Graduate School of Development Studies
THE WAR CRIMES COURT:
A RIGHTS-BASED RESPONSE TO THE CONFLICT IN
NORTHERN UGANDA?
A Research Paper presented by:
Beatrice Stella Atingu
(Uganda)
in partial fulfilment of the requirements for obtaining the degree of
MASTERS OF ARTS IN DEVELOPMENT STUDIES
Specialization:
Human Rights, Development and Social Justice
(HDS)
Members of the examining committee:
Supervisor’s name (Professor Karin Arts)
Reader’s name (Doctor Jeff Handmaker)
The Hague, The Netherlands
November, 2011
Disclaimer:
This document represents part of the author’s study programme while at the
Institute of Social Studies. The views stated therein are those of the author and
not necessarily those of the Institute.
Inquiries:
Postal address:
Institute of Social Studies
P.O. Box 29776
2502 LT The Hague
The Netherlands
Location:
Kortenaerkade 12
2518 AX The Hague
The Netherlands
Telephone:
+31 70 426 0460
Fax: +31 70 426 0799
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DEDICATION
This research is first dedicated to God, the giver and taker of life and its blessings, who has been both my earthly and heavenly father; to my late parents;
Mr. and Mrs. Michael & Priscilla Amenu; to my guardian Maria Catherine Maw
who took care of me through childhood to adulthood.
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Acknowledgments
I acknowledge the power and work of God in my life, who has taken me
through the ups and downs of life by using different people to aid me through
the stages of life to this very achievement.
Secondly, I want to acknowledge the professional and moral support that I
received from my supervisor Professor Karin Arts who has been so understandingly dedicated to teaching and guiding me throughout the stages of coming up with this final report. I also acknowledge the professional support by
my second reader and HDS convenor Doctor Jeff Handmaker who throughout the course encouraged me and has tremendously contributed to the realization of this final report.
I also specifically acknowledge my fiancée Onesmus Bitaliwo who helped
and encouraged me throughout the exercise of writing this paper and during
data collection and my siblings who equally encouraged me.
My sincere thanks go to: both my discussants; Grace Angeline Chelimo
and Moreblessing Mbire; all my respondents in Gulu, Lira, Amuru and Kitgum
who spared their time and were willing to give me all the information that they
possessed; ARLPI; Acholi Traditional Leadership; the GNWVPN; the busy
government officials, that is; the DPP, court officials and JLOS officials who,
though very busy with the court and other business, were willing to spare the
time to give me the information that I needed; the nongovernmental organizations; and civil society networks that provided me with information.
I knowledge my employer, the Judiciary of Uganda for their support and
encouragement that they gave me
Finally, my acknowledgement goes to the Netherlands government which
set up the Netherlands Fellowship Programme under which I got support to
study my whole MA as well as support to facilitate my travel to the field in
Northern Uganda to collect field data
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Contents
DEDICATION
Acknowledgments
Contents
List of Tables
List of Figures
List of Maps
List of Acronyms
Abstract
Relevance to Development Studies
Key Words:
Chapter 1
1.1 Background
1.2 Introduction
1.3 PROBLEM STATEMENT
1.4 RELEVANCE AND JUSTIFICATION
1.5 RESEARCH OBJECTIVES
1.6 MAIN RESEARCH QUESTION
1.7 THE SCOPE OF STUDY
1.8 METHODOLOGY
1.8.1 Population of Study
1.8.2 Sampling Techniques
1.8.3 Data Collection Methods and Instruments
1.8.4.1 Secondary Data:
1.8.4.2 Primary Data:
Challenges:
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Chapter Two:
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Chapter 3 The War Crimes Court: Record and Stakeholder’s Views.
4.1 Conclusions
References
Appendices
APPENDIX A (RESPONSES FROM QUESTIONNAIRE
RESPONDENTS)
APPENDIX B (RESPONSES FROM KEY INFORMANTS)
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59
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74
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List of Tables
Table 1.1
Age bracket of respondents
Table 1.2
Gender of respondents
Table 1.3
Level of education of respondents
Table 1.4
Directly affected respondents
Table 1.5
How the respondents were affected
Table 1.6
Respondents knowledge of the war crimes court
Table 1.7
How the respondents knew about the court
Table 1.8
whether the respondents knew the activities of the court
Table 1.9
whether respondents were complainants in the court
Table 1.10
whether respondents were witnesses in the court
Table 1.11
who the respondents think should be tried by the court
Table 1.12
whether the victims expect justice from the court
Table 1.13
Why the respondents expect justice from the court
Table 1.14
Respondents opinion on the most desirable venture of redress
Table 1.15
Respondents opinion on remedies expected from court
Table 1.16
Respondents view of an adequate remedy
Table 1.17
Respondents views on the remedies that the court offers
Table 1.18
Accessibility of the court to the respondents
Table 1.19
Challenges faced by respondents in accessing the court
Table 1.20
Respondents opinion on how to improve the court towards
addressing human rights violations and war crimes
List of Figures
Figure 1.1
Age bracket of respondents
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Figure 1.2
Gender of respondents
Figure 1.3
Level of education of respondents
Figure 1.4
Directly affected respondents
List of Maps
Map of Uganda showing districts of post war conflict Northern Uganda.
