In Uganda, while LRA rebel leader Joseph Kony is on the run -- and the peace process remains elusive – plans are underway for war crimes trials and a truth commission.
Among those helping work out details is Professor Michael Scharf, director of the International Law Center at Case Western Reserve University in Cleveland. Scharf is also managing director of the Public International Law and Policy Group. He spoke to VOA English to Africa Service reporter Joe De Capua about his recent 10-day visit to Uganda, where he worked with the government on its war crimes and truth commission legislation.
"We're basically trying to help the government be in a position where it can prosecute Joseph Kony, the other leaders of the LRA (Lord's Resistance Army) and other people on all sides of the conflict that have committed atrocities," he says.
Asked whether the legislative work would interfere with the peace process, Scharf says, "First of all, the peace process has been going on for a while in fits and starts, but Joseph Kony has made it pretty clear that he is not willing to sign the deal. And just last week, there was a joint operation by the Ugandan government army and the South Sudanese army and the Democratic Republic of Congo's army to basically track down Joseph Kony. They destroyed all of his bases and he's on the run. So, the peace process is sort of on hold now anyway. But in any event, whether Joseph Kony is captured through this military operation or he goes back to the peace table, he and a number of other people are going to have to be brought to justice. And right now the Ugandan system is not capable and ready to do that," he says.
If the LRA leaders are not prosecuted domestically, they will be sent to the ICC, International Criminal Court, at The Hague. But Scharf says that is not the preferred method of prosecution.
"The whole idea of the International Criminal Court in The Hague is that it's a court of last resort. And it is built [on] the premise that it wants to encourage domestic prosecution whenever possible. And so, it may be that someone like Joseph Kony, if he's captured, and the Ugandan government does not yet have a functioning war crimes chamber, then he'll have to go to The Hague. But there are many other people who need to be tried. The International Criminal Court is only equipped to handle a couple of individuals. And what they're going to want to do is keep the pressure on Uganda so that Uganda gets all of its act in order so it can do domestic prosecutions. And in particular, Uganda has become the most important case study for the International Criminal Court because next year the ICC is having its review conference in Kampala, Uganda. And this is the first review conference since the court was created 10 years ago and it's a moment like the Olympics where the whole world will be looking at Uganda," he says.
Such cases often raise the question whether it's more important to follow the rule of law or seek a speedy peace deal that might offer some type of amnesty to Kony. Scharf says, "What we've learned through other empirical cases, like the situation with (former Liberian leader) Charles Taylor, where they basically said, all right, we won't prosecute you before the Sierra Leone tribunal if you go into exile in Nigeria and are a good person, is that people like Joseph Kony and Charles Taylor, who have a long history of committing atrocities and corruption and being a warlord, cannot be trusted to be partners in a peace process."
He says that a "sorting mechanism" is needed "so that the worst perpetrators, like Joseph Kony, will face international justice. But other people, for example people who were kidnapped in their youth and turned into child soldiers, will be able to go through traditional justice or a truth commission approach so that there can be reconciliation and peace can take hold in the country. So you can have it both ways."
Besides draft legislation for a war crimes tribunal, another measure addresses the issue of a truth commission or, in Uganda's case, a truth forum. Scarf calls the idea of a forum "very innovative." He says, "It would have both people at the central government level and also in the region and it would also have some international representation. They're talking about 19 experts, who would then be there to take the testimony of people, who would come forward, much as they did in South Africa, and confess and act contrite, and they would have a historic record. And then most of those people would then be forgiven. If it turned out that some of those people had committed the worst atrocities imaginable, they would then be transferred over to the war crimes chambers for prosecution."
Professor Scharf and others will return to Uganda in February for more meetings on the tribunal and truth forum legislation. Uganda's parliament could approve the legislation that same month. "We're going to go back a subsequent time later in the spring to work with the judges and prosecutors and bring them up to speed in the kinds of unique law that applies to war crimes and the procedures and the due process that will be required so that their process is above reproach," he says.