIONS

to leaders their the

locations

in

132

Thus,

engage

its

their

the

talks,”

the

Ugandan surprisingly,

oput,

in

justice

out from

the

international

in impunity

.

see

resettlement

with

having

international

possession

as

and

heart

Juba,

the

this

ICC reflects

.

on

literature

seeds

and

OF

abuses

themselves

at

being

where

Sudan,

northern

in

in

to

I

bush.

that

their

victims’

all

July

can

JUSTICE

amnesty.

and

position

Dissolve

are

social others

order

to

reintegrate

Southern

might

of

that

government

stakeholders”

on

long

lead

put

AND

a .

2

they

questions the

the

abandon educational

.

together

various law

the

1 path

.

victims

led indicates,

,

Uganda

International

to

serve

into

rituals

institutions

in

2006,

that

to

rights

overdue.

disagreement

should

LRA as

and

LRA

will to

The

reconcile

CONTESTATIONS

itself,

place

further

toward

facing

Sudan. 4 ’

the

as

civilian

are

ex-combatants

international

even

are

be under

concerning

a

with all

and

net

indicate

and

meet

be

then

and

conflict

quick,

processes

part

and

with

demobilised, working

human

From

upheld. 39

and

forms

the

when

result

reconciliation

traditional

obligations

dismiss

to

the

with

their

offered,

the

This

of

all

hand

life;

the

short-term

political

respect

vocational

that

between

nor

the

the

Ugandan

they

guardianship

four

rights

of

their is

.

resources

inventory[ of

alongside

effort

and

the

deter

over NGOs,

amnestied

start,

Coalition

their

that

terrorism[.]

justice-based

“upon

have

into

to

of

its

primacy violations.

justice

disarmed

communities. 42

TO

challenge provide

.

solution,

future

ensure

to

the

Ugandan

chosen

all

the

the

suffering

“civilian

been

government

that

training,

end

THE

successful

such to

.

arms

the

Ugandan

Ugandan

following

]

rebels

for

crimes.

of

mechanisms,

allow

justice

has released

Assemble

of

the

Cease

but

“cultural,

path

ICC

and

the

ICC

For

as

the

of

international

and

accountability. 40

pro-peace

productive

been

as

war

continue

Amnesty

it

as

having

ex-combatants

government example,

for

Indeed,

documented.”

ICC

toward to

cannot

conclusion

unimportant.

from

well ammunition

began

government

government

all

in

conditions

crimes

block

seen

in

northern

(CICC),

forms

religious

captivity

as

such

to

to

root

denying

agreed

peace,

reports

Inter-

peace

advo-

by

under

local

life”;

with

con-

mete

law

out

all

of

as

of

of . I .

. I

.

disp ovel

beh: goV( and

recc CIC

cow

Uga LRI tors. to

corr of thei

pres

duc did grot paig

rnis in

doc

cisn the the

nen the

nal

met

imp ing

inc

C

T

ti

a

1.. 2

duce did

document dcc

cisms groups paign compliance of court behalf displaced

Ugandan LRA governmental

nent the misc recommendations over

ment nal president, tors, their to

the in and

included: important

ing the to

The

Given

the

a

Ugandan

2O1O,

the

help

parliamentarians.

Court

not

draft

way

the

the

and

national

hility

extent

Weak

violence

predicted

backlash.

NGO

the

has

of

to national

or

of

network

commented

most

Uganda’s

ICC’s

consider

of economic,

that

other

the

academics

comment

Parliament

been

Uganda’s

persons)

appropriate

compliance

concerned

and being

that

Bill

definitions

permitted offers

international

bill.

actively

parliamentarians

ICC

effective

is

action

defenses; law.

and

ability

rule

was

condemned

debates

Supporters

2004.

ofUgandan

raised

bound

for

in

rebels

find

for

draft

the

engage

bound

For

regard

and

of

on treaty

on

social,

for

nationally

by

of should

engaged

in

that

to

action

law

In

results.

concerns

implementing

themselves

failure

bill Ugandan

to

international

crimes;

the

over

in

the

bill

A

intervening

December

exercise

its

and

addition,

experts,

make

organizations,

to

to

in

the

implementation

the

later

of

to

and

various

draft

NGOs

by

(as

draft proceed.

appropriate

cause

in

Uganda’s

the

to

liberation

the

unsatisfactory

be

To Ugandan

as

case

in

many

well

view

provide

Ugandans

legislated

cultural

report,

about

jurisdiction,

brokering

bill,

NGOs’

well

ICC

compliance

the

in

timely

at

jurisdictional

present

various

2004.

working

law;

of

urban

as

in

turn

of

odds

Uganda’s

African

legislation,

highlighting

CICC

Uganda,

as movement,

for

Amnesty

those

Uganda’s

a

political

the

offered

activists

not

jurisdiction

Amnesty

fragile

rights

various

developed

or

strategies

with

universal

amnesty,

even

populations MULTIPLE

principles

international

its

of

local

to

on

always

strategic

of

drafted

produced

NGO

peace.

be

bill

own

Amnesty

treaty

control

its

other of

in

civil

regional

problems.

more

Act,

implications.

