Achieving Justice Through the International Criminal Court in Northern Uganda

• Author: Tammy Castle,Terry Beitzel
• Published date: 01 March 2013
• Date: 01 March 2013
• DOI: http://doi.org/10.1177/1057567712475306
• Subject Matter: Articles

Article
International Criminal Justice Review
23(1) 41-55
Achieving Justice Through
ª 2013 Georgia State University
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DOI: 10.1177/1057567712475306
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Court in Northern Uganda:
Is Indigenous/Restorative
Justice a Better Approach?
Terry Beitzel1 and Tammy Castle1
Abstract
The self-referral by the Ugandan government for the situation concerning the Lord’s Resistance
Army/Movement in Northern Uganda triggered the first referral for the International Criminal
Court (ICC). The purpose of this article was to examine the dimensions of justice, and analyze
whether the ICC’s role best serves the needs of the community in Northern Uganda. More specif-
ically, this study investigates several guiding orientations of the ICC, such as the rule of complemen-
tarity and the increased focus on victims, and asserts that international third-party actors must
consider whether retributive/punitive approaches can deliver justice. Restorative justice is explored
as an alternative vision of justice, and one that is already present and practiced by the Acholi people.
Given the complexity of issues facing postconflict societies, as well as the strengths of restorative
justice to heal the community, the authors argue that traditional or indigenous forms of justice
represent the best approach for obtaining justice for victims.
Keywords
comparative crime, justice, North Africa, court, law
In June 2002, when the Rome Statute of the International Criminal Court (ICC) went into effect,
the then United Nations Secretary—General Kofi Annan proclaimed:
The long-held dream of a permanent International Criminal Court (ICC) is nearing reality. Our hope is
that, by punishing the guilty, the ICC will bring some comfort to the surviving victims and to the com-
munities that have been targeted. More important, we hope it will deter future war criminals, and bring
1 Department of Justice Studies, James Madison University, Harrisonburg, VA, USA
Corresponding Author:
Tammy Castle, Department of Justice Studies, James Madison University, 90 Bluestone Dr., MSC 1205, Harrisonburg, VA
22801, USA.
Email: castletl@jmu.edu

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International Criminal Justice Review 23(1)
nearer the day when no ruler, no State, no junta and no army anywhere will be able to abuse human rights
with impunity. (http://www.un.org/ffd/pressrel/19b.htm)
Ten years later, the world’s first permanent court is at the crossroads of trying to establish
whether the ICC can bring justice to perpetrators of war crimes, crimes against humanity, genocide,
and possibly crimes of aggression when national courts are unable or unwilling to do so. The court
was set up for two primary reasons: first, to hold accountable, on internationally agreed standards,
those individuals (not groups) in leadership positions who commit horrendous crimes against
large groups of people and, second, to have a court immune from political interference (see
Schabas, 2004). The purpose of this article is to assess whether the ICC can be deemed adequate
and accurate to deal with the transition from violence to peaceful politics in the context of Northern
Uganda. This contribution offers a critique of the ICC’s involvement and the outline of an alterna-
tive framework—restorative justice—for achieving justice in which Ugandans are a crucial and
active resource, and not simply passive recipients of international norms and external third-party
interventions.
This article addresses several issues that are at the core of central guiding orientations of the ICC
such as the principle of complementarity and an increased focus on victims—and the role of the ICC
in larger issues of justice in violence-torn societies. It is not the purpose of this article to address
neither the intricacies of international law nor specific details of events ‘‘on the ground’’ in Northern
Uganda. Rather, the focus here is on what is meant by ‘‘justice’’ and, more specifically, should the
discussion remain in the polemical debate between justice and peace or can a better position be
articulated, with reference to who is involved in ‘‘bringing’’ or ‘‘making’’ justice? In engaging this
question, the study first examines the role of the ICC to date in the situation in Northern Uganda
because this was the first case of a self-referral by a state to the ICC. Further, this article highlights
ongoing concerns with the ICC’s ability to pursue international justice, while also reexamining,
briefly, the different types of justice assumptions and findings. The authors propose that a ‘‘prob-
lem-solving’’ approach—questioning the general assumptions of justice by judiciary and looking for
alternative forms of seeking justice—is the better approach to take in moving from violence to
peaceful politics in Northern Uganda.
This exploration then provides an overview of restorative justice as understood by Western advo-
cates and practitioners, with empirical evidence that restorative justice is more effective than retri-
butive justice (Sherman & Strang, 2007). The concluding assertions argue that restorative justice—
by involving the local community to address the needs of victims and the responsibilities of the
offender and the community (1) is better able to respond comprehensively to the justice require-
ments, (2) is compatible with peacebuilding in war-torn societies, and (3) and dissolves the dichot-
omy often presumed between justice and peace. The resulting proposition is that a restorative justice
approach represents a more adequate theory of justice and has considerably more support from the
local populations than do the retributive–punitive–judicial approaches currently informing interna-
tional attempts at dealing with the tensions between justice and peace for violence-torn societies.
The ICC is centrally located in this debate as they seek to compliment domestic courts by helping
to deliver justice.
The ICC and Northern Uganda
The ICC was established in July 1998 when the U.N. Security Council adopted the Rome Statute
of the ICC. With the court seat in The Hague, Netherlands, the court officially began operations in
2002 and the judges and prosecutors took office in 2003. To date, nearly 100 states are parties to the
statute, of which 24 are African states, including Uganda. One goal of the court is to end impunity for
the most serious human rights crimes (Schabas, 2004).

