THE INTERNATIONAL CRIMINAL COURT IN CENTRAL AND EASTERN AFRICA: BETWEEN THE POSSIBLE AND THE DESIRABLE By PABLO CASTILLO DÍAZ A Dissertation submitted to the Graduate School-Newark Rutgers, The State University of New Jersey in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Global Affairs written under the direction of Dr. Yale H. Ferguson and approved by _______________________________ _______________________________ _______________________________ _______________________________ Newark, New Jersey May 2010 ABSTRACT OF THE DISSERTATION “The International Criminal Court in Central and Eastern Africa: Between the Possible and the Desirable” By Pablo Castillo Díaz Dissertation Director: Dr. Yale H. Ferguson The field of transitional justice has been haunted and enriched by the peace versus justice dilemma and the difficulty of navigating the thin line between the logic of appropriateness and the logic of consequence. These questions have gained renewed urgency over the last two decades as the increasing vigor of international criminal law and the human rights discourse demanded that accountability replace impunity as a general norm after mass atrocities. The goal of this study is to challenge the notion that war crimes courts may undermine peace and stability by adapting this debate to a new institution, the first ever permanent international criminal tribunal, and its first investigations and trials in Central and Eastern Africa. The central thesis of this dissertation is that, in the context of the International Criminal Court’s involvement in Uganda, Sudan, and the Democratic Republic of Congo, the pursuit of justice measures has not undermined peace. I set out to examine whether the court’s multiple interventions in this region of the world have been followed by a deterioration or exacerbation of the conflicts under study and/or the failure of peace negotiations caused by the question of accountability. I conclude that this has not been the case in the contexts under review, and that it is wrong to present the conceptual pairs of peace and justice as opposing or contradictory. ii DEDICATION To my professors, for their support and their guidance. To my interviewees, for taking time out of their busy schedules to meet with an unknown student. To everyone that strives to bring peace, justice, or both in some of the most dangerous corners of the planet. To my parents, for helping me get here. And to Lisa, for her unconditional love and infinite patience. iii TABLE OF CONTENTS 1. Introduction: Transitional Justice and the Peace Versus Justice Debate........................................................................................................…..page 1 2. The Others: Ad Hoc, Hybrid, and Domestic Mechanisms of International Justice………………………………………………………………………page 29 3. Amnesty in the 21st century: The Case of the International Criminal Court………………………………………………………………….…….page 75 4. The International Criminal Court in Northern Uganda: Peace First, Justice Later?...........................................................................................................page 106 5. In the Heart of Darkness: The ICC in the Democratic Republic of Congo……………………………………………………………………..page 138 6. The Hardest Test: The International Criminal Court in Sudan…..........................................................................................……….page 176 7. The Peace Versus Justice Debate: Tales from Elsewhere……………………………………………………….………...page 215 8. Bibliography……………………………………………………………....page 250 9. Curriculum Vitae………………………………………………………….page 290 iv 1 CHAPTER 1 INTRODUCTION: TRANSITIONAL JUSTICE AND THE PEACE VERSUS JUSTICE DEBATE “Fiat Justitia et Pereat Mundus” (Emperor Ferdinand I). “It is never a struggle between good and evil, but between the preferable and the detestable” (Raymond Aron). The International Criminal Court is facing its first tests of performance in the complicated political environments of Uganda, the Democratic Republic of Congo, Sudan, and the Central African Republic. Still a relatively young institution that has yet to complete its first trial, it is uncertain whether this court will successfully navigate the thin line between the logic of appropriateness and the logic of consequence, law and politics, peace and justice. These dilemmas have haunted and enriched the ever- expanding field of transitional justice, opened new interdisciplinary bridges between international relations and international law, witnessed the proliferation of international courts and truth commissions in detriment of amnesties or inaction, and fueled endless debates about the wisdom or folly of such pursuits in each post-conflict situation. These questions garnered renewed urgency and prominence in the nineties, as the increasing vigor of international criminal law and the human rights discourse demanded that accountability replace impunity as a general norm after mass atrocities. Supporters attached a long list of expectations and unqualified blessings to the new mechanisms of 2 international justice, including deterrence, social reconciliation, and peace. Detractors viewed it as an impediment to the prudence and political bargaining necessary to ensure stability and strengthen domestic political institutions. At their most extreme, they dismissed the preventive effect of international criminal law, and predicted, instead, the exacerbation of violence. The goal of this dissertation is to challenge the notion that war crimes courts may undermine peace and stability by adapting this debate to a new institution, the International Criminal Court, and to today’s current environment in the troubled heart of Africa. The central thesis of this study is that, in the context of the ICC’s involvement in Africa, the pursuit of justice measures has not undermined peace or peace negotiations. This study was framed by questions about the political overtones of a non-political institution -an independent court focused on individual criminal accountability-, and the appropriateness of weighing the consequences of its actions and letting that interfere with or affect the judicial process. It was inspired by the court’s quest to successfully avoid the pitfalls of either legal evangelism or fundamentalist realism. And it was motivated by recurrent discussions over the impact of the perennial peace versus justice dilemma on the tribunal’s future. I have set out to examine whether the court’s multiple interventions in this region of the world have been followed by a deterioration or exacerbation of the conflicts under study and/or the failure of peace negotiations caused by the question of accountability. I conclude that this has not been the case in Uganda, the Democratic Republic of Congo, and Sudan, and have complemented this with a briefer review of this argument in other scenarios, including the Central African Republic, Sierra Leone, Argentina, Colombia, Afghanistan, Liberia, Republic of Guinea, Kenya, Cambodia, and 3 the former Yugoslavia. As the following pages will attempt to show, it is wrong to present the conceptual pairs of law and politics, and peace and justice, as opposing or contradictory. In this introductory chapter, I will elaborate my central thesis and research questions; place my investigation within the pools of relevant literature that it draws upon, and explain the gap that this dissertation intends to fill; and finally, lay out a chapter-by-chapter structure of the text and briefly explain the methodology. In order to obtain relevant data, I have relied on a variety of sources: academic literature within the fields of transitional justice, human rights, and international security; global and local media outlets, given that the object of study is contemporary and many of the events herein described have unfolded in the last few years or even months; reports from non-governmental organizations, with particular attention paid to Human Rights Watch, Amnesty International, the International Center for Transitional Justice, and the International Crisis Group, as well as population-based surveys and quantitative data aptly compiled by similar organizations; in-depth interviews with individuals with relevant knowledge or expertise, some openly and some confidentially; and field research in the ICC headquarters in The Hague in the summer of 2007, the Seventh Annual Assembly of States Parties to the Rome Statute, which took place in December of 2007 in New York, and in trips to Uganda and Liberia. The interviewees, to which this researcher is indebted and grateful, included academics, international lawyers, representatives of civil society, representatives of international organizations -United Nations, European Union, Organization for Security and Cooperation in Europe, International Criminal Tribunal for Former Yugoslavia-, and even a former peace negotiator. My field research 4 enabled me to interview ICC personnel representing each of the three main branches of the court -the Presidency, the Office of the Prosecution, and the Registry- and to become familiar with its interactions with member-states and civil society. Discussions with countless members of panels, workshops, and conferences over the last four years have inevitably shaped this dissertation, as well as the useful guidance of my professors. In a foundational article titled “Trials and Errors: Principle and Pragmatism in Strategies of International Justice” (2003), Jack Snyder and Leslie Vinjamuri criticize what they would characterize