detailed

International

amnesty

presented

legal

positions

Act

jurisdiction

its

being

including

the

its

agreeing

analysis,

of

for

SPACES

advocates,

an

the

Some

and

the

compliance,

war

states),

which

vulnerable

IDPs

over

enough

criminal

problems;

would

spirit

advisors

remain

advocacy

a

the

Act,

Rome

peace

human

the

international

presented

several in

twenty-page

Other

the

if

working

or

(

OF

before

with

the

review

the

internally

a

ways

of extended

they

to

a

the

compro

initiation

those

responsi

number

JUSTICE

to

Statute

process

central

media-

Crimi

promi

the

to

ensur

docu

rights

north

issues

to

some

criti

cam-

most

their

with

pro-

that

end

the

the

full

133

on

an

by

of of FICTIONS OF JUSTICE

of prosecutions;failure to provide for the speediest and most efficientpro- Si cedures for reparations to victims; inclusion of provisions that prevent or in could potentially prevent cooperation with the Court; failureto providefor of personssentenced by the Court to servesentences in national prisons;and w failureto establishtraining programmesfornational authorities on effective implementation of the Rome 45Statute, S1( The organizationnot onlyreleaseditsUgandareport to itsvastmem- in hershipbut alsoposted it on its Web site and madea publishedversion tI available to various Ugandan government offices.This posturing of : ar absolute morality by many international human rights NGOs is not re atypical of their commitment to the spread of the rule of law project in and actually highlights the perceived hierarchy of agendas in these w international contexts. Si The Committee on Legal and Parliamentary Affairs, a Ugandan parliamentary commissioncharged with the task of researching and re analyzing the Rome Statute compliancebill, solicited input from var- Ic ious Ugandan NGOs, assembledits facts, and submitted its report to sh the relevant parliamentarycommittee on December 14, 2004.Outlin- : of ing the goalsof the bill and identifyingproblems in it, yet affirming ju the ICC as the answerto “justice”in postwarUganda, the committee iti called on the Ugandan Executiveto “givethe force of law in Uganda di to the Statute of the International Criminal Court” and to “promote to universal rights” for 46all. However, writing with the realities of war cc

in their backyardsand the urgencyof economic and cultural attention . d to the most appropriate paths to “justice,”the report’s authors also in acknowledgeddisagreementsoverwhich strategywasbestforUganda’s transition fromwarto peace. , di My research into these disagreements revealed that there were j CF three primary, although not entirely mutually exclusive, camps rep- wi resented in the debates over the ICC—Ugandacontestations: those 1 • whoquestionedwhether ICC intervention shouldproceedat all; those j ar who believed that the alternative of the Ugandan Amnesty Act — in i, “Ii

which the perpetrators of crime would be offered a pardon, thereby ! bi

‘nding the war immediately — might be a better strategy; and those •. TI who felt that it was not possiblefor Ugandans to he objective and, isi thus, that it was critical for ICC intervention to proceed. Notwith- . cr tanding its acknowledgmentof the debate over how to proceed, the wl committee’s report endorsed the jurisdictional integrity of the Rome ju

1)4

gard of Statute

sider

with

ments

and ing

justice,” Statute. report the

shaped would investigations.

of reached

contexts

delimit legislators in

This

charting j tory

the

crimes “in arrests whether the

while ble

At in ities islation,

ustice.

The

laws

For

the

shaping

the

the

procedure

and

Ugandan

the

conditions

existing

guide

agendas

of

national

processes

would

the

also

the

typical

still

to

also

bill

prior

and

against heart

but

differing

the

and

war

instead

interests

by

and

the

the and

considerations

Rome

the

ICC applying

—

the

solutions.

domestic

meet

wrned

power

to procedures,

recommended

enable

politically

and

particularly

their

to

between

prosecutor

Amnesty

legal

of

those

landscape.

controversies effect

for

and

provide

and

that

prosecutor

through

humanity

In

support

the

the

Statute.” 47

violence,

advocacy

the

of

the

that

short,

incommensurability

framework

its

the

dependent

that

traditional

traditional

were

contestations

justice,” 48

end

that

NGOs,

standards

“harmonisation

supporters,

those

their

Ugandan

Act,

for

relevant

Ugandan and

which

the

for

of

These

of

their

the

under the

—

in

that

alternative

economic

victims

approaches

the

draft

some

surrounding

NGOs

the

the

own

and

international

As

existing

his

prosecutor

disparate

justice

on

he

its

and

mechanisms

differences

of

way

war

a

traditional

ICC

justice

a

vernacular

bill

government

grant

the

decision

President

of

legal

international

should new

in

admissibility

result,

committed

that

traditional

before

in

whom

Uganda

did

challenges

should

mechanisms

displacement,

of

national

accountability

primacy

in

program

northern

amnesty

of

mechanisms

levels

are

the

not

the

for

deem

addressing

it

MULTIPLE

organizations,

whether

speak,

and

the reconciliation

Museveni’s

were

knowledge

in

of

Ugandan

proposed

provide

pursue

ICC

the

are

to

of

to

the

commencement

mechanisms, justice

donor

customs,

analytical

can

his

outlined

ahead

should

to

apply

questions

also

Uganda,

ICC

respect

working

in

and

to

interests

the

findings

SPACES

be

to

investigations

part,

and

seriously

Ugandan for

—

victims

imperatives

CICC

procedures

include

national

must

several

its

established

prosecute.

and

highlight

bid

forms

perpetrators

be

a

and

for

in

inequality

to

must

national

legally

mechanism,

within

or

conclusions

for

concerning

introduced

OF

must

contradic

the

not

inadmissi

of

culturally

Ugandan

based

“paths

can

whether,

the

of

creating

peace. 49

paths

amend-

JUSTICE

justice.

system

inform

of

Rome

disre-

war

bind-

some

have

local

con-

real-

The

that

that

and

and

leg-

the

on

135

to

in

to of

— V FICTiONS OF JUSTICE

In “the Interests of Justice”: The Rights of Victims Ar versus the Rights of the State th As discussed in Chapter 2, one of the greatest innovations of the Rome Hc Statute is the central role accorded to victims. As noted in one of the ren reports from the Office of the Prosecutor (OTP): sta of Forthefirsttimeinthehistoryofinternationalcriminaljustice,victimshave I mt the possibilityunderthe Statuteto presenttheirviewsandconcernsto the an Court.. . . TheexperienceoftheCourttodateprovesthatunderstandingthe interestsofvictimsin relationto the decisionto initiatean investigationis mu a verycomplexmatter.Whilethe wordingofArticle53(1)(c)impliesthat nal the interestsof victimswillgenerallyweighin favourof prosecution,. . .

