On some issues I would go further in criticising the international criminal court (ICC) than

does Richard Dowden. For instance, it is difficult to avoid the impression that the court is
biased in favour of the Ugandan government. The ICC prosecutor unwisely chose to
announce its intervention in northern Uganda at a joint press conference with President
Museveni, and eyebrows have been raised at its decision to issue warrants only for
members of the Lord’s Resistance Army (LRA) and not the Ugandan forces.
The ICC prosecutor argues that he has applied “gravity criteria” to alleged crimes. Yet over
1m people have been forced to live in dreadful displacement camps, many of them by the
Ugandan army. Forced displacement is a crime within the remit of the court, and many
more have died in the camps than at the hands of the LRA, so why has no one been held to
account? The answer, according to the prosecutor, is that gravity criteria are linked to cases
of instrumental killing. Indirect killing in displacement camps does not count. But if that is
so, why was a warrant subsequently issued for Thomas Lubanga in the Democratic Republic
of Congo, who stands accused of enlisting children? Is that worse than murder? If so, why
was it not considered so grave in Uganda, where the practice has been widespread on both
sides of the conflict?

Such apparent biases and inconsistency do nothing for the ICC’s image. Combined with the
kind of argument put forward by Dowden, they seem to make a compelling case against the
usefulness of the court. But I am not convinced, and remain broadly positive about the ICC.
Why?

There is a danger, when discussing justice and war in Africa, of falling into a deeply
pessimistic view that assumes that Africans don’t need conventional judicial mechanisms;
that they have found a way of living with dreadful events, so should be left to get on with it.
Certainly many Africans have not had much choice about the role of justice in their lives.
But change can be dramatic. The ICC statute commits signatories, including 29 African
states, to end impunity for those who perpetrate the worst crimes. It also requires the court
to act in the interests of justice and victims. This is an agenda that most people I know,
including most Africans, find attractive.

Dowden points out that almost all of Africa’s nastiest wars in recent times have ended in
local deals. In Mozambique, Sierra Leone, Angola, Nigeria, Zimbabwe and South Africa,
those that have raped and killed have been reintegrated into society, and the leaders of
failed movements bought off. But there are specific reasons why each of these settlements
has seemed to work, and many other attempted settlements have failed, including some in
the countries mentioned. Historical evidence tends to show that appeasement fails more
often than it succeeds. Moreover, forms of forgiveness after terrible acts are hardly unique
to Africa—think of France after the second world war, or the US after the civil war. In most
cases, the key factors in making reconciliation possible are an adequately functioning state
combined with rising incomes.

At the same time, it is much harder than is frequently asserted to assess the political effects
of international criminal justice. Particularly in a situation of ongoing war, we have almost
no experience of it being tried. However, prosecution through institutions whose actions
are based on agreed principles is widely considered to be helpful in national judicial
systems. Also other international responses to extreme violence have frequently made
things worse.

Returning to the specific case of Uganda, I disagree with Dowden’s claim that the ICC’s
actions there show that it has learned nothing from the problems that have bedevilled other
international tribunals. Indeed, it was probably to avoid some of the dilemmas that have
faced the Rwanda tribunal that the ICC’s prosecutor has been so keen to earn President
Museveni’s public approval. This turned out to be an error. There have been others. But the
ICC is on a learning curve as its staff work through the implications of its statute, both in law
and in the real world.

The court has actually shown a rather astute sense of timing in Uganda. When it became
involved in the country in 2003, peace talks were going nowhere. That changed in 2004, at
least partly because of the ICC referral. Sam Kollo, who led the negotiations for the LRA, was
keen to strike a deal to avoid being arrested. The court’s response was to keep a low profile,
until Kollo had surrendered to the army and the peace talks had ground to a halt in 2005. By
that time, warrants had been prepared for five of the top commanders of the LRA, but were
being kept under seal. Their existence was eventually leaked, but far from ending the
possibility of further discussions, it helped kickstart the process again, this time across the
border in Sudan.

The LRA and some of those supporting the talks argue that the existence of the warrants
now makes a final settlement difficult. But it is also one reason both sides are willing to go
on talking. On the one hand, the LRA commanders fear the consequences of being tried in
The Hague. On the other, the Ugandan government has become aware that the LRA
commanders would have recourse to a high-quality defence team, and revelations made in
public proceedings could be very embarrassing.

In the end, some arrangement will be found for the warrants. Under the court’s statute, the
UN security council can place an annually renewable hold on their execution. Another
possibility is that the complementarity procedures in the statute will be adapted to
recognise some combination of adapted “traditional” rituals with more conventional
judicial measures. Perhaps, for those who want the ICC to stand for a particular approach to
justice, this will mean it has failed to fulfil expectations. My view is that it would not be such
a bad thing to strike an arrangement with the LRA that involves compromises over the ICC
prosecution, so long as it preserves the principles expressed in the court’s statute. That
strikes me as far more appropriate than the offer of politically powerful positions and
blanket impunity. To me it seems like a significant step forward.