III. Marginalization

Requests for warrants for high-ranking leaders are often opposed by those who believe that this will result in more violence and a prolonged conflict. They argue that leaders facing the possibility of trial and likely conviction have little incentive to lay down their arms. Instead, they contend, these leaders will cling all the more tenaciously to power. The prospect of arrest may even spur them to continue to fight a war in an effort to maintain their position.[48] Others express the fear that delicate peace negotiations will be upset by insistence on accountability.

However, in practice, the anticipated negative consequences of pressing for accountability often do not come to pass. For example, on May 27, 1999, the International Criminal Tribunal for the former Yugoslavia announced its most significant indictment: that of Yugoslav President Slobodan Milosevic and four other top officials for “murder, persecution, and deportation in Kosovo” from January 1 through May 1999.[49] The indictment was announced in the midst of the armed conflict between Serbia and NATO forces over Kosovo. The conventional wisdom at the time was that the indictment would make the situation in Kosovo worse and would likely undercut the prospect of any compromise by Milosevic. The Russian Foreign Ministry said the war crimes indictment “will add to the obstacles to a Yugoslav settlement” and “severely undermine” the authority of the negotiators. Russia’s envoy to the Balkans, Viktor S. Chernomyrdin, denounced the warrant as a “political show” and “incomprehensible and unpleasant.”[50] Some in the US government were reportedly unhappy about the timing of the indictment and wanted to hold off as a bargaining chip in negotiations with Milosevic.[51] Milosevic himself was contemptuous of the indictment and vowed that he would never face trial in The Hague.

Yet less than a week later, on June 3, negotiators announced that Milosevic had accepted the terms of an international peace plan for Kosovo.[52] Despite their strong opposition at the time, when asked about the indictment and its effect on the talks, the Russian and Finnish intermediaries later admitted that the indictment did not affect negotiations and was never on the agenda.[53] Because Milosevic did not travel much and felt secure at home, he did not fear ending up in The Hague.[54] But Milosevic lost the presidential contest in the September 24, 2000, federal election. He attempted to force a second round of the election but the opposition responded with a series of mass rallies. On October 7, after opposition supporters stormed the parliament, Milosevic conceded electoral defeat.[55] Six months later he was arrested, and on June 28, 2001, the government of Serbia transferred Milosevic to The Hague.

The International Criminal Court, which has jurisdiction over ongoing conflicts, has already created considerable controversy over whether the prospect of prosecution stands in the way of peace. The issue is likely to arise more and more frequently. Yet limited experience shows that the assumptions made about its effect are not necessarily correct, and that the potential value of justice has generally been underestimated. Rather than scuttle peace talks or undermine a transition to democracy, an indictment may facilitate them by altering the power dynamics.[56] Indicting a leader for atrocities makes it harder for him to deny that the crimes have occurred. It may also make it more difficult for the leader to travel or obtain international or national support—his associates may seek to distance themselves from him in an effort to avoid a similar fate. Criminal indictment of abusive leaders and the resulting stigmatization can, therefore, lead to marginalizing a suspected war criminal and may ultimately facilitate peace and stability.

Human Rights Watch has documented the following examples where indictments have helped, rather than hindered, peace processes.

A. Charles Taylor

Elected president of Liberia in 1997 after the ouster of Samuel Doe, Charles Taylor gained international notoriety for the brutal abuse of civilians perpetrated by his forces in Liberia and for his use of child soldiers organized in “Small Boy Units.” Taylor’s logistical and military support for a rebel group in neighboring Sierra Leone, the Revolutionary United Front (RUF), contributed to the death, rape, and mutilation of thousands of Sierra Leonean civilians, and led to United Nations sanctions and embargoes on his regime.[57] Taylor’s forces were also implicated in conflicts in Guinea and Côte d’Ivoire.

