Self Publication: Kony, Khartoum and the ICC

Below is a piece I wrote on the arrest warrants recently issued by International Criminal Court for Joseph Kony and the leadership of the Lord's Resistance Army and the conflict it creates for the regime in Khatroum.

I submitted it to several different magazines, but it was roundly rejected, so I am posting it here

It took nearly two years from the time Ugandan President Yoweri Museveni referred the crimes of the Lord’s Resistance Army (LRA) to the International Criminal Court (ICC) for arrest warrants to be issued for the LRA’s leader, Joseph Kony and four of his top lieutenants. In that time, Kony’s force continued to terrorize the people of Northern Uganda.

For nearly two decades, the LRA, a rag-tag army made up mostly of kidnapped children, has developed a reputation for carrying out ruthless and seemingly arbitrary attacks against Uganda’s Acholi population; slicing off lips, noses, and ears, burning and looting villages, raping women, and wantonly torturing and killing civilians. Fear of LRA attacks has displaced nearly two million people across the region and has turned ten of thousands of children into “night commuters,” forcing them to walk several miles from their villages into towns every night seeking protection from LRA raids and abductions.

Kony’s army is not so much a political movement as it is a ruthless criminal organization, committed to terrorizing, killing and destroying the lives of those unfortunate enough to inhabit the LRA’s hunting grounds. Though Kony reportedly believes he has been chosen by God to overthrow President Museveni and establish a government based on the Ten Commandments, the LRA has yet to explain its goals or put forth any sort of political agenda.

The arrest warrants issued for Kony and the others are the first handed down by the nascent ICC, which only came into existence three years ago, over much opposition from the United States. Not surprisingly, the potential prosecution of Kony was hailed by human rights organization, perhaps less for the impact it will have on the violence in Uganda than out of hope that the ICC is beginning to establish itself as a legitimate venue for trying those accused of committing war crimes, crimes against humanity and genocide.

If the ICC is to become a viable instrument of international justice, it is imperative that Joseph Kony’s be prosecuted and convicted for his crimes. And if Kony is indeed going to be brought to The Hague, it is going to require significant coordination, cooperation and luck. But most of all, it is first going to require that Kony be captured.

For years, Kony has eluded capture by the Ugandan People’s Defense Force (UPDF), which has itself recently been accused by Human Rights Watch of committing war crimes against civilians in its pursuit of the LRA. Kony is currently believed to be hiding in Southern Sudan, just beyond the so-called “red line”; a designated border sixty miles inside Sudan within which Khartoum has allowed the UPDF to operate in pursuit of Kony and the LRA. While Kony remains in hiding, some of his top lieutenants and an estimated 300 soldiers recently crossed from Sudan into the Democratic Republic of Congo (DRC), fleeing the UPDF. Uganda immediately called upon the Congolese government in Kinshasa to capture and disarm the LRA rebels operating in its territory and made clear its willingness to invade the DRC to do the job itself, should Kinshasa refuse, and even began amassing troops on the border in preparation. Congo responded by sending two thousand troops to the region, partly as an attempt to push the LRA out of the country, but also to send a message to Kampala that any invasion from Uganda would be met with force.

There are conflicting reports about whether these LRA soldiers have now crossed back into Sudan. If they have, it is far more likely that they will eventually be tracked down by the UPDF, especially considering that Sudan has lifted the 60-mile “red line” limit for one month and granted Uganda the freedom to pursue the LRA wherever they might be found. Khartoum has even promised to help the UPDF track down and capture the remnants of the LRA still operating in Sudan.

While it looks as if the noose might be tightening around Kony, it is difficult to determine just how serious Khartoum is about eliminating the LRA. For years, Kony’s army has received support from the government of Sudan and been allowed to operate freely in the south, receiving weapons and uniforms and maintaining camps from which it launched raids into Uganda and to which it returned with hundreds of abducted children. Sudan’s support for the LRA was matched by Uganda’s support for the SPLA rebel movement in Southern Sudan; the two countries, in essence, waging a war by proxy across their borders.

In 2002, Sudan agreed to allow Uganda to target the LRA within the “red line” border, but continued to supply it with heavy arms and ammunition. Now that Khartoum has finally made peace with the SPLA, its support for the LRA seems to have diminished, but whether this means Sudan will actually help eliminate it remains to be seen.

There are several reasons to doubt Khartoum’s commitment, among them the fact that it is highly unlikely that Sudan is truly willing to grant the UPDF, a foreign army, unfettered access to its territory. But more importantly, several high level officials in the Sudanese regime are currently being investigated by the same International Criminal Court that has issued the arrest warrants for Kony.

The investigation of Sudan stems from crimes committed over the last two years in the western region of Darfur, where government bombs and Janjaweed militias have killed an estimated 400,000 people and displaced several million more. After much wrangling in the UN Security Council, the case was referred to the ICC for investigation and possible prosecution. Shortly thereafter, Secretary General Kofi Annan delivered to the ICC prosecutor a sealed list containing the names of 51 individuals believed to be responsible for crimes committed in Darfur; high-level Sudanese officials undoubtedly among them.

The ICC referral was met with contempt and anger by the Sudanese leadership and led to massive, government-orchestrated demonstrations in the streets of Khartoum. Top-level Sudanese officials have repeatedly stated that they do not recognize the legitimacy or jurisdiction of the ICC and will not hand over any Sudanese national for prosecution by the court.

Since Sudan is not a party to the ICC, it is not legally obligated to comply with the requirement that, upon receiving “a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question” as dictated by Article 59 of the ICC statute. While Sudan has received just such a “request” regarding Kony and his lieutenants, it has not yet received a similar request from the court’s prosecutor regarding its own leaders, though such warrants will probably be issued in the future. As such, it is not within Khartoum’s self-interest to comply with the ICC warrant for Kony, as doing so will only legitimize the ICC’s reach into Sudan and set a precedent regarding Khartoum’s compliance.

So why would Khartoum agree to cooperate in capturing Kony? Experts on Sudan believe such a pledge is, in all likelihood, a bluff. Khartoum may realize that the LRA’s days are numbered and that supporting it no longer serves its interests. Sudan’s leaders are, in all probability, seeking to use Kony’s capture as an opportunity to win accolades from the international community and perhaps quite the calls that they be held accountable for their own crimes in Darfur. In the words of noted Sudan expert Eric Reeves, if Khartoum is now committed to capturing Kony, “it's simple expediency.”

If Sudan has indeed turned on the LRA and is now dedicated to its destruction, it does not change the fact that it had, for years, supported this murderous movement. Nor does it mitigate in any way the genocide it has committed, and is still committing, in Darfur.

Khartoum is exceedingly clever at bluffing, stalling and stonewalling the international community, as evidenced by the fact that it has managed to keep the UN at bay over Darfur for more than two years. And just as Khartoum has not lived up to its pledges to protect the people of Darfur, seek peace with the rebels, or disarm its proxy militias, it is unlikely that it will live up to its pledge to capture Joseph Kony or dismantle the LRA.

The arrest, prosecution, and conviction of Kony and his top lieutenants will go a long way toward ending twenty years of savage violence in Uganda, as well as establishing the practical legitimacy of the ICC. Ensuring the former may be of little interest to Khartoum, but preventing the latter is undeniably a top priority.

In the end, the fate of the ICC’s first case may very well depend on the cooperation of the men who will be put on trial in its second.