March 28, 2010

IX. The Search for Justice

International Law

International law calls for accountability for serious crimes, such as genocide, war crimes, crimes against humanity and torture. International treaties, including the Geneva Conventions of 1949 and its additional protocols, the Convention against Torture, and the Rome Statute of the International Criminal Court, oblige states parties to investigate allegations of serious violations of international law and ensure that the perpetrators are prosecuted. Uganda and Congo have ratified each of these as well as various other treaties on international human rights and humanitarian law.

War crimes

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.[112] Also applicable are the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II),[113] 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,[114] and relevant customary international humanitarian law.[115]

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 and other sexual violence, enslavement, forced displacement, recruitment and use of child soldiers, and pillaging.[116] 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.[117]

Crimes against humanity

The concept of crimes against humanity has been incorporated into a number of international treaties and the statutes of international criminal tribunals, including the Rome Statute of the International Criminal Court. The definition of crimes against humanity has been defined as a range of serious human rights abuses committed as part of a widespread or systematic attack by a government or non-state actor against a civilian population. [118] Murder, rape, and other inhumane acts intentionally causing great suffering, all fall within the range of acts that can qualify as crimes against humanity. [119] The civilian population must be the primary object of the attack. [120]

The attack against a civilian population underlying the commission of crimes against humanity must be widespread or systematic. It need not be both. [121] “Widespread” refers to the scale of the acts or number of victims. [122]  A “systematic” attack indicates “a pattern or methodical plan.” [123] International courts have considered to what extent a systematic attack requires a policy or plan. [124]

Lastly, for individuals to be found culpable for crimes against humanity requires their having the relevant knowledge of the crime. [125] That is, perpetrators must be aware that their actions formed part of the widespread or systematic attack against the civilian population. [126] While perpetrators need not be identified with a policy or plan underlying crimes against humanity, they must at least have knowingly taken the risk of participating in the policy or plan. [127]  Individuals accused of crimes against humanity cannot avail themselves of the defense of following superior orders. Because crimes against humanity are considered crimes of universal jurisdiction, all states are responsible for bringing to justice those who commit crimes against humanity. There is an emerging trend in international jurisprudence and standard setting that persons responsible for crimes against humanity, as well as other serious violations of human rights, should not be granted amnesty.

International Criminal Court

Congo is a party to the Rome Statute of the International Criminal Court (ICC), providing the ICC jurisdiction over crimes in violation of international law committed in Congo, including by the LRA. Uganda is also a party to the ICC statute, giving the court jurisdiction over such crimes committed by Ugandan nationals, which would include LRA commanders. The ICC may exercise jurisdiction for “the most serious crimes of concern to the international community as a whole,”[128] specifically genocide, crimes against humanity, and war crimes.

In December 2003, Ugandan President Yoweri Museveni referred LRA crimes in northern Uganda to the ICC and in mid-2004, the ICC prosecutor announced the opening of an investigation into crimes committed in northern Uganda.[129] In March 2004, the Congolese government referred the situation in Congo to the ICC,[130]inviting the ICC prosecutor to investigate crimes within the jurisdiction of the Rome Statute on its territory.

After approximately a year of investigations in northern Uganda, the ICC issued warrants in July 2005 for the arrest of five LRA leaders for war crimes and crimes against humanity committed on Ugandan territory.[131] While the ICC also has issued arrest warrants for serious crimes committed in Congo, it has not brought charges for LRA crimes committed in Congo. The ICC arrest warrants for LRA suspects who remain alive are currently outstanding as no LRA suspects have been apprehended.

Ugandan Amnesty Act

In 2000, the Ugandan parliament passed the Amnesty Act, which established an Amnesty Commission and procedures for granting amnesty to LRA members and members of other Ugandan rebel groups. The legislation, effective from January 26, 1986, states that it is applicable to “Ugandans involved in acts of a war-like nature in various parts of the country”[132] and sets out specific requirements for eligibility including renouncing and abandoning involvement in the war or armed rebellion.[133] Individuals who meet the amnesty requirements cannot be prosecuted or punished for their alleged crimes in Uganda, although under a 2006 amendment to the law, in exceptional circumstances, the Ugandan Minister of Internal Affairs can declare an individual ineligible if the Ugandan parliament agrees.[134] According to statistics from the Ugandan Amnesty Commission, 24,000 LRA members have received amnesty since 2000, of which 17,000 were combatants.[135] The Ugandan Amnesty Act does not apply to crimes committed by Ugandan citizens before national courts in other countries. As a result, Uganda cannot grant amnesty abroad for LRA crimes committed in Congo, Sudan and CAR. Domestic amnesties should also not be a bar to prosecution before the ICC.