On June 4, 2003, the prosecutor of the Special Court for Sierra Leone “unsealed” an indictment against Charles Taylor as one of those “bearing the greatest responsibility” for war crimes (including murder and hostage-taking); crimes against humanity (rape, murder, extermination, sexual slavery); and other serious violations of international humanitarian law (use of child soldiers) committed in Sierra Leone.[58] The indictment charged that Taylor actively financed and trained the RUF before and during Sierra Leone’s 10-year civil war. It also alleged that Taylor assisted and encouraged members of the RUF/Armed Forces Revolutionary Council rebel alliance, who were accused of horrific crimes.[59]

The unsealing of the indictment against Taylor caused a great deal of consternation at the United Nations Secretariat and elsewhere.[60] The cause of concern was triggered in part by the timing of the announcement, as it coincided with the opening day of Liberian peace talks convened in Accra, Ghana.[61] Peace, which had mostly been elusive in Liberia since 1989,[62] was a priority, and many felt that the indictment would undermine chances at reaching a negotiated settlement.[63] The African presidents who were meeting in Accra to work on the peace process felt ambushed by the news and betrayed, as they had not been informed of the indictment earlier.[64] Ghanaian Foreign Minister Nana Akufo-Addo expressed his embarrassment and stated a belief held by many that the prosecutor’s action “in unsealing the indictment at this particular moment has not been helpful to the peace process.”[65] Observers thought that the indictment would undermine diplomatic efforts to achieve peace because Taylor would be less likely to relinquish his position as president.[66] Taylor himself initially vowed the peace process would fail unless the indictment was lifted.[67] The chargé d’affaires in Liberia’s Washington DC embassy called for the prosecutor to “be arrested and put on trial.”[68] Many in Monrovia feared that the unsealing of the indictment risked further violence by both the rebels and the supporters of Taylor intent on revenge.

In retrospect, however, it is clear that the unsealing of Taylor’s indictment was a key factor in bringing peace to Liberia. Taylor’s government had committed systematic abuses of civil and political rights. There was little reason to hope that a negotiated settlement that left him in office would have resulted in an improved situation on the ground.[69]

The International Center for Transitional Justice’s (ICTJ) study of the 2003 peace negotiations concluded that the reason the 2003 agreement ultimately succeeded while over a dozen previous agreements had failed was because Taylor offered to vacate the presidency and not take part in transitional elections. That offer resulted directly from his indictment by the Special Court for Sierra Leone.[70] The report noted almost universal agreement among those present at the talks—even those who had been skeptical at the time—that the unsealing of the indictment had a largely positive effect on the talks.[71] It de-legitimized Taylor both domestically and internationally: Liberians expressed their concern to Human Rights Watch researchers that having a president who could not travel would undermine Liberia’s international standing and would make it difficult to get donor monies,[72] and it also affected the morale of his troops (already low because they had not been paid in months).[73] That de-legitimization helped make it clear to Taylor that he would have to leave office.

The results were all the more significant because initial expectations for the peace talks had been low. The talks came about after rebel groups made significant inroads toward taking the Liberian capital Monrovia in 2003.[74] Civil society leaders, anxious to avoid another violent overthrow of the government, successfully pressed for peace talks. The ICTJ report found that most participants arrived at the talks in Ghana believing that Taylor would not leave the presidency. However, that was the one issue over which the Liberian rebel factions would not compromise.[75] The unsealing of the indictment changed that dynamic. Shortly after the warrant was unsealed Taylor said, “I will strongly consider a process of transition that will not include me. If President Taylor removes himself for the Liberians, will that bring peace? If so, I will remove myself.”[76] According to a participant, the parties were eventually able to negotiate a critical ceasefire agreement because it included a clause indicating that Taylor would not be a part of the transitional government. It took two weeks to negotiate that clause but it could not have been done without the public unsealing of the indictment.[77] Taylor was not present for the negotiations because he had returned to Liberia on a Ghanaian government plane just hours after the indictment was unsealed. He ultimately stepped down from office and left Liberia on August 11, 2003, after his military options ran out. The offer of safe haven in Nigeria was also undoubtedly a factor contributing to his decision to leave.[78]