‘ sta The Officewillgivedue considerationto the differentviewsof victims, their. communities. . and the broadersocieties. in. which, it. maybe required. tn to 0act. . . . Understandingthe interestsofvictimsmayrequireotherforms of dialoguebesidesdirectdiscussionswith victimsthemselves.It maybe tii( importanttoseektheviewsofrespectedintermediariesandrepresentatives, crii or thosewhomaybe ableto providea comprehensiveoverviewofa corn- for

plexsituation.. . . TheOTP’sactivitiesinrelationto Ugandaexemplifythis inc

approach.The OTP has conductedmorethan 25 missionsto Ugandafor : ev the purposeof listeningto the concernsof victimsand representativesof noi

localcommunities.’ , det : thc Since the release of the first set of ICC-related arrest warrants, there to have been several discussions about the meaning and possible interpre- gu tation of Article 53 of the Rome Statute in which considerations of fur the clause “in the interests of justice”have become a central factor in th the admissibilityof a criminal case.Article 53, titled “Initiation of an Icr Investigation,”describesthe substantiverulesfor an investigationand for

prosecutionofcrimesunder the subjectmatter jurisdictionof the ICC. . In detailing the initiation of a prosecution, it indicates that “the Pros- Ot; ecutor shall, having evaluated the information made availableto him re or her, initiate an investigation unless he or she determines that there coi is no reasonable basis to proceed under this Statute.” It then outlines me the considerations for deciding whether to initiate an investigation. an If 52 I the prosecutor determines that there isno basison which to proceed, then he or she is expected to inform the Pre-Trial Chamber of that ha decision, The prosecutor is then expected to inform the inflicted state th of the findingsfrom the investigation and the reasons for such a conclu- ex sion. In determining whether there is sufficient basis for a prosecution, a p

136

NGOs

ofjustice statute.

remains However,

further determinations criteria state that Article

Otti, for ever, for national and

guaranteeing not the mitment

exceptional has concerns

“dangers” meetings reported the to the into

and the

a lence. independence,

the

prosecution

What

In

victim’s

justice.

cases

OTP’s

court

conflict continued

gravity

purposes.

proceed

court’s

proceeding

political

their

sovereignty?

the

Raska

the

These

and

action

being

This

53(

one

particular

organizations

to

that

extends

provided Uganda

most

were

of

as

notions

deciding

of

selection

justice.

“the

consultants

1

Lukwiya,

political

of

circumstances

of

have

well

with )(c)

representatives

is

respect

tests and

alternative

it

may used

that

the critical

the

primarily

to

described

impartiality,

had

require

with

interests

well

as

moral

Injune refers

case

express

judicial

endured.

highlight

increased

not

most

of

crime

notion

The

by

balances

what

larger

criteria

conducted

for

motivations,

the

Okot

justice

beyond

the were

—

more

serve

two

legal arenas,

to

internationaljustice legal underdeveloped

that

because

prosecution

ofjustice,”

2006,

justice

and

is

as

sensitivity

OTP

political of

action

Octhiambo

will

inadmissibility

the

Nevertheless,

and

draft

for

awareness generally

the

objectivity,

the

the

being

of

“victim”

and

tests

of

analytic

the

the

the

judicial

more

justifications

thereby

they

local

in

The

considerations

what

interests

interests

mechanisms,

the

exercise

documents

in

drew

interests

include

pursuing

circulated

OTP,

shaped

determinations

and

“the

Prosecutor

conclude

to

concept

than

is

and

Ugandan seems

—

is

tests

ofthe

not

investigations

investigators’

including

seem

how

the

not

and

and

responding

of

interests

of

Dominic

ofcriminal

it

MULTIPLE

twenty

ending

if

by

“in

of

guided

cases.

justice.” 5

deep

justice to

has

and,

differences

does

contested

of

in

that

there

nondiscrimination;

to

to

of

the

four

that

Accordingly,

the

inform

v

decisions

for

the

communities. 54

conceive

. acting

insisted

various

in

Joseph

the

scars

many

further

missions

The

impunity

Qngwen

victims

of

interests

weighing

an

that

by

is

guiding

in

so

interests

SPACES

to

justice:

OTP

justice.” 53

attention

a

and

doing,

relation

the

investigation

the

questions

concepts

determinations

that

in

considerations

among

determination

are

Kony

that

to international

expanded

of

the

OTP’s

clarified

to — purposes

—

to

of

proceed

OF

connected

principles:

the

while

victims

and

it

the

justifying

the

of the

,

end

hear

interests

“only

justice.”

extends

JUSTICE

to

victims Vincent

justice

role

to

These

These

in

about

inter-

terms

how-

corn-

OTP

OTP

both

vio

also

the the

the the

I

on

or

or

in

37 of

of of

THE

CHOSEN LAW

sistent

ratified Many

for which FICTIONS

mission

has considering which of “the rights. 57

Watch’s court, international

trators) updated its

Regarding to among is

the

(para.

