2007 Annual Student Human Rights Conference
24th February 2007
University of Nottingham Human Rights Law Centre
“International Criminal Accountability”
Panel Theme: Alternative Forms of Justice
Paper Title: Ode to Equality in an Unequal World. The International
Criminal Court’s Investigation into the Situation in Northern Uganda
– A Third World Approach to International Law (TWAIL) Inquiry.
Author: Noha Aboueldahab
‘There is this international justice which you people in the West are so keen to see brought to bear on
people like Kony. But Kony is not Western, this war is not yours. It is our problem and we must solve it
our way, by meeting, talking, reconciling and forgiving.’ 1
The legacy of colonialism, a common unifying trait of the otherwise diverse Third World is, as many have
argued, not simply a thing of the past. 2 Differential treatment in the practices of the international legal
order, combined with unequal state power relations and disregard for cultural differences, have often
caused the international system’s universality claims to ring hollow. This is not to say that the efforts of
established human rights institutions are entirely futile. The pressing question is more one that seeks an
explanation for the continued Third World resistance to established international human rights norms
deemed universally applicable by what appears to be a relatively small but powerful section of the
international community, the hegemonic ‘West.’
My paper argues that international human rights institutions operate through a legal framework marked by
imperial tendencies that have survived from the ‘age of Empire’ and that have harmful impacts on the
development of conflicts in the Third World. By ‘imperial’ tendencies, I mean the subjugation of the Third
World at the hands of the rich, powerful and imposing Western world. This marginalisation of the Third
World can be understood through the deconstruction of the hegemonic, hierarchical and anti-pluralist
tendencies of international law, a task that has been interestingly undertaken by scholars of the Third
World Approach to International Law (TWAIL) framework. I illustrate the mechanics of this unequal
relationship through a study of how the ICC has been approaching the situation in northern Uganda.
The International Criminal Court’s (ICC) involvement has brought to the fore the important question of
whose version of justice is to be enforced – the ICC’s or Uganda’s? Questions of peace versus justice
emerge as many in the Acholi community – most affected by the country’s 20 year brutal civil war –
continue to voice their preference for mato oput, an elaborate traditional ceremony in which oaths of
remorse and forgiveness are exchanged between perpetrators and victims in order to achieve
reconciliation.
How do international legal institutions account for such local forms of justice? The ‘culture of
accountability’ that human rights institutions insist upon is not the only remedy for a ‘culture of impunity’;
Statement by the head of the Church of Uganda’s Kitgum diocese, Bishop Benjamin Ojwang, in reference to the international
arrest warrants targeting the LRA and its leader, Joseph Kony. London Sunday Telegraph, “Ugandans ready to forgive 20 years'
brutality, Mike Pflanz in Kitgum (22 August 2006),
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/08/21/wuganda21.xml accessed 15 February 2007.
2 See, for instance, Antony Anghie ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy and the
Mandate System of the League of Nations’ 34 NYU Journal of International Law and Politics (2002); Antony Anghie ‘The War
on Terror and Iraq in Historical Perspective’ 43 Osgoode Hall Law Journal (2005); Ann Orford, Reading Humanitarian
Intervention. Human Rights and the Use of Force in International Law (2003).
1
Noha Aboueldahab
School of Oriental & African Studies, University of London
MA International & Comparative Legal Studies
the Uganda case illustrates that a culture of forgiveness and reconciliation could be healthier for a society
aggrieved by a two-decade long war.
Since the ICC issued the international arrest warrants targeting the Lord’s Resistance Army (LRA, a
northern Ugandan rebel group), a number of concerns have been raised, in particular by civil society
groups in northern Uganda. These include the “disjuncture between international conceptions of justice
and local community traditions, values, and notions of justice.” 3 There are also fears that the ICC
investigations and arrest warrants targeting the LRA while the conflict is still ongoing have significantly
stalled peace efforts between the government of Uganda and the LRA. 4
While in principle the ICC is not meant to be a political body, it is inevitably finding itself caught in the
political wrangling inside Uganda, not least because of the LRA’s refusal to engage in peace talks unless
the arrest warrants are withdrawn. The political context of Ugandan President Museveni’s referral of the
situation in northern Uganda to the Court, along with his subsequent wavering attitude towards the
Court’s involvement, further diminishes the strength of the ICC’s role in bringing the LRA commanders to
stand trial at The Hague.
With 70% of northern Ugandans preferring conditional amnesty for the LRA commanders,5 how can the
ICC approach this situation without appearing to be imperialist and insensitive to local traditional dispute
resolution mechanisms? For the ICC to insist on upholding its arrest warrants despite efforts for internal
peace talks between the LRA and the Ugandan government, the Court’s practices could reasonably be
deemed anti-pluralist. This would be in the sense that the Court does not account for culture-specific
‘human rights’ norms that conflict with those established by the ‘international community,’ despite its
assertions that it is sensitive to those issues. 6 The issue at hand here is that international criminal law
does not adequately address issues of local justice and reconciliation practices. As a result, international
institutions appear to have neo-colonial and anti-pluralist tendencies when countries, such as Uganda,
are pressed to follow a certain procedure for justice that conflicts with the justice procedures they would
have otherwise pursued without international involvement.
Should we ‘go by the book’ and refuse to tolerate amnesty for the most serious crimes of international
concern just because the Rome Statute says so? Or should we think outside this institutionalism and
instead pay more attention to the social realities on the ground? The international human rights discourse
lacks analytical rigor when it comes to the Third World. It stresses the importance of upholding
accountability ‘at all costs,’ of fighting terrorism ‘at all costs’, arguing that there can be no justification for
the alternative. The point, though, is not about justification of impunity.
Instead, TWAIL scholars call for a more vigilant inquiry into the nature of human rights norms in the Third
World, which would help explain the corresponding methods of achieving justice in those communities
that have little in common with the international legal order that has been and continues to be largely
orchestrated by the more powerful West. It appears, then, that international law approaches the Third
World through a neo-colonial doctrine that smacks of ‘civilising mission’ objectives, thereby revealing the
‘international community’s’ ode to equality as little more than just that.
Refugee Law Project, “Position paper on the announcement of formal investigations of the Lord’s Resistance Army by the
Chief Prosecutor of the International Criminal Court and its implications on the search for peaceful solutions to the war in
northern Uganda,” Faculty of Law, Makerere University (28 July 2004), p.1. http://www.refugeelawproject.org accessed 15
February 2007.
4 The Monitor, “Uganda: Rights Activists Praise Government Over Peace Talks,” Kampala (26 July 2006). Article provided by
Esti Tambay, Coalition for the International Criminal Court (CICC), New York. The Monitor is an independently owned
newspaper in Uganda.
5 ICTJ in the News, “70% in north want conditional amnesty for Kony, says study,” The Monitor (Uganda), (3 August 2005),
http://www.ictj.org/en/news/coverage/article/323.html accessed 15 February 2007.
6 For instance, the ICC Chief Prosecutor, Luis Moreno Ocampo, stated: “The Uganda example shows that we can respect the
negotiations of the local people to achieve peace while continue with our case.” UN OCHA, IRIN, “Interview with Chief
3
Prosecutor Moreno Ocampo,” (July 2006),
http://www.irinnews.org/webspecials/RightsAndReconciliation/54202.asp accessed 15 February 2007.
Noha Aboueldahab
School of Oriental & African Studies, University of London
MA International & Comparative Legal Studies