The ICTJ study further notes that the expected retaliatory violence in Liberia resulting from the indictment never occurred (Taylor’s supporters had threatened to attack Ghanaians in Liberia,[79] and more general revenge attacks were also believed imminent). Although the atmosphere in Monrovia was tense in the hours following the news,[80] the situation remained relatively calm. The US embassy in Monrovia responded to threats against US citizens and the embassy by making it clear to senior government and military officials and to rebels that they would be held responsible for any breakdown in law and order. An influential Liberian general made a statement on the radio urging calm.[81]

The rebels attacked Monrovia shortly after the indictment was announced, but the attack had been planned beforehand. According to the head of the responsible rebel group, the offensive, which resulted in hundreds of civilian casualties, would have occurred regardless—only if Taylor had been arrested instead of returned to Liberia would the attack have been canceled.[82] Thus, there is a possibility that rather than prolong the conflict, a more active pursuit of justice, notably the immediate arrest and transfer of Taylor to the Special Court for Sierra Leone, would have shortened the conflict by two months.[83]

Taylor’s eventual detention in Nigeria in March 2006 and subsequent transfer to the Special Court was a relief to many who were concerned that he might continue to play a destabilizing role in Liberia and in the region.[84] Indeed, there were indications that while in Nigeria he continued to destabilize Liberia: the UN secretary-general reported to the Security Council that Taylor influenced the elections in Liberia from exile.[85] Despite warnings from Taylor’s spiritual advisor that “there will be tremendous destabilization in Liberia if the extradition takes place,” Taylor’s transfer to The Hague did not provoke the anticipated “violent unrest.”[86] His trial before the Special Court for Sierra Leone in The Hague began in June 2007.

Although other important factors worked with the indictment to bring about peace in Liberia—including the impending rebel offensive threatening the capital, the involvement of the international community, and the blocking by the peacekeeping force the Economic Community of West African States Monitoring Group (ECOMOG) of arms’ delivery to Taylor—the Taylor case shows that an indictment may strengthen peace processes and that the feared consequences resulting from indicting a sitting head of state do not always come to pass.

B. Radovan Karadzic

Rejecting Bosnia’s moves toward independence as Yugoslavia broke apart, from April 1992 onwards Bosnian Serbs began seizing control of large areas in Bosnia and Herzegovina, “ethnically cleansing” non-Serbs and subjecting them to systematic violence and persecution. Non-Serbs also committed violations of international humanitarian law. The conflict, which lasted from 1992 to 1995, was characterized by grave violations of human rights such as mass killings, rapes, widespread destruction, and displacement of populations.[87] These violations, due to their brutality and scale and because they were taking place in Europe, drew the attention of the international community. Following intensified NATO air strikes on Bosnian Serb forces in August 1995, the parties to the conflict agreed to attend peace negotiations outside of Dayton, Ohio, in the United States.

The negotiations opened in early November 1995, less than four months after the worst atrocity in Europe since the Second World War: the massacre of over 7,000 men and boys following the fall of the Bosnian Muslim enclave of Srebrenica on July 11, 1995. Eyewitnesses interviewed by Human Rights Watch at the time described their horror as the victims were lined up in front of mass graves and shot.[88] Women, children, and elderly persons deported from the area were also terrorized.

On July 24, 1995, less than two weeks after the fall of Srebrenica and in the midst of the conflict, the International Criminal Tribunal for the former Yugoslavia confirmed indictments against Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. The charges included genocide, crimes against humanity, and war crimes for acts alleged to have occurred between 1992 and 1995 in several locations across Bosnia, including Sarajevo. At the time of this indictment, Western diplomats were negotiating with Karadzic and Mladic (two days before, a British, French, and US delegation had personally met with Mladic in Belgrade).[89] A second indictment against Karadzic and Mladic was confirmed on November 16, 1995, during the Dayton peace negotiations. It charged both men with genocide, crimes against humanity, and war crimes based on the mass execution of civilians after the fall of Srebrenica.