138

also

Human

work

the

criminal

victims

agreed

aforementioned

interests

OBLIGATION

creation crimes,

other nal each

tional alleged Rome

Internaiona1

ing

VERSUS

manifest

subject

developments

6).

serious members

statute.

trend

the

the

with

who

on

the

tribunals

set

OF

As International

.

of

This

WAY

Rights

serious

with

Stitute

commitment

important

jurisdiction

U.N.

amnesties,

in

Human

JUSTICE

Rome

crimes

national

perpetrators

of

these

argued

of

various

concern

in

are

to

efforts

of

relation

Accordingly,

principles

the

in

understanding THEIR

the

recognize

establishing

Convention Article

to

justice”

violations

law responsible

in

Watch,

of

the

against

International

Statute

prosecute

addition

by

the

OTP

Rights,

OTP

had

OF

rejects

persons

approaches.” 9

in

language

committed

factors

to

Justice

the

RIGHT

to

Internatiowil

of

over

Richard

the

1

STATES

humanity

justice been

should

7

for position:

.

among

serious

the

that

of draft

appears

of

OTP,

impunity

against

to

genocide,

which

past

those

humanitarian

the

the

the

to

the

for

the

numerous

“degree

Program,

Criminal

made

of

of

“it

for

TO

documents

ensure

crimes

be

pursuit

fifteen

Dicker, a

duty

protection

crimes

the within

the

Rome

Prosecutor

the

Torture,

and

TO

serious

is

responsible range

.

has

Criminal

RESOLVE

to

for

guided

the

In to

war

Preamble

responsibility

torture.

interpretation UPHOLD

be

of

serious

of

Court

are

respect

the

other other

incorporated

Statute,

asked,

years

duty

crimes

of

crimes.bO

their

under

of

law

legitimacy

the

states

supported

director

prosecuted.

maximum

by

those

other

makes

Court,

and

human

Geneva

and

International

illustrates

may

crimes,

words,

of

jurisdiction. 56

for

or

the

DISPUTES

the

crimes

“How

to

the

every to

other

INTERNATIONAL

is

more

promotion

international

international

(such

the

require

take

objects

warranted. 8

rule

it

prosecute

rights

of

of

such

Conventions,

jurisdiction

the

by

and

of

clear

Uganda

against

it international

.

Rome

long

impact.

the

State

states

Human

point

into

of

in

the

the

as

OTP

as

parties

treaties.

treaties,

the

strong

law

and

IN

adopting

LRA

genocide,

that

can

account

concept

humanity

to

UN

Statute, This

.

has

of

that

extent

to

crimes

THEIR

would

will

exercise

to

purpose

a

crimes”

NGOs,

human

respect

interna-

One

Rights

. and

a

perpe-

of

includ-

ratified

Com-

peace ensure

.

crimi- trend

have con-

.

seek The

.

the

war

the

an

be

to

in

in

of

of of or

.

$

I

I

I

! ‘ : I

‘

has

ou In

arg

shc ev ro

to

her

am

str Hu

mu

a

tao

W th

arc

tor

St thi

tO

ar

R

ph th(

de tim

[t

c i

dealing

Rights

the ple Western

[ and Uganda’s States

the are a strategies

to tory h()Uld

this mining

that tions her amnesty even,

Human argued ous

to

In prosecutions

hased

through

close

compiy

undercutting

questioning

unable

Refugee representatives

of of

bias,

“Rome

to

has

one

embodied

with

process Uganda

have

those to

truth-teHing

[

Ugandan

Tihe

and

on

international

self-determination

relationship that

Focus

not

address

with

speak

the

Rights

highlighting as

been

interventions.

whichj

of

sovereign

and

this

Western

international

with

affected

Ugandan

insisted

to

OflC

amnesties

preclude

Statute’s

local

the

Law could

also

criminal

about by

referenced

efforts address

approaches

through

in

kind

Watch

amnesty

of

alleged

the

durable

the

ways

should

process

Project,

Uganda

the

work

NGO

wish

many

the

that

government

from

Europe.M

insisted

to

strategies

ICC,

right

of

organizations

Amnesty

these

principles

the

address their

that as

charges.”

human

to

is

alongside

conduct

deal

the

offences,

that

the

and

NGOs.

They

solutions

peace.

“paths

often

authority. Amnesty

participate.(1 2

the

and way

and

Human

also

are

of

Africa

peace

own

implicit

ICC’s

that

wou’d

other

last?” 1

the

rights

peoples.” 6

Arguing

UN

James

promoted

that

Law

typical

should

interpreted

see

obligation

has

meaningful

A

to

traditional

tensions As

Various

of

problems

“this

Zachary

for

range

justice.” talks

allow

has

Rights

this 2005

African International’s traditional

Charter

abuses

of

such

a

they complementanity

They

Otto,

To

assumption

estaNish

right

peace

2000,

of

was

that

been

intervention

people

between

from

indictment

of

by

the

conclude: as

people

supplement

that

prosecutions

Watch

They

feel

to

reconciliation

not

by

director

and

organizations

Lomo,

local

The

to

Amnesty

international

MULTIPLE

an

and

as

leadership

pathologized

micropolitics

resolve

a

Ugandan occurred

taking

justice

assume

in

that

unusual.” 63

truth

“uphold[ingj

instrument

are

peace

reconciliation

with

intervention

have

Ugandan

northern

that

recommends

New

then

therefore

of

these commission

of

conflict

place

and

as

whom

mechanisms,

SPACES

in

International during

Uganda’s

investigation

and

responsibility

also

African

from

five

NGOs

measures

York

its

symptomatic

the

justice

are

which

law Uganda

differences

on

in

Many NGOs,

admissibility

of

LRA

nor

pointed

the

I

the

the

often

director

office

OF

recognizes

world

developed

in

peacefully

collabora

by

as

or

are courts.

only

societies

that

obstruct

war.

involved

Human in

need

JUSTICE

United

a

pninci

leaders

another

argued

under- a

clearly

made

num

which

how-

forum

have

van

lead

This

his-

and

and

out

139 for

.