No one has ever been convicted for crimes committed by the LRA, though one LRA member awaits trial in Uganda.[136] To date, LRA-affected communities outside of Uganda have not had the opportunity to present to any government or UN body the remedies they seek for the crimes they have suffered. In addition, no criminal investigations or prosecutions of LRA commanders for crimes outside of Uganda have to our knowledge been pursued.

Congolese Requests for Justice and Reparations

The armed conflicts that have devastated Congo over the past decade have fostered pressure on the Congolese government to provide amnesties for war crimes and crimes against humanity in the hope it would encourage peace. Congolese government officials and legislators have successfully and repeatedly resisted such efforts. Congolese society continues to express a strong preference for justice, not amnesties, for perpetrators of serious crimes. An August 2008 survey on Congolese attitudes about peace, justice and social reconstruction found that accountability and justice for grave crimes were very important to people in eastern Congo, and that people believed these concepts promoted peace. In the survey, 85 percent of respondents deemed it important to hold accountable those who committed war crimes in eastern Congo.[137]

Civil society groups in LRA-affected areas in Congo and victims of LRA crimes have expressed a strong desire to see LRA commanders brought to justice and have requested reparations for the material losses they have suffered.[138] These demands for justice have been particularly pronounced in the town of Faradje, in northeastern Congo. On December 25, 2008, the LRA, commanded by Lt. Col. Charles Arop, carried out a brutal attack on Faradje killing at least 143 people and abducting 160 children and dozens of adults.[139] During the attack, the LRA also looted extensively and burned 940 houses, three primary schools, and nine churches leaving large parts of Faradje destroyed.[140]

In September 2009, Arop surrendered to Ugandan soldiers based near Faradje and was transferred to Uganda, where he is seeking amnesty under the Ugandan Amnesty Act.[141] In press interviews, Arop admitted to the attack on Faradje, claiming the town was chosen because “it was the nearest place where such massacres would have an impact and where they would get international publicity.”[142] He said he was acting under orders from LRA leader Kony, in which he received instructions that “anybody found in Faradje had to be killed; those able to be turned into soldiers had to be abducted.”[143] When later asked about how he felt about the killings, Arop said, “It was painful but you have to do it. I want to ask the relatives of those we killed to forgive me. Whatever we did, we did it under orders.”[144] 

In February 2010, 19 civil society representatives and local authorities told Human Rights Watch that they wished to see the LRA commander brought to justice for crimes he committed in their town. One civil society representative said:

Arop is someone who should be brought before justice, and he should be judged in Congo. If the Congolese courts aren’t capable, the International Criminal Court is there for that. Here in Faradje, we have witnesses who are fully ready to testify openly in court against this man... The Congolese people have nothing to do with why the LRA are fighting. Because of this, the Ugandan government should also provide some reparations for all the human and material losses we’ve suffered.[145]

On March 13, 186 residents of Faradje, including many who were victims of the LRA attacks, wrote an official letter to the Congolese Minister of Justice and Human Rights requesting the Congolese government to launch judicial proceedings against Arop for the crimes he committed and for reparations for the victims.[146] A copy of the letter can be found in the annex of this report.

Options for Justice

There are a number of options to bring to justice LRA commanders for international crimes committed in Congo that should be explored:

a)      The ICC could issue charges with regard to the LRA’s more recent crimes, including those in Congo.

b)      Congolese authorities could seek to prosecute before Congolese courts those LRA commanders who have committed crimes on Congolese territory, including those in Uganda or elsewhere for whom Congo should seek extradition.

c)      Since Congo’s civilian justice system remains weak and, under Congolese law, war crimes currently may be prosecuted only before military courts, the Congolese government should consider the establishment of a mixed national-international chamber within the civilian justice system. The chamber, composed of Congolese and international judges and prosecutors, would prosecute those responsible for war crimes and crimes against humanity not sought on arrest warrants by the ICC. Such a chamber could try LRA commanders who are Ugandan or other nationals who committed crimes within Congolese territory.[147]

d)      The Special Division of Uganda’s High Court, whose creation was prompted by agreements made during peace talks between the Ugandan government and the LRA between 2006 and 2008,[148] could seek to prosecute Arop and other LRA commanders outside Uganda. Notably, on March 10, 2010, Uganda’s parliament passed an international crimes bill, which makes crimes under the ICC statute prosecutable offenses under Ugandan law. If signed into law, the bill provides that Ugandan courts can prosecute serious crimes committed outside Uganda if the suspect is Ugandan, if the offense was committed against a Ugandan, or if the alleged perpetrator is present in Uganda.[149] The bill appears to be silent on how it will interact with Uganda’s amnesty law.

With regard to national options, the Ugandan Special Division’s status as an established entity, while still in the very early stages of development, underscores the utility of pursuing cases through this court. At the same time, it is crucial to ensure that domestic prosecutions adhere to international due process and fair trial standards.[150]

[112]Geneva Conventions of 1949, entered into force October 21, 1950, article 3.

