IV. Background

The War in northern Uganda

The Lord's Resistance Army (LRA), a rebel group led by Joseph Kony, has been fighting the Ugandan government for more than 20 years. The conflict has gone through many episodes of varying intensity, some of which have seen serious human rights violations by government forces as well as the extreme violence of the LRA. In Uganda, control of civilians has been the battleground for both parties. The LRA has used abduction and violence to replenish its ranks, to loot, and to enforce compliance through terror. The Ugandan government has used displacement to cut the LRA off from the civilian population, thereby restricting their access to food and to intelligence.[2]

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).[3] In 1999 the Ugandan and Sudanese governments agreed to stop supporting rebel groups opposed to the other government. In October 2001, the US government placed the LRA on its list of terrorist organizations.[4] Sudanese government support for the LRA diminished significantly from 2002 onwards and appears to have ended when the SPLA became the dominant player in the South Sudanese government in 2005.

In March 2002, the Ugandan army, with Sudanese government consent, launched "Operation Iron Fist," a military campaign intended to destroy the LRA by attacking its southern Sudanese sanctuaries. Undeterred by the campaign, the LRA expanded the scale of its abductions, killings, and looting, including outside Acholi areas into other districts in northern Uganda, causing an upsurge in people fleeing their homes.[5] By 2005 approximately 1.67 million people were internally displaced across northern and eastern Uganda.[6] The increase in LRA attacks on civilians in reprisal for the military campaign showed a pattern that would be repeated several times in years to come, most disastrously with the Christmas massacres of 2008 documented in this report.

In the late 1980s the LRA had some popular backing among northerners, but its support waned as its violence against civilians escalated.[7] Few people in northern Uganda would now profess support for the LRA, though civilians living in the north have often felt marginalized from the central government and the rest of Uganda. While the LRA may have been responsible for the most egregious violence and abuses, human rights violations by Ugandan army soldiers and other law enforcement services committed in northern Uganda have rarely been punished.

Intense military campaigns by the government in 1988, 1991, and 1994 to 1996 hit the LRA hard, but each time the rebels regrouped. Further military activity between 2003 and 2006, possibly the most violent period of the war, also failed to incapacitate the LRA. From the mid-1990s, church leaders and civil society groups in northern Uganda were vocal in demanding political negotiations to end the conflict. After one of the worst LRA massacres killed 330 people at Barlonyo camp in February 2004, the Ugandan government initiated peace talks, but they were unsuccessful.[8]

In September 2005, Kony's deputy, Vincent Otti, and some 60 LRA combatants crossed from northern Uganda and Sudan into Congo and set up camp in Garamba National Park.[9] Over the next year, the rest of the force relocated into Congo and were said to have completed the process by January 2007. In mid-2008, the LRA were estimated to have 600 combatants plus a further 600 abducted civilians in their ranks.

Justice and Peace Efforts

Justice for the most serious violations of human rights and humanitarian law is required under international law. It is also vital to bringing redress to victims of abuses and for building a durable peace. Failure to hold perpetrators to account can fuel future abuses, as has been illustrated by the most recent LRA crimes against civilians.

In December 2003 Ugandan President Yoweri Museveni referred LRA crimes in northern Uganda to the International Criminal Court (ICC). After approximately a year of investigations, the ICC issued warrants in July 2005 for the arrest of five LRA leaders for war crimes and crimes against humanity: Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen. Lukwiya died in 2006 and Otti in 2007.[10]

In 2006 the Ugandan government was persuaded to begin new peace negotiations with the LRA at Juba, southern Sudan, with Riek Machar, the vice president of southern Sudan, serving as mediator. Then UN Secretary-General, Kofi Annan, appointed Joaquim Chissano, former president of Mozambique, as his special envoy for the LRA-affected areas.[11] According to persons close to the peace process, LRA leaders decided to enter talks in part to attempt to avoid arrest off the basis of the ICC warrants.[12] Others claim the LRA entered the peace process only to gain time to regroup, and never intended to surrender.[13] In August 2006, the parties signed a ceasefire agreement which, among its provisions, called for the LRA to assemble in Rikwangba, southern Sudan.

From early on, the LRA sought to evade ICC prosecution, in part by claiming that the ICC was as obstacle to peace.[14] After lengthy negotiations, the parties agreed in June 2007 to pursue domestic trials of the ICC cases in Uganda, an approach that, at least in principle, could satisfy LRA demands to avoid trial in The Hague, while meeting requirements under the ICC statute.