of

of of in . FICTIONS OF JUSTICE

considerabledemocraticconsultation,wasenacted by the Ugandan Parlia- wel ment, and long pre-datesthe ICC’s intervention in 2004. Drawingfrom gu national proceduresand local traditions, the people of Uganda are seek- net

ing to complementthe Amnestybydevelopingaccountabilitymechanisms . compatiblewith the twingoalsofpeaceandjustice.Furtherproceduresthat cor integrate fact-finding,victim participation, and reconciliation are being w activelypursued. age After twenty yearsof conflict,northern Uganda has an opportunityto bet worktowardsa non-violentresolution,an outcomewhich wouldallowdis . , , placedcommunitiesto hnallygohome and workableaccountability. . options. prc to be brought into focus.In the interestsof victimsand in the interestsof justice, therefore,we urge the ICC and others concerned about northern sta Ugandaand the neighbouringregionsto givepeacea chance. t10

; dec Note that on both sides of the debate are questions about what is tai] actuallyin the interestsofvictims (or those sodeemed).The answerto sta these questions is central to the reconfigurationof sovereigntytoday. gic In the absence of monarchs and absolutist states, and given that we in have movedbeyondthe periodof noninterventionist state sovereignty is of the early twentieth century, it is clear that the new (transnational) ext sovereigntymust consider“victims”as central. nai Victims, the State of Exception, and the New “New Sovereignty” gel

In The New Sovereignty(1995), Abram Chayes and Antonia Handler feI Chayesarguethat the exerciseofsovereigntybystates in the late twen- de is tieth centurywascharacterizedbymembershipin goodstandingto var- . ious international networks. By dismissing approaches to sovereignty ins that focus on a model of coercive na enforcement, they proposeda new j “managerialmodel” (1995:3) of treaty compliance in which the new bei sovereigntycould be describedas an “elaboration and application of j be( treaty norms” (Ibid., 123). Accordingly,membership in the interna- WF tional system is made possiblethrough compliance with treaty obli- to gations. Cast this way, the continuing dialoguebetween international th( officialsand nongovernmental organizationsgenerates much pressure tiv to resolveproblemsof noncompliance. Chayes and Chayes argue that 12 I the new sovereigntyno longer“consistsin the freedomof states to act I in independently in their perceived self-interest,but in membership in , in reasonably good standing in the regimes that make up the substance of ‘ ha

1 international life” (p. 27). Contending that to be competitive and rele- : is vant in the worldeconomy,nation-statesmustsubmitto impositionsof pa: the international systemand, in so doing,are accepted into a complex qu

140

quasi-judicial particular have between gio status between guage web

whom death fellow gency name decisions state postcolonial consideration networks

tive because national-level extraordinary tional provisions aged

them. to taming

to

is in in in

institutions is is

I

20

because

seen

Although

State

also

its

the

which

recognize

implement

Agamben

states

power

of

development,

solely

and

privileged

of

might

of

and

squad

universalist and

This

citizens

the

reflected

regulatory

as

of

life

sovereignty

it

an

the

the

of

related

constituent

that

presumptions international

being

exception supranational

the

those

relates

and

of law

by

expectation

emergency. obligation

to

should

be

membership

resources

that

African

international

1CC

mechanisms.

state

for

international

(1998,

its

initially

conditions

processes.

the

manage

to

one

does

legal

particular

in

outside

in

to

how

laws

definitions

the

language

to

agreements,

and

state

that

in

its

the

be

positions

the

describes

in

or

2005)

norms)

the

states

which

power

status

writing,

and

by

signed

to

connected

more

established.

national-level

international

sovereign

operates

authority

power

about

does

of

In

organizations alone.

of

in

This

reduce

eliminating

power

for

norms

why

international

and

the

During

the

of

the

has

within

courts

citizens

of

complex

(the

of

inclusion the not

of characterize

the

the

the

and

is

bare

of

context

international

the

Complex

the

national

referred compliance

judicial

privilege

beyond

to

life

Rome directly

of

actual

authority

apply.

to

decision

ICC are

individuals

supremacy

the

in

the

it.

national

authors

The

decide

use

life,

juridical

international

to

justice

terms

relation

controversial.

national

strategies

compete

passing

The

are

UN

in

Statute

of

paramilitary

death.

order

to

power

supremacy states

using the

For

inequalities

relevant and

are

the

ethnic

MULTIPLE

relations

the

of

as

when

Assembly

struggles

that

to

suggest

are

mechanisms

law.

order

(including

the

of

justice

how

the

theorized

working

ofamendrnents,

undecided

ICC

to and

police,

suspend

The act,

new

of

laws

to

to

international

no

for

articulate

states.

ICC

violence,

the

“state

and set

create

membership.

the is

to

in

it

already

longer

of

points

justice

state

SPACES

recasting

regime,

coups

that

certainly

Multiple

over

the

it

ICC

is

between

the

of

the

dominance

army

with

terms

relies

through

generates

the

also

by

of

constitutional

Although

States

parameters

government)

conflict

relationships

of

and

competition

others.

participated

realm

to

the

being

exception,”

to

what

presuppose

in

that

law

OF

militia,

respect

important

exception

especially

for

condemn

on

the

law

a

the

interna

growing

suspend

Uganda

cloaked

JUSTICE

refugee

critical

Parties

in

global

main-

erner-

states

Gior

of

man-

This

with

rela

over

over

that

lan-

the

the

141

an

to or of FICTIONS OF JUSTICE

meetingsand the UN-basedGeneral Assemblyin which the provisions : sus of the Rome Statute were 66established, politically“weak”states were Th rarelyin positionsto overpower“stronger”states.As such, the relations the between different types of nation-state and international institutions ent derivefromcontestsoverthe powerofauthority — the powerto decideto aiw claimuniversaljurisdictionand formallianceswith international insti- ing tutions or to implement amnestylawsand deferto state sovereignty. in t The path to international justicehas thus come to cloak an unequal sufi distribution of power in a languageof jurisdiction and membership. This newformofgovernmentality,in which states in the GlobalNorth can control the terms of judicial and social compliance for states in the aw South, highlights what Suárez-Orozco(2005:6) has referred to as the the hyper-presenceand hyper-absenceof the state — a concept that I articu- Ag late here with referenceto the ultraexpansionof the statecraft,but not son necessarilythe state, as a result of the change in governance mecha- sac nisms based in networks of international, national, and local spheres pol of individualand institutional power.Crucially,these networksdo not of themselvesconstitute sovereignty.Rather, they work with states and ! cot operate through such institutions as international courts and human cxc rights agencies,through which the coordination and determination of so new disciplinaryprinciples are mobilizedin strategic relation to each do