At the time negotiations in Dayton began, a number of politicians and political commentators suggested that the ICTY’s work was getting in the way of peace.[90] Indeed, the former ICTY Chief Prosecutor Richard Goldstone said that after he indicted Karadzic and Mladic, the UN secretary-general was furious, castigating the prosecutor in a meeting shortly afterwards and asking why he had not been consulted.[91]

However, the indictment of Karadzic ultimately facilitated the Dayton Peace Accords. If Karadzic, the Bosnian Serbs’ political leader, had not been indicted, he would have likely attended the peace conference. Because those meetings began only two months after the massacre at Srebrenica, Bosnian Muslim and Croat leaders would not have entered the same room or have sat at the same table with Karadzic.[92] A US State Department official said that the tribunal “accidentally served a political purpose: it isolated Karadzic and left us with Slobo [Slobodan Milosevic].”[93] In his memoirs, the US negotiator Richard Holbrooke said that he made it very clear to Milosevic that Mladic and Karadzic could not participate in a peace conference. When Milosevic said that the attendance of the indicted men was necessary for peace, Holbrooke offered to arrest them personally if they set foot in the United States.[94]

Despite rumors of amnesties, the Dayton peace talks were not negatively affected by the ICTY indictments against Karadzic and Mladic. As one senior US official put it, “The war crimes tribunal isn’t going to mess with our peace talks; we’re not going to mess with the war crimes tribunal.”[95] A negotiator at Dayton confirmed that the activities of the ICTY did not hinder negotiators seeking the peace agreement, but in fact helped to cement it. He pointed out that “the Dayton Framework Agreement, in its Bosnian constitution, implicitly commended the work of the Tribunal by stipulating that ‘no person who is serving a sentence imposed by the ICTY and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear may stand as a candidate or hold any appointed, elective or other public office in the territory of Bosnia and Herzegovina.’”[96] This provision helped speed Karadzic’s removal from his position in July 1996. Nor did the ICTY’s activities affect Milosevic’s role in negotiating the agreement: he accepted the Dayton Peace Accords ending the Bosnian conflict without obtaining an amnesty, even though he too was an obvious ICTY target.[97] He (and Karadzic, who signed the agreement) also agreed to the abovementioned clause despite some early misgivings.[98]

Following a hearing at the ICTY in which the full trial chamber examined the indictment and supporting evidence in public, on July 11, 1996, an international arrest warrant was issued for Karadzic and Mladic.[99] In part because of the Dayton Peace Accords’ prohibition on suspected war criminals serving in office, eight days later Karadzic officially stepped down as president of the Republika Srpska. Mladic was dismissed as head of the armed forces in November 1996.[100] The removal of both Karadzic and Mladic resulted from their marginalization and their pariah status following their indictment.[101] Their having to lay low to avoid arrest ultimately contributed to resolving the conflict and to creating a more stable situation in Bosnia.

An earlier willingness by NATO and governments in the region to apprehend the suspects would have further helped with implementation of the Dayton Peace Accords (see Chapter IV.C). Karadzic was not handed over by Serbia until 2008, more than a decade after the end of the war. Mladic remains at large.

C. Lord’s Resistance Army

In Uganda as well, many commentators feared that justice and the involvement of the International Criminal Court would prove an obstacle to peace. Although (unlike in the other cases) leaders of the Lord’s Resistance Army have not been apprehended and the ultimate effect of the warrants is unknown, the warrants did not have any immediate devastating impact. The ICC’s involvement may even have yielded unexpected short-term positive benefits including encouraging the parties to engage in peace talks, prompting some LRA defections, and raising the political costs to those supporting the LRA.

