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The recent decision by Uganda's President Museveni's to turn to the International Criminal Court (ICC) for investigations of atrocities by the Lord's Resistance Army has generated a lot of excitement in international human rights circles. Unfortunately, as the February 21 massacre by Joseph Kony's rebels has demonstrated, international prosecution may not be the inspired choice required to stop the carnage.

Judicialisation of conflict is what states do as a substitute for effective action. As a strategic choice for ending conflict, it is also a guaranteed failure. It proved the wrong prescription to the 1990s conflicts in the former Yugoslavia and Rwanda. In 1993, the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY) ostensibly to stop the violence, but in reality to avoid doing anything about the conflict. Every single diplomat at the Security Council knew that what was required was a military solution or negotiated end to the inter-ethnic slaughter.

Rwanda, even more dramatically, demonstrated the timidity of the world in stopping conflicts. The UN had peace-keeping troops on the ground in Rwanda but when blood started to flow, the world decided to cut and run. General Romeo Dallaire, the commander of UN peacekeeping forces in Rwanda then, has stated that he could have stopped the genocide with 5,000 good troops and a muscular UN mandate. Instead, he was ordered to leave. The creation of the International Criminal Tribunal for Rwanda (ICTR) was partly a gesture of contrition by states that had retreated to the safety of their borders and abandoned Rwanda to its fate. In both Rwanda and the former Yugoslavia, resort to a judicial option was a way of appearing to do something without doing anything.

The lessons of these conflicts for Uganda are unfortunate but clear. The relevance of international law during conflict rests on the training, intentions and gun power of the fighters and their command. The individuals responsible for the February 21 massacres have as much knowledge of the Geneva Conventions as they do of brain surgery. President Museveni's invitation to the International Criminal Court therefore, while an important affirmation of individual criminal accountability for grave violations, it skirts the more immediate concern of stopping the atrocities.

The decision is flawed in both timing and effectiveness. Its timing elevates a downstream process of prosecutions to the upstream stage of regulation and cessation of conflict. Prosecutions are usually an after-the-conflict matter. They come after the fog of war has cleared. Commencing prosecution of 'enemies' during conflict imperils truce negotiations and is a disincentive to those who may be willing to surrender. It is why the International Criminal Tribunal for the former Yugoslavia refrained from indicting former Yugoslav leader Slobodan Milosevic before and during the Dayton Peace Process. In any event, it is one thing to draw a list of the rebels alleged to have committed atrocities, but a different reality to attempt to collect evidence amidst the war.

The 18-year-old war in northern Uganda has now turned into the classic African 'stale-mate wars', with neither side able to deliver a decisive victory. What Uganda needs at the moment is a strategy of militarily defeating the rebels or negotiating a ceasefire. Given Kony's modus operandi, a negotiated peace settlement may be elusive in the short run.

If the only viable option is military, President Museveni may have to collectivize the security dilemma facing Uganda. The trail of the military supplies to the Lord's Resistance Army needs to be examined to hold to sanction those complicit in the conflict. The African Union Protocol creating a Peace and Security Council has only recently come into effect. Part of its mandate is to stop the atrocities similar to those perpetrated by the Lord's Resistance Army. With the new African Union, African Court of Human Rights and the NEPAD mechanisms, African leaders have pledged to generate solutions to Africa's many problems. The African Union has vowed not to repeat the spectacular failures of its predecessor, the Organisation of African Unity (OAU). Uganda may be well advised to test this commitment by requesting for assistance in its war against the Kony rebels.

External assistance to Uganda is however bound to be complicated by the country's recent military entanglements in the Democratic Republic of Congo. The five reports by the UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo, have fingered the Ugandan military for its involvement in illegal exploitation of minerals in the DRC and escalation of the conflict in that country. The tense relations between Uganda and Rwanda following the clashes between their forces in the DRC complicates a regional approach to security.

For Kenya and Tanzania, the insecurity in Uganda is a threat to the anticipated economic recovery of economies already battered by terrorist attacks. It is these two countries, more than any other in the region that must work with Uganda for a solution to the Kony insurgency if an integrated East Africa is to become a reality. In the long term, East African security experts need to re-imagine borders as regional rather than national. Security solutions are however determined by the political policies and choices of leaders. An East African security mechanism is only possible in the context of consensus on values by East African leaders. Internally, the three East African countries are yet to clear their decks of key governance issues. Mobilizing national support for regional peace work in the absence of local security and vibrant structures of domestic accountability is an uphill task.

However, the victims of Kony's war in northern Uganda will not wait for democracy to flourish in East Africa or the International Criminal Court to conduct its investigations. They are not victims of a random robbery or murder. Kony's massacres are a full-blown insurgency devoid of any humanitarian pretensions. If amnesty is what it will take to save lives, it is a choice that Uganda may have to explore in spite of obvious moral qualms. A military victory is more likely to deliver judicial justice to Kony's victims. But it requires political will at different levels and possibly more than the Ugandan military to deliver.

* Recent Pambazuka News articles on Uganda:
- Confronting impunity through the ICC: Is Africa ready and waiting?

* Mutuma Ruteere is a Phd candidate in Political Science, University of Nebraska-Lincoln, USA and a researcher on human rights and humanitarian law.

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