other. . L im Variousextranational tribunals have become forumsfor the devel- (A opment of new paths to justice in African postcolonialstate contexts. The management of contemporary forms of violence can no longer sio be understood as operating through single forms of sovereign power ser that reflect one path or one hegemonic notion of justice. Rather, the ! in modernityof international criminal law — alongsidethe workofNGOs res that propelhuman rightsimperatives— representsa rangeofforcesthat in interact with each other and producehybridarticulationsofjustice.As wF ,67 discussedin Chapter 1 this supranationalsphereof governmentality fot is being propelled through the legal advocacyof elite cosmopolitans co operating within discrepantorderscomplicatedby persistingpostcolo- th nial histories of deeply entrenched social divisions. The paradox of cc: sovereignty,therefore, is its ability to make real the notion of the uni- I ad versalin a waythat in fact perpetuatesthe exclusionof certain groups th fromequal considerationand participation. ip Such an approach locates sovereigntynot in the realm of everyday vi people, wherein sovereignty is diverse and diffuse,but in the realm in

of those who participate in the decision-makingprocesswithin which I pc

142 I

MULTIPLE SPACES OF JUSTICE suspectrightscan be suspendedand that processaccorded68legitimacy. These formsof power lay in the realm of international court regimes, the powersof which represent extensions of some of the most influ ential nation-states. Moreover,postcolonialstate sovereigntydoesnot alwaystrump international legalregimes,which are increasinglyform- ing the model for regulatingthe contemporarygovernmental axis.Yet in the process,what we see is the abilityof the lawto abandon human suffering— to enable the continuation of bare life. This bare-lifestatus,the realityofthose in the modernconcentration camp — the refugeecamp,the shantytown, the IDPcamp — and ofthose awaitingcapital punishment, constitutes the life that existsoutside of the law but that international law needs (and claims) to protect. As

Agamben (1998)remindsus,in ancient Roman law,the homosacerwas someone who could be killed with impunity but whose death had no sacrificialvalue. This figure,we know, offersthe key to understanding political power and explains the “paradoxof [Carli Schmitt’sconcept of sovereignty”as actually being the essenceof sovereignty. In that construct the sovereignwas the person “who decides on the state of 69exception,” thereby maintaining a relation to the exception and, in so doing, constituting itselfas a rule. Agamben’snotion of sovereignty does not move from the domain of the imperial territorial state, and imperial Europe is a trope for understanding sovereigntyeverywhere (Agamben 2005). The international criminallawregimereproducesa relation ofexclu sion in which these various institutions for the production of justice serveasconduitsforthe normativecategoriesofvictim and perpetrator in sub-Saharan70Africa. Accordingto this position, “victims”are rep- resented through the jurisdictionalclaimsof the ICC as a categoryof individualsto be savedbyglobalruleoflawinstitutions.This process,in which international organizationstakeon concernson behalfofvictims forthe purposesofhumanitarianism,reflectsthe limitsof international cooperation, highlighting the relegation of victims’agencyoutside of the political sphere. For in the local realm, victims are included and central to reconciliation and, at times, are part of the state criminal adjudicatoryprocess.In the international realm,however, it isthrough their veryexclusionaspolitical agents,or at least agentswhosepartic ipation is circumscribedin particular ways,that they are included in victims’protection and compensationprograms.They are incorporated into the international politicalprocessonly by virtue of their symbolic poweras dispossessedagentsin need of aid.

143 FICTIONS OF JUSTICE

Although many scholars of sovereigntystudies have heralded this are age of globalizationas an age of international cooperation and respect I the among different actors — the state, NGOs, and victims — the space for j sup the inclusion of victims and postcolonial sovereigntyhas not in fact I tiv produced the possibilityfor a new immanent form of genuine justice of making.The path to international justicehasnot surpassedwhat Partha ne’ Chatterjee callsa “publicrhetoric ofmoral virtue”(2005 491) in which law a specificset of techniques for the production of democratic consent the j are deployedto ensurethe expansionof the international forceof law. rec As explored in Chapter 2,71victims are not expected to interpret or mv exerciselegalpowerin their ownright, other than by testifyingin legal nec

proceedingswhen called on to do so. To some extent, the same can 1 opc also be said of “perpetrators”:they are not expected to exercise the nat sovereignright to negotiate terms of the peace accordsor the type of Ug justice regime they prefer. The new sovereigntyrepresents the power i-nii of an international body to declare the exception through the moral 1ru imperative of justice and the authority to take on (or take over) the tre: tasks of “educating,discipliningand training” (Chatterjee 2005:496), dis: as well as to determine the terms of punishment.