Driven by regional inequality, the conflict in northern Uganda to depose President Yoweri Museveni began immediately after he took power by force in 1986. The rebel LRA, rooted in northern Uganda, struck fear in the civilian population by carrying out mutilations, killings, and forced recruitment of child soldiers mostly from their own Acholi people. Ugandan soldiers of the Ugandan People’s Defense Forces (UPDF) committed numerous human rights violations during the war as well, including willful killing, torture, and rape of civilians, and the government forcibly displaced the civilian population of Acholi-land into squalid camps, arguing that the move was needed to protect the population from the LRA and to cut off any civilian assistance to the LRA. Human Rights Watch has documented the numerous grave abuses by both sides in this long conflict.[102]

Efforts to end the conflict decisively failed, and in 2000, following lobbying efforts by “elders and religious leaders from the [worst affected] Acholi region[,]”[103] the Ugandan Parliament passed a blanket amnesty for rebels who renounced violence and surrendered to the government. The chairman of the Amnesty Commission, Justice Peter Onega, described the passage of the Amnesty Act as “a deliberate effort to try and find a peaceful way of ending the conflicts and rebellions the country has had.”[104] Though the population had suffered enormously at the hands of the LRA, many supported a full amnesty out of desperation to put an end to the conflict.[105] Although a significant number of people benefitted from the amnesty, violence against civilians continued to worsen in the years following the Amnesty Act, particularly after each effort by the Ugandan armed forces to wipe out the LRA.[106]

In December 2003 Museveni tried a new tack. He invited the International Criminal Court to investigate the LRA. In July 2005 the court issued sealed warrants for the arrest of the top five LRA leaders—Joseph Kony (head of the LRA), Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen—for crimes including widespread or systematic murder, sexual enslavement, rape, and war crimes such as intentionally attacking civilians and abducting and enlisting children under the age of 15.[107]

The announcement of the referral to the ICC in January 2004 and the ICC’s unsealing of warrants in October 2005 were met with a great deal of criticism. Numerous local nongovernmental organizations (NGO), international humanitarian organizations, academics, mediators, and others argued that ICC warrants would destroy the LRA’s will to negotiate since they would ultimately end up on trial.[108] From March 16 to 18, 2005, Acholi leaders met with the ICC prosecutor in The Hague in an effort to dissuade him from requesting arrest warrants.[109] Later, Acholi leaders said that the issuing of “international arrest warrants would practically close once and for all the path to peaceful negotiation as a means to end this long war, crushing whatever little progress has been made during these years.”[110] The Roman Catholic Archbishop in northern Uganda, John Baptist Odama, saw the ICC’s decision to issue indictments against the LRA leadership as “the last nail in the coffin” for efforts to achieve dialogue.[111] One-time chief mediator between the government and the rebels Betty Bigombe responded to the news of the warrants in October 2005 by saying, “There is now no hope of getting them to surrender. I have told the court that they have rushed too much.”[112] Others feared defenseless, displaced northern Ugandans would become prey to further LRA attacks.[113] Justice Onega said that the ICC’s decision could encourage more atrocities as the LRA leadership could act as “desperately as a wounded buffalo.”[114] He was also among those who argued that the ICC’s involvement was inconsistent with the 2000 Amnesty Act and Acholi principles of traditional justice.[115] At the very least, many felt that the timing was “ill-conceived.”[116] (For our part, Human Rights Watch expressed frustration that the prosecutor had not also made public investigations into crimes by the UPDF.[117])

Two-and-a-half years after the referral, following changed circumstances in southern Sudan and an LRA attack that killed eight UN peacekeepers in the Democratic Republic of Congo, it has turned out that the warrants have not proved to be the detriment that many had feared. Rather, the warrants have contributed to a number of fairly positive events, including isolating the LRA from some of its support base, bringing international attention to the plight of the northern Ugandans, encouraging the most promising talks since the start of the 20-year conflict, and ensuring that accountability formed a major part of the agenda for those talks.

