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I. Introduction

On June 29 the government of Uganda and the Lord’s Resistance Army (LRA) signed an agreement on accountability and reconciliation as part of the peace talks that have been taking place in Juba, southern Sudan, since July 2006. The talks are now on a recess for consultations and development of implementing protocols to the agreement.

Human Rights Watch believes that the peace talks create important prospects for ending the devastating 21-year conflict in northern Uganda. Human Rights Watch also believes that any outcome must include both a peace agreement and fair and credible prosecutions of those responsible for the most serious crimes committed, together with broader accountability measures. Throughout the conflict, the LRA and, to a lesser extent, the government forces have committed numerous crimes in violation of international law and other human rights abuses. We firmly believe that prosecutions for the most serious of these are essential to accountability and to establishing a durable peace in northern Uganda.¹

Arrest warrants issued by the International Criminal Court (ICC) in 2005 for LRA leaders provide a crucial opportunity to ensure justice is done for at least some serious crimes. The warrants allege that LRA leaders bear individual criminal responsibility for crimes against humanity including murder, enslavement, sexual enslavement, and rape; and for war crimes including murder, intentionally directing an attack against a civilian population, pillaging, rape, and forced enlisting of children.²

The June 29 agreement on accountability and reconciliation looks instead to national trials in Uganda. The ICC allows and actually favors national trials where possible. Nevertheless, as detailed in a May 2007 Human Rights Watch memorandum, any national alternative to trial by the ICC should, consistent with the ICC’s Rome Statute and other international standards, satisfy substantial benchmarks. These arecredible, impartial, and independent investigation and prosecution; rigorous adherence in principle and in practice to international fair trial standards; and penalties that are appropriate and that reflect the gravity of the crimes.³

The June 29 agreement’s recognition of the importance of trials for the most serious crimes, including for any individual regardless of affiliation, is positive.⁴ The agreement also includes broader accountability measures, including truth-telling and traditional justice.⁵ Nevertheless, the agreement leaves open the potential for fundamentally inadequate penalties in the event of convictions for the most serious crimes. Paragraph 6.3 of the agreement states that “a regime of alternative penalties and sanctions” shall be introduced and “replace existing penalties” with respect to serious crimes committed by “non-state actors.” It is unclear from the agreement and from public statements what “alternative penalties” may apply and to what extent they will depart from ordinary criminal penalties under Ugandan law.  The agreement, furthermore, indicates under paragraph 6.4 that penalties should address various objectives—including to reflect the gravity of the crime and to promote reconciliation and rehabilitation—but without addressing what types of penalties will advance such objectives.

The agreement also does not address full incorporation of international crimes and theories of criminal responsibility into domestic law. These are necessary for charges to reflect the gravity of the most serious crimes and culpability where a defendant is not accused of directly committing crimes, which is often the case when leaders are tried.

This memorandum builds upon our May 2007 memorandum by providing a more detailed discussion of appropriate penalties for any national trials of ICC cases. These are the same penalties that should apply to any other national trials for serious crimes. In sum, the Rome Statute and international standards, along with international and domestic practice, indicate that a term of imprisonment that matches the seriousness of the offense, while taking into account any mitigating factors, should be the penalty in the event of conviction. Although permitted under Ugandan law, the death penalty should not be allowed as it is an inherently cruel and inhuman form of punishment.

Our analysis of penalties here should not obscure the fundamental right under international law of an accused to be presumed innocent. Any trials for which appropriate penalties are available must rigorously observe international fair trial standards.⁶

Key governments, United Nations (UN) representatives, and the mediation team have a crucial role to play in ensuring that both peace and justice are achieved in northern Uganda. We urge that all appropriate influence be brought to bear on the parties to pursue this outcome, including by insisting that proposed national trials include provision of adequate penalties in the event of convictions.