Which is it to be — peace in Uganda or Coney being brought to justice?

Archbishop Desmond Tutu makes no bones about it. In 1994 there was a real fear that an otherwise successful peace process was about to fail; that extreme elements within the apartheid security forces would stage a coup d’etat rather than be held accountable for their crimes against humanity. In a move which is still criticised by some former activists and victims, justice was sacrificed in favour of peace. The criminals walked free, and South Africa moved towards a peaceful transformation.

In 2006 the same choices face Uganda. Against all odds, a ceasefire has been negotiated in the long-running conflict between the Lord’s Resistance Army (LRA) and the Government of Uganda (GOU), which has spilled into Sudan and Congo and caused tremendous suffering.

The time seems to be ripe, all parties seem committed to the peace process, but there is one major obstacle: the International Criminal Court (ICC) has issued arrest warrants for senior LRA leaders — including their top man Joseph Koney pictured above. The LRA states that this puts the entire peace process in jeopardy.

Is justice really being ‘sacrificed’ in favour of peace? What is ‘justice’? In Europe and north America the dominant paradigm is retributive justice. A crime has been committed, so a guilty party must be identified and punished. To some extent it stems from the western individualistic world-view (‘I exist primarily as an autonomous individual’; ‘I think therefore I am’).

But there is another paradigm. Restorative justice seeks to restore harmony to the community, to repair and heal what is broken, and to bring the most benefit to the most people. It is strong in traditional cultures and faith communities, and has communal roots (‘I exist primarily in relationship to others’; ‘We are, therefore I am’; the African concept of ubuntu). It focuses on the victim, the offender and the community.

Most justice systems will have an element of both, but retributive justice tends to dominate. This is as true in international law and ‘universal’ declarations of human rights as it is in domestic criminal justice. Europe and north America define the ‘international community’, even though other cultures and world-views make up three-quarters or more of the world.

The current stand-off in Uganda is a classic and tragic example of the tension between these two paradigms. After more than 20 years of conflict, what will benefit the communities of Uganda, Congo and Sudan most? What will bring the most benefit for the most number of people? What will heal the brokenness?

President Yoweri Museveni has given an answer, reportedly saying that peace is more important than an international trial.

Who has the right to decide? Local stakeholders seem united in their desire for peace rather than retribution. The victims themselves, represented by their civil society organisations, faith communities and traditional leaders are in no doubt (and my own observations on the ground confirm this). Both warring parties agree; indeed GOU has stated that it will not enforce the arrest warrants as long as the peace process continues, and that it will press the ICC to drop the case if the LRA apologises (echoes here of the South African Truth and Reconciliation Commission).

The mediators (Government of Southern Sudan) also agree. Apparently the only people who disagree are the ‘international community’.

It seems very strange that in a conflict where all local stakeholders have agreed on a process which has a real chance of bringing peace, external forces can so easily step in and derail it. Incidentally, this is a key difference between northern Uganda and Darfur. In the latter the responsible government is clearly unable to resolve the conflict (and is widely regarded as the main perpetrator), many local stakeholders are calling for ICC involvement, and there is no peace process worthy of the name to be derailed.

It seems that is it very difficult for the ICC to drop a case once it has become involved, and it has recently stated its hope that the arrest warrants will be executed.

The matter was referred to the ICC by GOU at a time when peace negotiations were moribund, although even then there was ambiguity, as an amnesty law had already been enacted in Uganda. But whatever the genesis of ICC involvement, is there no mechanism for recognising changing circumstances?

If the ICC is initially involved when a government is unable to deal with an issue, can it not become uninvolved when that government itself subsequently solves the problem?

There are many pitfalls before a lasting peace is established in northern Uganda. The root causes of a very complex conflict must be addressed, and that will be a painful process, not least for GOU. Decades of suffering and bitterness must be healed. The peace process may falter for any number of reasons.

But let the international community at least ensure that it does not fail due to outside intervention by the ICC. And maybe this case indicates that it is time to review international law and human rights conventions through the lens of restorative justice?

John Ashworth is a writer on Uganda and Sudan, based in South Africa.