After unprecedented consultations throughout Uganda on accountability and reconciliation, the parties agreed in February 2008 to establish a special division of the Ugandan High Court to try war crimes committed during the conflict.[15] As required by the ICC statute, ICC judges would decide whether such prosecution could replace trial by the ICC.[16]Domestic trials of ICC cases are permissible under the ICC statute and other international standards, but only if a number of benchmarks are met.[17] In an additional agreement, the Ugandan government agreed that following the signing of the final peace agreement, it would ask the Security Council to defer the ICC's investigation and prosecutions.[18]

By March 2008, the parties had reportedly agreed on all outstanding issues, but Kony failed to appear to sign the agreement on April 10 and the next month refused to meet elders of northern Uganda to discuss the agreement.[19] While still professing a commitment to peace, Kony failed to attend further meetings scheduled to discuss the agreement in July, August, and September. After a November 30 deadline was set, Kony did meet with northern Ugandan elders, but set new conditions for signing the accord.[20]

LRA Prepares for Further War

While engaged in peace talks, Kony appears to have been preparing for further war, presumably intending to return to Uganda to fight the Ugandan army.[21] In 2007 and 2008, the LRA created substantial farms near their camps in Garamba National Park. Able to feed themselves at least in part from their fields, the LRA were able to stockpile food and other goods, like rope, provided by donors as an incentive for participating in the talks (see below).

As Kony and his forces concentrated on building their strength in 2006 and 2007, they refrained from attacking the Congolese population surrounding the park, although they did kill some 13 hunters and fishermen who may have inadvertently ventured too near their camp.[22] And in December 2007 they pillaged the Roman Catholic parish and convent, and the health center in Duru town.[23] 

By the end of 2007, Kony apparently sought to strengthen his force by abducting more civilians. But rather than attack nearby populations, he sent his men across the border into southern Sudan and the Central African Republic (CAR).[24] From January through April 2008 LRA combatants profited from the dry season to carry out a series of well-organized operations that abducted 90 persons each from southern Sudan and from CAR.[25] As the LRA returned from CAR, they also abducted at least nine Congolese near the border around Doruma, one of the few abductions of Congolese during this period.[26] They targeted civilians aged 25 years and younger to be porters and laborers. Some of these abducted persons were given military training; others were assigned to cultivating the LRA fields.[27] Many of the women and girls became sex slaves or were otherwise subjected to sexual abuse.[28] 

During early 2008, the LRA also captured military equipment from Sudanese People's Liberation Army (SPLA) bases in southern Sudan, perhaps including the sophisticated communications equipment and infrared night vision goggles later discovered at their camp.[29] 

From March through September 2008, the LRA set up camps called Eskimo and Boo, in the hunting reserve in the west of Garamba National Park, and others at Pilipili, an area just south of the Sudan border and to the west of the park-where many women and children were housed-as well as several smaller bases in the area. In September 2008, Kony moved his headquarters to Kiswahili camp in western hunting reserve of the national park.[30]

MONUC and Congolese Army Action against the LRA

Under Security Council Resolution 1856 and previous resolutions, MONUC has a mandate to protect civilians throughout Congo, with a specific focus on eastern Congo, but the overstretched peacekeeping mission has done little to protect civilians in the northeast. In January 2006, MONUC peacekeepers, not ordinarily present in the region, made a foray into Garamba National Park to try to capture Vincent Otti and cause the LRA to leave the park. The secret operation, conducted by Guatemalan special forces and supported by intelligence from some Security Council member states, ended in disaster. Eight Guatemalan UN peacekeepers were killed in a battle with the LRA, a serious loss that discouraged MONUC from further operations against the rebel group.[31]

In September 2008, MONUC joined the Congolese army in Operation Rudia, which was an operation intended to contain the LRA inside the park area, cut LRA supply routes, and encourage defections.[32] The operation was the much-delayed outcome of a September 2007 agreement between Uganda and Congo.[33]

According to the Operation Rudia operational plan, seen by Human Rights Watch researchers, MONUC was to prevent human rights abuses by the LRA, including acts of violence against the civilian population in northeastern DRC.[34] Three Congolese battalions (over 2,000 troops) and about 200 UN peacekeepers were supposed to be deployed in Haut-Uele district by September 13, 2008, although far fewer than that number had arrived by mid-September.[35] MONUC troops were to remain in the district capital of Dungu and to provide support for Congolese troops deployed in areas where the LRA were active. A planned tactical headquarters in Dungu to coordinate MONUC and Congolese army activities never materialized and, from its start, the operation suffered from inadequate coordination and communication.[36]

The effort to encourage defections resulted in over a dozen LRA combatants surrendering, some of them near the town of Duru. Several found their way to government-controlled areas with the help of the local population. Facing military action and increased defections, the LRA ceased its restraint towards the local Congolese populations. In September 2008, the LRA reverted to its past practice of attacking nearby civilians.

International Humanitarian Law

The armed conflict in northern Congo is governed by international humanitarian law (the laws of war), which applies to both states and to non-state armed groups such as the LRA. Relevant treaty law includes Common Article 3 to the Geneva Conventions of 1949, which sets forth minimum standards for the treatment of persons within a party's control.[37] Also applicable are the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II)[38] and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which bans all recruitment and use of children by state and non-state military forces.[39]

Individuals who willfully commit serious violations of international humanitarian law are responsible for war crimes. War crimes include a wide array of offenses, including murder, torture, and other mistreatment, rape, abduction, use of child soldiers, and pillaging. Commanders may be held criminally responsible for ordering, planning, or instigating the commission of a war crime. They may also be prosecuted for war crimes as a matter of command responsibility when they knew, or should have known, about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.