[113]Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978. DRC ratified Protocol II in December 2002.

[114]Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, G.A. Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III (2000), entered into force February 12, 2002. The optional protocol defines children as all persons under age 18. The DRC ratified the optional protocol in November 2001.

[115] See generally International Committee of the Red Cross (ICRC), Henckaerts & Doswald-Beck, eds., Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005).

[116] See ICRC, Customary International Humanitarian Law, rule 156.

[117]See ICRC, Customary International Humanitarian Law, rule 153.

[118] See Rodney Dixon, “Crimes against humanity,” in Otto Triffterer, ed., Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 122. This is the standard applied by article 7 of the Rome Statute of the International Criminal Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1, 2002.

[119]Murder and torture are among the core offenses that have been included within the definition of crimes against humanity at least since the adoption of the charter establishing the Nuremberg tribunal after World War II. Deportation (to another country) was listed but not (internal) forced transfer. Rape was not explicitly included in the charter’s definition of crimes against humanity in article 6(c), although it could be derived from that definition’s general prohibition against “other inhumane acts.” This ambiguity has been resolved in recent years; the statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as the Rome Statute, all explicitly include rape in the list of enumerated offenses that can constitute crimes against humanity. The Rome Statute also lists: extermination, enslavement, deportation, and forcible transfer of population, imprisonment, persecution, enforced disappearance, apartheid, and “other inhumane acts.” Rome Statute, article 7(1).

[120]See Prosecutor v. Naletilic and Martinovic, International Criminal Tribunal for the former Yugoslavia (ICTY), Case No. IT-98-34, Judgement (Trial Chamber I), March 31 2003, para. 235.

[121] See Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. 646 (“it is now well established that…the acts…can…occur on either a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts.”).

[122]Akayesu defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims,” Prosecutor v. Akayesu, ICTR, Case No. ICTR-96-4-T, Judgement (Trial Chamber I), September 2, 1998, para. 579; see also Prosecutor v. Kordic and Cerkez, ICTY, Case No. IT-92-14/2, Judgement (Trial Chamber III), February 26, 2001, para. 179; Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, Judgement (Trial Chamber II), May 21, 1999, para. 123.

[123]Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. 648. In Prosecutor v. Kunarac, Kovac and Vokovic the Appeals Chamber stated that “patterns of crimes—that is the non-accidental repetition of similar criminal conduct on a regular basis—are a common expression of [a] systematic occurrence.” Prosecutor v. Kunarac, Kovac and Vokovic, ICTY, Case No. IT-96-23 and IT-96-23-1A, Judgement (Appeals Chamber), June 12, 2002, para. 94.

[124]Prosecutor v. Akayesu, ICTR, Case No. ICTR-96-4-T, Judgement (Trial Chamber I), September 2, 1998, para. 580.

[125]See Prosecutor v. Kupreskic et al., ICTY, Case No. IT-95-16, Judgement (Trial Chamber), January 14, 2000, para. 556.

[126]See Prosecutor v. Kupreskic et al., ICTY, Case No. IT-95-16, Judgement (Trial Chamber), January 14, 2000, para. 556: “[T]he requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.” See also Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1, Judgement (Appeals Chamber), July 15, 1999, para. 271; Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, Judgement (Trial Chamber II), May 21, 1999, paras. 133-134.

[127]See Prosecutor v. Blaskic, ICTY, Case No. IT-95-14-T, Judgement (Trial Chamber), March 3, 2000, para. 257. Blaskic (paras. 258-259) listed factors from which could be inferred knowledge of the context: (a) the historical and political circumstances in which the acts of violence occurred; (b) the functions of the accused when the crimes were committed; (c) his responsibilities within the political or military hierarchy; (d) the direct and indirect relationship between the political and military hierarchy; (e) the scope and gravity of the acts perpetrated; and (f) the nature of the crimes committed and the degree to which they are common knowledge.

[128] Rome Statute, ratified by the Democratic Republic of Congo on September 8, 2000 and by Uganda on June 14, 2002, art. 5.

[129]“Prosecutor of the International Criminal Court opens an investigation into Northern Uganda,” ICC press release, July 29, 2004, http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/2004/prosecutor%20of%20the%20international%20criminal%20court%20opens%20an%20investigation%20into%20nothern%20uganda?lan=en-GB. Once the court exercises itsjurisdiction, it has the authority to prosecute crimes by any individual, regardless of affiliation, provided the crimes were committed after 2002.

[130]“Prosecutor receives referral of the situation in the Democratic Republic of Congo,” ICC press release, April 19, 2004, http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/2004/prosecutor%20receives%20referral%20of%20the%20situation%20in%20the%20democratic%20republic%20of%20congo (accessed March 25, 2010).

