For the past two decades, the war in the northern Uganda has ravaged its people with 1.8 million displaced into camps (representing 80% of the population). Children are abducted for their particular vulnerability and subjected to commit atrocious acts to initiate them into the Lord’s Resistance Army (LRA). Surviving through a culture of fear which has been inculcated both by the actions of rebels and by government soldiers, children have also had to shift in the face of “night commuting,” where they walk for miles from “protected villages” (a colloquialism for internally displaced camps) into towns to sleep in cramped quarters without adult supervision. Such dire circumstances have been documented through vivid images found in the powerful documentary, “Invisible Children.” The long term consequences of these clear disruptions are uncertain. But what is clear is the Acholi people, who must face the daily consequences, have had little choice but to focus on the nucleus: to end the conflict in the north by any means necessary.

However, while the debate rages on concerning the amnesty instituted in 2000 and traditional methods of justice by the Acholi people and their contradiction with international criminal law, the long view of justice and peace have been de-emphasized. In an extremely complicated and highly contentious debate which involves a critique of international legal standards, the sequencing of peace before justice (addressed in RLP’s working paper 17) is worrisome. Peace is not simply the cessation of war, it must also be sustainable. Luring rebels out of the bush under the guise of an amnesty or traditional notions of forgiveness will be insufficient. For what is the incentive for former combatants to reintegrate into their communities (now which have been forcibly displaced into camps) if “justice” through prosecution is merely sought later? The government’s commitment to the amnesty has already been compromised given the referral to the ICC. It is simply short-sighted to place justice as an afterthought when peace and its ultimate sustainability requires a view of justice. What deterrence for future conflict will result from accepting impunity now? Even beyond the traditional views of justice (which defers what constitutes punishment) of the Acholi, how will this perspective impact the efficacy of the national legal system? What of other conflicts outside of the north?

Then the ICC and its jurisdiction. Amnesties are seen to fail the complementarily test (the idea that a state with original jurisdiction has first opportunity to prosecute in good faith), which then open up the possibility of testing admissibility through Art 17§ 2(c) of the Rome Statute regarding willingness (or lack thereof) or inability to investigate or prosecute impartially. The ‘impartially’ qualification provides the ICC room to question whether the national courts could satisfy the requirement of international criminal law even if the national courts later choose to ignore the amnesty which has been granted (“temporarily”) to former combatants who return willingly from the bush. There have been statements made that the ICC intervention at this stage is disruptive for the peace process as presumably the amnesty is blanket for all rebels including the leader, Kony. However, such protests regarding timing itself addresses concerns regarding jurisdiction generally and not focused on timing because potentially if the amnesty is adhered to (by the government) and Kony has surrendered, then the eventual prosecution of Kony in front of the ICC will disrupt the amnesty and the traditional mechanisms of justice (notions of forgiveness and integration). Which says a great deal about intentions and priorities.

There are a number of other thoughts to be hashed out regarding the transitional feasibility of reintegration, individual v. tribal desires (triggering countermajoritarian views) and needs of international law to recognize complicated conflict situations rather than imposing a single framework…