Prosecuting International Crimes in Africa - PULP - University of ...

206 Chapter 9
context. 54 In some quarters the ICC was viewed as imposing justice on
Uganda in what was comparable to imposed aid with all its negativities. 55
A number of stakeholders, including religious and traditional leaders,
were of the view that the rebels would not surrender because of the threat
of prosecution by the ICC. The ICC was advised to suspend the warrants
and postpone the investigations. 56 The rebels had throughout the
negotiation process insisted on the lifting of warrants. From a more
analytical standpoint, the ICC warrants were looked at as a double-edged
sword: 57
When the ICC indicated that it was unwilling to lift the indictments before
the indicted rebel leaders had their day in court, the warrants of arrest were
transformed from a tool that had helped force the rebels to the negotiating
table, to one that was hindering the peace process.
An insistence on prosecution was viewed as promoting ‘negative peace’ at
the expense of ‘positive peace’. Negative peace ‘is (…) where there is no
direct physical violence, but where the structures in place continue to
oppress and exploit people’. 58 By contrast, positive peace ‘is when, in
addition to ensuring people’s physical security, structural issues, or the
underlying causes of war, are also addressed’. 59 From a victim’s
perspective, ‘peace without justice may make decidedly more sense than
justice without peace’. 60
Looking at the situation, it philosophically represented a multifaceted
tension characterised first by the tension between justice and peace and
secondly by the tension between traditional justice and ‘western’ justice. It
had been argued throughout the negotiations that the traditional
mechanisms of justice were the most viable alternatives to what was
considered to be obstructionist ‘western-type’ justice. To the Acholi
people, justice is supposed to be restorative and not punitive. 61 The tension
here between ‘traditional’ and ‘western’ arises from the varied objectives of
the two, premised on the paradigm of retributive justice vis-a-vis the
paradigm of restorative justice. While the former is primarily concerned
54 Perkins, as above.
55 C Dolan Imposed justice and the need for sustainable peace in Uganda presentation to Beyond
Juba Project//AMANI Project Transitional Justice Training Programme for
Parliamentarians (2008) http://www.beyondjuba.org/Conference_presentations/
Imposed_Justice_and%20the_need_for_Sustainable_Peace_in_Uganda.pdf (accessed 4
April 2010) 1.
56 Statement by the Uganda Human Rights Commission to 61st Session of the UN
Commission on Human Rights (April 2005) http://www.nhri.net/pdf/UG18b.pdf
(accessed 4 April 2010).
57 Uganda Law Society and Friedrich Ebert Stiftung Synthesis Report (n 48 above).
58 Dolan (n 55 above) 2.
59 As above.
60 P Hoening ‘The dilemma of peace and justice in Northern Uganda’ (2008) East African
Journal of Peace and Human Rights 338.
61 T Allen ‘Ritual (ab)use? Problems with traditional justice in Northern Uganda’ in N
Waddell and P Clark (eds) Courting conflict? Justice, peace and the ICC in Africa (2008) 47.