Even asthis new modelof international justice ison the rise,a range ‘ ate of new national punishment approaches in the Global North have for

combined both retributivejustice models (in which the punishment . eff

mmposedis seen as repayment or revenge for the offensecommitted) . to and rehabilitationmodels(in which societyassiststhe accusedin chang- vei inghis or her behavior), generatingnewformsofrestorativejustice that wo emphasizethe harm done to personsand relationshipsrather than the rul )•72 violation of the law (Orentlicher 2007 These approaches,like that ag of the traditional justice mechanisms in Uganda, focus on both the rec survivorsof crime and the offenders(Pain and Madit 1997; Rachels ag 1997). They suggestthe possibilityof enabling the offender to rec- cr ognize the injustice he or she has committed and to participate in 1 Hc negotiating restoration through community involvement. Many such ne notions of restorative justice as practiced in the “West”have histori- of callybeen shapedby Christian valuesof personalsalvation and peace- tw making, forgivenessand healing. Secularizedin the 1980sand 1990s, wk these principled approacheshave been incorporated in judiciaries in of the United States, Canada, and parts of Europe,and they echo a range of nonsecular legal contexts, such as that of Uganda, in which tradi- ca tional justice is being used to compensatefor a failed judicial system. cc j My point here is not that only such restorative justice mechanisms

144 MULTIPLE SPACES OF JUSTICE are viable in contexts in which civi’warand ethnic hatred have led to the decimation of communities hut that the choice of rebuildingand supportingUganda’sjudiciaryalongsideits various traditional restora tive justicemechanismsisone that shouldbe consideredin the interests of justice as well as peace.The reality,however, is that to speakof the new sovereignty today is to speak of the movement of the force of law, its techniques of coercion and disciplinarymechanisms, hut not the foundations that may make a new world order possible. Such a reconfigurationof sovereigntyas global and national equality would involve the erasureof variousstructural violencescloselyalignedwith neoliheral capitalism.This type of liberatoryapproach to sovereignty opens up for scrutiny new sites of power in which the rule of inter- national law,by suspendingthe possibilityof national jurisdiction (in Uganda this means the application of amnesties), is allowedto deter- mine the relevancyof alternative justice mechanisms.In doing so, the nile ofinternational lawtoo oftendenieslocalresponsesto injusticeand treats victimsasdocile agents in need ofsalvation. Its moral universals disregarddifferenceand enable the perpetuation of exclusion. As a far from neutral project, international justice does not oper ate in an explicitly heavy-handed waythrough mechanismsblatantly forcing people to submit to its teachings. Rather, the contemporary effectivenessof international criminal law lies in its alluring promise t( transcend injustice while obliquely,but effectively,subverting the very inclusions it in fact seeks to protect. These justice hegemonies work alongside a growing regime for the universal establishment of rule of lawand represent new pressurestoward the supranational man- igement not only of crime but alsoof new reporting mechanismsthat requireinternational organizationsto document, account for, and man- age the human body in particular ways,in accordance with carefully crafted treaty lawsand regulations(see,e.g.,the missionsof the World Health Organization or the International Labour Organization). The new sovereigntyprovidesrationalities intended to celebrate the utility of contemporarydemocracyas a viableformof government in the late twentieth and earlytwenty-firstcenturies,and their trajectoriespoint to what international lawneedsto reshapethe biopoliticalsubjectoutside of the parametersof state institutions. Through the moral and political ftrce of humanitarianism, invo cations of justice as universal contribute to establishing a new moral economy accordingto particular human rights principles,alwaysclar ifyingwhat is legal and illegal, acceptable and unacceptable, and, as

145

such,

sustain “normal”

conditions

FICTIONS

ment

participate national allied the

locutors

of paths

As various

which

justice focus

This decisions national conceptions control.

norm-generating “victims,” the

spheres states

bodies of member to

of choreographing

ties are

uneven

international

146

Today,

The

Although conflict

hold

itself;

nation-states

such,

reinforcing

power

global,

of

free

is

participating

the

with

to

and

law

itself

the

to

education,

complexities

segments

of the

because

social

are

I

OF

states international

rather,

and

justice

it

are

spheres

of

power

end

institutions

adjudicate

power.

is

to

thus

among

African

particular

also

twenty-first

in

is

in

JUSTICE

potential

constituted

but

violence,

not

of

national

choose

made,

national

productive

legal

which

relationships,

here

shaping

most

sovereignty

a

mark

making

of

simply

by

dual

processes

it

to of

the

represent

This

capacities,

of

social

the

and

represents

locating

international

in

with

the people

bodies

naturalized,

powerful

amnesties

life

central

of

presence

there

global

international

of

membership

and

the

such

indirect

NGOs,

maintaining

justice

the

move

imposed

the

century

jurisdictional

by

Uganda’s

the

negating

actors

relations

a

of

possibility

international

within

proposition

valuing

that

the

whose

are

exists

law

the

as

exclusions

hegemonies.

these

latter

the

from

issues,

the

the

on

and

and

victims,

the

and

interaction

and

versus

engaged

would

new

but

under

but

and

ICC

the

law

each

shifting

a

which

reality

the

relationship

dominance

paths

the —

absence

the

ICC

in

direct

of

institutions

rather

geography

grievances

notions

does

and

of

controlled.

governmentalities

the

world

certain

does

and

to

international

clarify

reconfiguration

rule

absolute

which

for

subjects

other, food

that

and

and

contests

in

as

separate

new

building

the

control

is

not

of

mediated

belonging

a

not

of

of

ofgovernance

the

scene. uneven

even

and

that undermine

general

of

its

various

the

states,

kinds

ones

law.

thereby

constitute

norms

they

is

of

represent

reflects

the

jurisdictional

production

to

represents

of

complex

economic

over

locus

upheld

of

rebel

postcolonial

rights

political

of

However,

In

the

the

I

will

“good

of

the

adjudication.

by

competitions

institutions,

rethinking

key

explore

of

to

a

the

suspending family

lawmaking

of

power

court’s

ICC

of

groups

new

home

terms

central

justice

the

the

that

submit.

paths

justice

their

by

web

midst

international within

the

life,”

a

beings

resources

not

exercise

prestige

bring

sovereign- domain

those

the

life.

is

relations.

authority

here,

by

“real” environ-

of

vying

political

to

totality.