Some analysts argue that Uganda’s referral contributed to the LRA’s isolation.[118] Since the mid-1990s the LRA’s only state supporter has been the Sudanese government in Khartoum, reportedly in retaliation for the Ugandan government’s support of the rebel Sudan People’s Liberation Movement/Army (SPLM/A).[119] Not long after the referral was announced, Sudan agreed to a protocol allowing Ugandan armed forces to attack LRA camps in southern Sudan.[120] This access weakened the LRA’s military capability. Following the signing of the Comprehensive Peace Agreement in January 2005, which ended hostilities between the Khartoum government and the SPLA, Sudanese armed forces withdrew from Southern Sudan, further weakening the LRA by depriving it of bases and support that it had enjoyed for years.[121] The International Crisis Group (ICG) notes that the ICC’s involvement raised the stakes for Khartoum as it could fall within the ICC’s criminal investigation in Uganda for supporting the LRA.[122] In October 2005 the government of Sudan signed a memorandum of understanding with the court agreeing to cooperate with arrest warrants issued against LRA commanders.[123] Though Sudan continued to support the LRA to some degree, it did so in a much more surreptitious manner.[124] By severing most of its ties, Sudan significantly weakened the group, forcing it into “survival mode” at least temporarily.[125]

The increased isolation of the LRA may have also contributed to significant defections, including by two members of Kony’s negotiating team.[126] Father Carlos Rodriguez, a Spanish missionary who was based in northern Uganda for many years, stated,

Between April and September [2004] 500 or so combatants have come out of the bush with their guns including senior officers. So the ICC might not be so discouraging as we thought. Also those who have come out of the bush have told us that the Sudan Government has not been giving them anything since January this year. So the ICC may have had an influence on Sudan. The LRA will only reduce violence out of pressure and Sudan has changed its attitude because of the ICC. They are concerned about being prosecuted. ... Now that Sudan is not involved, it forces the LRA to talk about peace.”[127]

However, many of these defectors were given amnesty under the Amnesty Act of 2000, which had not been used frequently up to that point.[128] (For discussion as to why there should be no amnesty for the most serious crimes, see Chapter II.B; for analysis of problematic amnesties in other African conflicts, see Chapter V.)

The issuing of arrest warrants has been deemed one of a number of factors (including the US government decision to list the LRA as a terrorist group) that helped push the LRA and the Ugandan government to the negotiating table in Juba, Sudan, in mid-2006. Despite rebel leaders’ claims to the contrary,[129] people close to the peace process believe that LRA leaders decided to enter talks in part as a result of the ICC warrants.[130] The International Crisis Group’s investigation into the peace talks led it to conclude that the threat of prosecution, and the issuance of warrants in particular, provided pivotal pressure propelling the rebels to peace talks. In speaking with commanders in the bush or their delegates at the negotiations, they found that “‘ICC’ is usually the first and last word out of their mouths.”[131]

Another benefit of the warrants that observers discerned was that the increased attention to the conflict resulting from the ICC’s involvement galvanized international engagement in the peace processes for what has been described as “the biggest forgotten, neglected humanitarian emergency in the world today.”[132] Financial and political support from the international community for both humanitarian needs in northern Uganda and for the peace talks has been crucial.[133]

In addition, the prospect of prosecution by the ICC helped insert the issue of accountability into the Juba peace negotiations and resulted in an important framework for holding all parties accountable for their actions. In February 2008 the parties agreed to pursue domestic trials of the ICC cases in Uganda via a special division of the Ugandan High Court created to try war crimes committed during the conflict.[134] This was an approach that, at least in principle, could satisfy LRA demands to avoid trial in The Hague while meeting requirements under the ICC statute.[135] The parties concluded negotiations on all agenda items in March 2008, but Kony failed to appear to sign the final agreement. The conflict remains unresolved, and although violence has subsided in northern Uganda, civilians in the DRC (where the LRA is now based) continue to be victimized by the insurgents.[136]