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Beitzel and Castle
43
The ICC began issuing arrest warrants in 2005 for crimes of genocide, war crimes, and crimes
against humanity. The court was to serve as a court of last resort when national courts had failed
to bring cases to trial. The ICC cannot prosecute crimes retroactively; thus, only crimes committed
after 2002 can be brought before the court. Referrals to the court can be made in one of the three
ways: referral by a state party; referral by the Court of the Security Council; and by authorization
from the Pretrial Chamber of the ICC (Nouwen & Werner, 2010).
The Republic of Uganda became the first state party to refer a case to the ICC’s Office of the
Prosecutor (OTP) in 2003, when they submitted a self-referral for the situation involving the Lord’s
Resistance Army/Movement (LRA/M; Nouwen & Werner, 2010). The LRA/M was created by
Joseph Kony in 1988, with aims to overthrow the Museveni regime and take control of the country
(Apuuli, 2011). However, instead of spreading democracy the LRA/M participated in gross human
rights violations as children were abducted for the purpose of staffing the army (boys) and sexual
slavery (girls; Ssenyonjo, 2007). Furthermore, the LRA/M has been accused of using abducted chil-
dren for labor, as well as human shields during conflict (Apuuli, 2011), and has been designated as a
terrorist organization by the United States and government of Uganda (Ssenyonjo, 2007).
The self-referral by President Museveni came after over a decade of failed military interventions
and peace negotiations, in addition to an escalating humanitarian crisis (Nouwen & Werner, 2010).
In 2005, partly because of Uganda’s early support of the court and subsequent self-referral, the ICC
issued arrest warrants for Kony and four other senior leaders in the LRA/M. The effect of the five
arrest warrants issued by the ICC has been much disputed both domestically and internationally. On
one hand, the warrants helped to bring the LRA/M leaders to the negotiating table in 2006. Uganda
was encouraged by the government of Southern Sudan (GOSS)—who had provided training and
weaponry to the LRA/M—to negotiate in Southern Sudan’s capital city of Juba for a peaceful set-
tlement to the conflict (Ssenyonjo, 2007).
On the other hand, the issuance of warrants by the ICC has hindered the pursuit of peace. First, at
the time of the referral, the International Court of Justice (ICJ) was considering whether the govern-
ment of Uganda had ‘‘violated international law in its involvement in the eastern DRC’’ (Nouwen &
Werner, 2010, p. 947). The Democratic Republic of Congo had made claims against the Ugandan gov-
ernment, and the ICJ was adjudicating. However, due to the cooperation of Uganda on the issue of the
LRA/M no charges have been filed, or investigations opened, into whether or not government officials
had committed crimes in the DRC. The lack of charges filed against possibly corrupt state actors harms
the legitimacy of the Ugandan government and ongoing peace negotiations (Apuuli, 2011).
Second, the LRA/M leadership wanted the ICC proceedings to be dropped as a condition of
peace....