(New York) - The agreement announced today between the Ugandan government and the Lord's Resistance Army is a major step, but provisions on war crimes trials must be effectively put into practice for sustainable peace and justice in northern Uganda.
The agreement, which was signed as part of peace talks that began in July 2006, provides for a special division of Uganda's High Court to prosecute those who planned or carried out war crimes or other widespread or systematic attacks on civilians.
"Today's agreement could be a major step toward peace and justice for northern Uganda, but the true test lies in how the agreement is put into practice," said Richard Dicker, International Justice Program director at Human Rights Watch. "What is significant is that the parties agreed to a specific plan to try the most serious crimes."
In addition to the special High Court division, the agreement provides for other aspects of domestic prosecution, including a multidisciplinary investigations and prosecutions unit, attention to the needs of victims and witnesses, and recruitment of relevant experts. There are also provisions for a truth commission, reparations to victims, and traditional justice practices. However, the agreement does not have explicit provisions on other important matters like measures to ensure respect for international fair trial standards and adequate penalties.
Interest in domestic trials for serious crimes committed in northern Uganda gained momentum during the peace talks as a substitute for prosecutions of LRA leaders by the International Criminal Court in The Hague. The ICC had issued arrest warrants for LRA leaders for crimes against humanity and war crimes in 2005.
The ICC statute favors national trials where possible. However, under the court's statute and other international standards, trials should be credible, independent, and impartial. They should adhere to international fair trial standards, and impose penalties that are appropriate given the gravity of the crime, namely imprisonment.
"There must be fair, credible prosecutions of the most serious crimes committed by both sides and sufficient penalties for those convicted," said Dicker. "The agreement does not fully speak to this, and we look to the parties and international partners to ensure that they are properly addressed."
While LRA leaders have sought to portray the ICC as an obstacle to achieving peace, the ICC warrants are widely credited with helping to move the parties to the negotiating table and contributing to a focus on accountability at the peace talks. Justice is a critical element to achieving a peace that is sustainable, Human Rights Watch said.
Given the ICC's jurisdiction over crimes in northern Uganda and Uganda's obligations as a party to the ICC, the ICC will determine whether a domestic trial is an adequate alternative to prosecution by the ICC itself. The ICC can retake a case if necessary.
"It is the ICC judges who decide if a national trial will be sufficient for their cases," Dicker said. "National trials are not a route to impunity."
Measures to ensure comprehensive witness protection and support, security, and outreach to the affected communities are other important components to national trials for serious crimes, Human Rights Watch said. According to research done by Human Rights Watch in August 2007, Ugandan law and practice will need strengthening in these areas.
"Improvements in the Ugandan justice system will undoubtedly be needed to make national trials viable," said Dicker. "We are talking about holding highly sensitive trials in a country with a history of attempted interference with the judiciary and no real witness-protection program."
The conflict in northern Uganda, which began in 1986, has been characterized by serious crimes under international law and other human rights abuses by the Lord's Resistance Army and, to a lesser extent, by government forces. The LRA has been responsible for numerous willful killings, beatings, large-scale abductions, forced recruitment of adults and children, rape against girls whom it assigns as "wives" or sex slaves to commanders, and large-scale looting and destruction of civilian property. Abuses by the Ugandan People's Defense Forces (UPDF) have included extrajudicial executions, rape, torture and cruel, inhuman, and degrading treatment, arbitrary detention, and forced displacement.
In December 2003, Ugandan President Yoweri Museveni asked the International Criminal Court to investigate crimes committed by the LRA. Once the ICC exercises jurisdiction over crimes, as it has done in northern Uganda, the court has the authority to prosecute crimes by any individual, regardless of affiliation. Under its statute, the ICC has jurisdiction to prosecute only crimes committed after 2002.
In July 2005, the court issued warrants for the arrest of the top five LRA leaders: Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen. Lukwiya was killed in 2006, and Otti was reportedly killed in 2007. The ICC has not issued warrants for any UPDF commanders or Ugandan government officials.