African

making

already

of

only

to

of

within

in

which

These

global

nexus

inter- inter-

inter-

Such

seem

their

from

such with

core

new

into

UN

and

are

by

to

to

in

of

of

of : . : . . . ‘ . .

. !

,

1

not

wors als

over

bein

vivo

of

pow

frori

the

sibh

tech

not

as

uni

lar

the

hun poll

bar

thai

tani

tho

flee

whi tice

whi

mc]

law

a tic

just

pro

ity.

unj

to

to

As

B’

s

d

ii

c

I I MULTIPLE SPACES OF JUSTICE

HOt limited to contests of the rituals of reconciliation versus the ritu ls of international adjudication over how to treat perpetrators of the worstcrimesagainsthumanity. Rather, the central strugglesare contests over the place of victims and how best to treat them as sociopolitical beings.

Byclaiming to workon behalf of child soldier victims — bare-lifestir- vivorswhosecontinued existence in that condition isensured by virtue ()f their exclusion as political agents — international law claims the powerofthe decisionoverwhat constitutes the lifethat isto be excluded from the political sphere (the polis). The exerciseofthis power indexes the true site ofsovereignty.It isthe new exerciseof the force of law — its techniques of coercion and disciplinarymechanisms — that makes pos siblethe new worldorder ofjustice and politics.This new sovereigntyis flOt historically constituted froma political authority but presents itself js democratic through the language of international membership and universalism.However, the reality isthat it operates through a particu lar order in which the forceof lawgains its power through a spectacular theater of humanitarianism. / As such, this new sovereignty, super- political and brought into being through the politics of virtue and human rights missionization, both creates and preservesa condition — bare life — that it is dedicated to eradicate. It thus represents suffering that it claims to root out. Of course,human rights—ruleof law work continues to be an impor rant ideal in the achievement of global rights and protections against those who take the lives of others in their own hands. However, we need to think more preciselyabout the meaning and enactment of jus tice and politics in local contexts — how it should work,whom it should include, and whom it excludes. We must rethink the conditions within \vhich we envisage justice in the first place and expand the basis on which we locate political beings. For it is limiting to assumethat “the law”— rule of law,criminal law,national law — is the only way that jus tice can he achieved, especially because justice itself is not a thing hut a set of relations through which people establish norms of acceptahil

ity. Following Jacques Derrida (1992:241), the possibilityof achieving justice implies the exercise of a performative force and, therefore, the production of an “interpretative violence that in itselfisneither just nor unjust.” It is a force that placesvalue on or makes legitimate the power to kill, the power to punish, the power to classifycrime, and the power to determine who is subject to the law and under what conditions. As such, it is important to examine the mutual-engagement aspects of

147

148

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didates

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authority,” See,

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8. 9. NOTES TO PAGES 123—124

rather, once potentia’ candidates succeeded in achieving nominations, they could compete in the elections. This and other aspects of govern mental policies inspired violent resistance stru.gIes against the Museveni government. After nineteen years, the nonparty system was replaced by a multiparty onethrough a constitutional referenduin held onjuly 28, 2005. “Uganda Backs Multi-Party Return,” BBC News,August 1, 2005, online

at http://news.hhc.co.uk/2/hi/africa/47 26419.stm (accessed February 13, 2008).

6. The intermittent talks, held in Juha — the capital of what since 2005 has been the autonomous region of Southern Sudan — are still ()noin as of this writing (September 2008). 7. For in-depth statistics and further context reardin the abduction of Ugandan youths, as well as their return to and “reintegration” into 5OCi ety, see Jeannie Annan, Christopher Blattrnan, and Roger Horton, “The State of Youth and Youth Protection in Northern Uganda: Findings from the Survey of War Affected Youth — A Report for UNICEF Uganda” (September 2006), online at http://www.swaytianda.org/SWAY.Phasel. FinalReport.pdf (accessed April 13, 2008). The report, which focuses on abductees and the needs of those wh() manage to return, notes that “the UN has estimated that 20,000 to 25,000 children have been abducted” (p. 55) hut also that “Youth not only face a significant risk of abduc tion into the LRA, hut also forcible recruitment into the Ugandan army

as well. . . . Once with the LRA, not all abductees become fighters, and relatively few are forced to kill” (p. vi). 8. The suggestion that if the LRA was in power, religion rather than law wouldrepresent the new order is part of a larger rhetoric strategy being used by various spokespeople. However, there is widespread agreement throughout the country that such articulations of Christianity point to the political and liOt spiritual motives of LRA leaders. 9. Agence France-Presse, “War in Northern Uganda World’s Worst For-

gotten Crisis: UN,” November 11, 2003, online at http://www.reliefweh.

int/rw/rwh.nsf/AIIDocsByUNID/eifi 76894430fdeec12S6ddbOO56ea4c. See also Jeffrey Gettleman and Alexis Okeowo, “Ugandan Rebels Delay

Peace Deal,” New York Times, April 11, 2008, online at http://www

. nytimes.com/2008/04/ 11/world/africa!11uganda.html (both accessedSep tember 11, 2008). 10. Human Rights Watch, Abductedand Abused: RenewedWar in North-

cm 1 . 1 Uganda, Uganda 5 2(A) (New York: HRW, July 2003), online

at http://www.hrw.org/reports/2003/uganda0703/ (accessed February 13, 2008). It is worth noting that, following its section on “Human Rights Abusesby the Lord’sResistance Army,” the report has another on “Human Rights Violations by Ugandan Government Forces.”See also Foundation

259

NOTES

260

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13 11.

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