Challenging the International Criminal Court (ICC) by Using Traditional Form of Justice in Africa

I. Introduction

Very often, when a country wishes to move from war to peace, various options may be tried, including trials in an international or national court of law as well as other non-punitive approaches with various names. In recent years, there has been a growing demand around the world for transitional justice mechanisms, such as truth commissions. Tina Rosenberg suggests that “…a country’s decisions about how to deal with its past should depend on many things: the type of war endured, the type of crimes committed, the level of societal complicity, the nation’s political culture and history, the conditions necessary for war to reoccur, the abruptness of the transition, and the new democratic government’s

power and resources.” [1] One may add national “interests”.

The International Criminal Court (ICC) issued warrants of arrest for Kony and four other Lord’s Resistance Army (LRA) commanders - Vincent Otti, Raska Lukwiya, Dominic Ongwen and Okot Odhiambo - accusing them of carrying out massacres, mutilating their victims and kidnapping thousands of children to be used as fighters and sex slaves. Now, two years on, it finds itself at odds with Uganda's government, which first referred the case to it, but is now offering the rebels amnesty and protection if talks succeed. [2]

This article examines this dispute and seeks to locate the debate about peace and justice in Northern Uganda.

II. Defining Justice

Defining justice is a difficult task. Is it justice in the narrow sense of criminal justice, or justice in the broader, restorative, sense? Talking about “justice”, one should note that it is a flexible concept. Justice in situations of transition is not self-defining. It is about what is required and what is possible in a given situation. There are different kinds of justice: retributive justice, deterrent justice, compensatory justice, rehabilitative justice, exonerative justice and restorative justice. [3] Each has a time and a place in a given situation and no one model of justice covers all needs.

III. "Mato Oput" as Restorative Justice

It is important to note that restorative justice views crime essentially as a violation of people and relationships between people. Its primary objective is to correct such violations and to restore relationships. As such, it necessarily involves victims and survivors, perpetrators and the community, in the quest for a level of justice that promotes repair, trust building and reconciliation. It draws attention to the need to create a milieu within which all those implicated in crime come to realize the need to uphold the principles of the law, co-operating in an endeavor to discern the best way to achieve this. [4]

In other words, restorative justice is concerned with resolving crime and conflicts. It focuses upon the end result (harmonious community relations) and it is characterized by community participation that involves both the victim and the perpetrator, with a view to restoring rights that have been abused.

In fact, Mato Oput, which in the Acholi language literally means "to drink a bitter potion made from the leaves of the ‘oput’ tree" is one of the mechanisms for forgiveness and reconciliation among the Acholi people in Northern Uganda. The drinking of this bitter herb means that the two conflicting parties accept the bitterness of the past and promise never to taste such bitterness again. The payment of compensation follows the ceremony. The victim or his/her family is compensated for the harm done, for example, in the form of cows or cash. Is such kind of compensation is enough to satisfy people? It is believed by many Acholi that Mato Oput "can bring true healing in a way that formal justice system cannot.” [5]

It doesn't aim at establishing whether an individual is guilty or not, rather it seeks to restore marred social harmony in the affected community.

IV. The Question of Using Mato Oput for Gross Violations of Human Rights: The Kony’s Case

The referral of the Northern Uganda conflict to the ICC in December 2003 and the subsequent issue of warrants of arrest for Joseph Kony and other four high-ranking LRA commanders, [6] have sparked considerable controversy in Uganda and in the international sphere. Not everybody welcomed these arrest warrants. On the one hand, proponents of prosecution argue that individuals who commit crimes against humanity should be punished for the sake of justice.

They say that it would be unprincipled - as well a dangerous message worldwide - for the prosecutor to submit to the demands of armed thugs who have been maiming, raping and killing with impunity. On the other hand, opponents of prosecution argue that the ICC should give peace a chance, as it is more important to save civilians than to judge perpetrators. Moreover, withdrawal by the ICC would not mean the end of accountability, they argue, but the beginning of indigenous justice processes.

This group prefers traditional justice to the ICC, and argues that modern justice will have a negative impact on the peace process in Northern Uganda. For them, the arrest warrants would make further peace negotiations impossible. This is a typical case of balancing peace and justice as the trend in Uganda now, is how to use the traditional form of justice named Mato Oput instead of the ICC.

Barney Afako (2002) states that: “The unacceptably high costs of civil war have caused Ugandans to re-assess approaches to resolving conflict. Among the Acholi of northern Uganda, the bitter experience of unending conflict has generated a remarkable commitment to reconciliation and a peaceful settlement of the conflict rather than calling for retribution against the perpetrators of serious abuses… This call for amnesty was underpinned by their faith in the capacity of the community and cultural institutions to manage effective reconciliation even against the background of serious offenses. Many conflicts yield meaningful distinctions between victims and perpetrators. Yet the majority of Acholi recognize that most combatants in the LRA were forcibly abducted and have themselves been victims.

