Last week, Fatou Bensouda, prosecutor of the International Criminal Court (ICC), was in Uganda on her maiden visit to the country since taking over the leadership of the prosecution docket in 2012. In her statement to the media she acknowledged the importance of personally visiting situation countries “to meet with affected communities as well as the authorities, civil society, and members of the media, among other stakeholders.” This visit comes in the wake of Dominic Ongwen’s surrender and subsequent transfer to the Court on January 21, 2015. While this effort is highly commended, I am of the opinion that it should have happened long before Ongwen’s arrest.
The international justice wave hit Uganda in 2004 when former ICC prosecutor Luis Moreno-Ocampo, announced his intention to investigate grave crimes in Northern Uganda, after an official referral of the situation by President Yoweri Museveni. This ultimately led to the issuance of arrest warrants in July 2005 for the top LRA leadership. At the time, I was a law student and recall a flurry of activity by almost all the key actors in academia, civil society, the legal community, government, development agencies, and the ICC itself. These actors regularly convened meetings involving both elite and grass-root groups to discuss latest developments in the international justice field. Victims in Northern Uganda were a valuable source of knowledge and information on the conflict and were regularly consulted by different actors on a range of issues. At the time, the ICC was largely portrayed as the tool that would bring an end to impunity. Many forums hardly discussed the glaring challenge presented by the reliance of the court on state parties to carry out arrests of indicted persons. For many victims, therefore, the ICC was seen as the answer to all their problems, and they believed it would immediately try perpetrators of grave crimes and provide victims with reparations.
Fast forward to late 2011, which is when I started working on international justice issues in Uganda. I noticed that there was waning interest in this field. This can be largely attributed to the absence of any progress on the Uganda cases at the ICC. Indeed, several years after the arrest warrants had been issued, none of the suspects had made it to The Hague. In a 2013 paper analyzing international justice debates and developments in Uganda, Chris Tenove, an academic, expressed the view that in the absence of arrests, the ICC would have to reduce or end most of its programs in Uganda due to resource constraints. After years of trying to keep the international justice momentum in the country, the ICC is reported to have scaled down its operations in Uganda and also closed its outreach section effective December 31, 2014. The reasons for this move are believed to have been largely financial—by inference, the presumed benefits could not justify the costs associated with the court’s work in Uganda.
With minimal preparation, victims who had previously been at the helm of the international justice discourse were suddenly relegated to the backseat following the decision of many key actors to prioritize other interventions above international justice. Only a handful of institutions and individuals maintained active engagement with victims on these issues. To local victims’ groups, such as the African Youth Initiative Network (AYINET), the scaling down of ICC operations in the country was tantamount to betrayal of the trust they had in the court. After almost a decade of involvement, it felt like the court unfairly heightened victims’ expectations of justice.
It would be unjust to only criticize the ICC on this front given that in Uganda a number of actors fell short of expectations by significantly reducing their engagement with victims, particularly when the circumstances were challenging. In recent years, many actors, including donors and human rights organizations, seem to value quick milestones, and in the absence of timely arrests (as was the case in Uganda), their enthusiasm and support for international justice diminishes. However, one positive development for victims was that at around the time the international justice debate was fizzling out, the Government of Uganda began the process to develop a national transitional justice policy. Developing this policy involved consultation with a number of victims’ groups. This provided an opportunity for these groups to reengage on issues of importance to them, including peace and conflict resolution models.
The priorities of different actors from the start of the ICC investigation to the arrest of Dominic Ongwen, which also prompted the ICC prosecutor’s visit to Uganda, gives us the opportunity to assess the genuineness and sustainability of our engagement with victims. Prior to approaching victims either in search of information or while offering to assist them, all actors must always be ready and willing to follow this process through to the end of the bumpy international justice road. It is important to highlight that victims’ interests and needs are not dependent on the presence of legal developments in a particular case before the ICC. They therefore need consistent interventions regardless of the circumstances. Oftentimes, it is when nothing is happening that victims need the most attention and engagement.
In line with this, Bensouda’s visit is a breath of fresh air and a reassurance of the ICC’s interest in the plight of victims in Northern Uganda. However, even in the absence of progress on a case at the ICC, heads of court organs, such as the Office of the Prosecutor and Registry, must maintain regular physical and virtual contact with key stakeholders in a situation country. The court must also ensure that victims who participate in proceedings can also maintain such regular contact with legal representatives. Ultimately it may be prudent for the ICC to think of formulating a policy that clearly lays down the engagement strategy of these organs in situation countries where investigations have stalled.