[131]Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen. Lukwiya died in 2006 and Otti in 2007.

[132] The Amnesty Act, 2000 (Uganda).

[133] Ibid, section 4.

[134] The Amnesty (Amendment) Act, 2006 (Uganda). No one has ever been declared ineligible.

[135] Ugandan Amnesty Commission report, December 2009.

[136] Only one LRA member is currently awaiting trial. Col. Thomas Kwoyelo Latoni, who was captured by the Ugandan army in Congo on February 3, 2009, was charged on June 3, 2009, with 12 counts of murder with intent to kidnap stemming from incidents in 1994 and 1996. Chris Ocowun, LRA’s Kwoyelo charged with kidnap,”The New Vision (Kampala), June 4, 2009. Kwoyelo was held in unclear legal circumstances from February to June 2009. Ugandan authorities stated he was held as a prisoner of war, but Uganda has no domestic definition of such a legal status. He was not charged for any crimes committed in Congo. According to the Amnesty Commission, mandated to manage the amnesty process, Kwoyelo has applied for amnesty but to date no determination has been made. Human Rights Watch interview with Amnesty Commission official, March 16, 2010.

[137] Human Rights Centre (University of California, Berkeley), International Center for Transitional Justice and Payson Center for International Development (Tulane University), “Living with Fear: A Population Based survey on Attitudes about Peace, Justice and Social Reconstruction in Eastern Democratic Republic of Congo,” August 2008, http://hrc.berkeley.edu/pdfs/LivingWithFear-DRC.pdf (accessed March 15, 2010).

[138]Letter to the Congolese Minister of Justice and Human Rights from Faradje Civil Society, Formal complaint against LRA Commander Charles Arop, March 13, 2010. On file at Human Rights Watch.

[139] See Human Rights Watch, The Christmas Massacres.

[140] Ibid.

[141] Human Rights Watch interview with Amnesty Commission official, March 16, 2010.

[142] Els De Temmerman,“LRA’s Joseph Kony to seek protection from Sudan army,”The New Vision (Kampala), November 22, 2009, http://www.newvision.co.ug/D/8/13/702017 (accessed on March 15, 2010).

[143] Ibid.

[144] Ibid. International humanitarian law rejects the so-called “Nuremberg defense,” unsuccessfully used by Nazi war criminals after the Second World War. Obeying a superior’s order does not relieve a subordinate of criminal responsibility if the subordinate knew or should have known that the act ordered was unlawful. See, for example, Rome Statute, article 33.

[145] Human Rights Watch interview with civil society representative, Faradje, February 24, 2010.

[146] Letter to the Congolese Minister of Justice and Human Rights from Faradje Civil Society, Formal complaint against LRA Commander Charles Arop, March 13, 2010. On file at Human Rights Watch.

[147]Draft legislation implementing the Rome Statute of the ICC currently before parliament vests the civilian courts with the jurisdiction to try ICC crimes. However, the civilian justice system has its own shortcomings and lacks expertise in trying these crimes compared to the military justice system. For further information see Human Rights Watch, Soldiers who Rape, Commanders who Condone: Sexual Violence and Military Reform in the Democratic Republic of Congo, July 2009, http://www.hrw.org/en/reports/2009/07/16/soldiers-who-rape-commanders-who-condone-0; Human Rights Watch, Discussion paper: A “mixed chamber” for Congo?, September 2009, http://www.hrw.org/en/news/2009/11/19/mixed-chamber-congo. 

[148]Annex to the Agreement on Accountability and Reconciliation between the Government of the Republic of Uganda and the Lord's Resistance Army/Movement, Juba, Sudan, June 29, 2007, February 19, 2008.

[149] As of this writing, it could not be confirmed which draft text of the ICC bill was considered and approved by parliament with amendments on March 10, 2010. There have been several versions of the bill. It is our understanding that the provisions for the exercise of jurisdiction for crimes committed outside Uganda were included in the different versions considered. See International Criminal Court Bill, 2006 (draft), International Crimes Bill of 2009 (draft) and Report of the Committee on Legal and Parliamentary Affairs on the International Criminal Court Bill, 2006 stating amendments. On file at Human Rights Watch.  The president must sign the bill before it becomes law.

[150] See Human Rights Watch, Benchmarks for Justice for Serious Crimes in Northern Uganda, Human Rights Watch Memoranda on Justice Standards and the Juba Peace Talks, May 2007-February 2008, September 2008, http://www.hrw.org/en/news/2008/09/01/benchmarks-justice-serious-crimes-northern-uganda, in particular the third memorandum: “Particular Challenges for Uganda in Conducting National Trials for

Serious Crimes, September 2007.”