This generates the realization that anyone could be subjected to the conditions that produced the perpetrators of the crimes experienced in the conflict. Combined with a profound weariness with the war and the suffering it has caused, this creates a moral empathy with the perpetrators and an acknowledgement that the formal justice system is not sufficiently nuanced to make the necessary distinctions between legal and moral guilt. As a result, most Acholi have decided to promote reconciliation through traditional mechanisms, rather than a retributive understanding of justice, to create conditions to end the war and reintegrate the community.” [7]

However, there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Therefore, one could ask if the Mato Oput is an attempt by Uganda to justify or disguise impunity.

Answering to this question one should test if this Mato Oput mechanism implies good faith. That is true because restorative justice employs integral responses that focus upon redressing the harm to the victims, holding perpetrators accountable for their actions and engaging the community in a conflict resolution process. It is highly participative, is forward-looking and is based on values of respect for all participants and community empowerment.

Is the Mato Oput designed to generate more truth, more justice, reparations, and genuine institutional reform? If the objective is to evade the State and society’s legal, ethical and political obligations to their people, it should be rejected. If not, someone could say that the purpose of this Mato Oput mechanism is just to shield some perpetrators (Kony and others). In this hypothesis, the process will violate international law and will not be in the interest of justice (society as a whole).

Therefore, the answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds this Mato Oput mechanism.

V. How to Conclude?

We conclude with a quote from Juan Mendez that “We need to be careful to counter attempts to disguise impunity with fanciful adjectives. ‘Restorative justice,’ for example, is a concept that in its proper setting is valuable and does have its place in a transitional justice policy. [8] Often, however, the term ‘restorative justice’ is used to advocate some alternative to criminal justice, to honest truth telling and full investigation of abuses. When used in such a way it is no more than an attempt to justify or disguise impunity.” [9] Suffice it to say that the paradox between peace and justice is an open question that we should all try to answer.

References

[1] Tina Rosenberg, “Afterword: Confronting the Painful Past”, in Martin Meredith, Coming to Terms: South Africa’s Search for Truth, 1999, p 328
[2] The ICC has insisted that Kony and four other LRA leaders must face justice, but the Ugandan government says it will convince the Hague-based court to lift the indictment… See UGANDA: Balancing forgiveness with justice. At: http://www.irinnews.org/report.asp?ReportID=55425&SelectRegion=East_Africa
[3] Charles Villa-Vicencio, “Restorative Justice”, in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the Puzzle: keywords on reconciliation and transitional justice, Cape Town, p.33
[4] Ibid, p.35
[5] See Liu Institute for Global Issues and Gulu District NGO Forum, "Roco Wati Acoli: Restoring Relations in Acholi-land Traditional Approaches to Reintegration and Justice", September 2005, available: http://www.ligi.ubc.ca/admin/Information/543/Roco%20Wat%20I%20Acoli-20051.pdf
[6] See The International Criminal Court, "Warrant of Arrest Unsealed Against Five LRA Commanders," ICC-20051014-110-En, 14 October 2005, available:http://www.icccpi.int/pressrelease_details&id=114&l=en.html They are accused of committing war crimes and crimes against humanity in Northern Uganda since July 2002
[7] Barney Afako, Reconciliation and justice: ‘Mato oput’ and the Amnesty Act (2002), at: http://www.c-r.org/our-work/accord/northern-uganda/reconciliation-justice.php
[8] Miriam J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice,” Harvard Human Rights Journal 15 (2002): 39-97; Pablo de Greiff, “The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted,” in The Age of Apologies, Mark Gibney and Rhoda Howard-Hassmann, eds. (forthcoming).
[9] Juan E. Méndez, “How to Take Forward a Transitional Justice and Human Security Agenda: Policy Implications for the International Community”, Cape Town, April 1, 2005

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ABOUT THE AUTHOR: Prof. Dr. Joseph Yav Katshung
Professor of Law at the University of Lubumbashi in the DRC and Attorney at Law in DRC. He is the founder and Managing Partner of a leading Law Firm in the Democratic republic of Congo known as “YAV & Associates LLP”. He holds a doctorate of Law from the University of Lubumbashi; a Masters degree of Law (University of Pretoria in South Africa); a Masters in Law (University of Lubumbashi in DRC), a Diploma in Transitional Justice (ICTJ-IJR/Cape Town).

Copyright Yav & Associates



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