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List of Acronyms
ADF
Allied Democratic Forces
ARLPI
Acholi Religious Leaders Peace Initiative
DPP
Directorate of Public Prosecutions
GNWVPN
Greater North Women’s Voices for Peace Network
ICC
International Criminal Court
ICD
International Crimes Division
ICESCR
International Convention on Economic, Social and
Cultural Rights
JLOS
Justice Law and Order Sector
JRP
Justice Reconciliation Project
LRA
Lord’s Resistance Army
NRA
National Resistance Army
NRM
National Resistance Movement
RLP
Refugee Law Project
UDHR
Universal Declaration on Human Rights
UPDF
Uganda Peoples Defence Forces
UPM
Uganda Peoples Movement
UVF
Uganda Victims Foundation
WCC
War Crimes Court
CAR
Central Africa Republic
DRC
Democratic Republic of Congo
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UPFI
Uganda Peace Foundation Initiative
LCV
Local Council V (Five)
IRIN
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Abstract
North and North-Eastern Uganda have faced a war conflict situation for over
20 years which brought with it commission of war crimes and other human
rights violations by both state (UPDF) and non state actors (LRA). Although
the government of Uganda had underestimated the havoc and atrocities that
the LRA would occasion on the population, especially on the innocent civilians, the reverse was true. The war persisted and prompted the Museveni government to engage different means including military action, dialogue, referring
the situation to International Criminal Court, provision for amnesty laws, establishment of the war crimes court and provision for non- formal justice
mechanisms in a bid to address both the war conflict and the post war conflict
situation in the region.
The establishment of the war crimes court is a result of the Juba Peace
Agreement on Accountability and Reconciliation (though not signed by LRA
leader Joseph Kony). It raised mixed feelings of both hope and distrust among
the victims and stake holders because according to the agreement, the court
will only try the LRA and any other person but not state actors (UPDF). The
latter will be tried in the military court martial and other existing criminal justice fora. Therefore, the views of the victims and stakeholders on the establishment, role and activities of the war crimes court are divergent.
Considering the circumstances under which the court was established and
the limited jurisdiction of the court to, the issue is whether the war crimes
court will serve the role of observing the Rule of Law and providing justice to
the victims as is hoped and anticipated by many. The views of the victims on
the issue are divided based on ideologies, experiences, influence and other factors.
Relevance to Development Studies
Development in itself has been recognised as a right internationally. Marks and
Clapham (2005:91) wrote that;
And just as human rights have entered the arena of development, so too development has become a key issue in discussions, activities in norm making
within the field of human rights. One manifestation of this is the emergence
of the ‘right to development’ embodying the notion that development is the
basis of a human right in itself.
Development as a right and human rights are universal and interrelated.
Being able to address the issue of human rights by a state would indicate the
level of development of that state. Therefore human rights issues are important
to development because they are one of the indicators of development. A part
from that, understanding the issues of post-war conflict situations in the contemporary world will inform and influence development goals and planning.
This paper is therefore relevant to development studies because it enquires
into issues of human rights that need to be urgently addressed. Especially issues of conflict and post conflict.
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Key Words:
War Crimes, Crimes Against Humanity, Human Rights Violations, Accountability, Northern Uganda, Remedies, Victims, War Crimes Division
Court, International Criminal Court.
.
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Chapter 1
1.1 Background
Northern Uganda is comprised of over 14 districts which include Arua, Gulu, Apac, Moroto, Nebbi, Adjumani, Lira, Moyo, Kotido, Pader, Nakapiripirit,
Yumbe, Kitgum, Amuru, Koboko and others. The region covers an estimated area of 85,392.2 Square kilometres, which is 35% of the country’s total
land surface. The total population of Northern Uganda by 2002 was
4,220,700, which is much lower than other regions.
95% of the population in Northern Uganda live in the rural areas and Internally Displaced Peoples Camps. About 53% of the population is illiterate.
The main economic activity is farming (Ministry of Finance, Planning and
Economic Development, 2002).1
The period between 1987 and 2005 saw grave human rights violations,
commission of war crimes and crimes against humanity in North and NorthEastern Uganda by both state and non-state actors. According to a January
2004 ICC press release on the Situation in Uganda, cited in Ssenyonjo,
(2005:411)-: “during the course of the conflict, the LRA had burned at least
1946 houses and 1600 storage granaries, looted at least 1327 houses, 116 villages and 307 shops”.
According to a Human Rights Watch press release (2004), about one
thousand children were abducted by the LRA by 2002. The report also indicated that “violations committed by the UPDF include extra judicial killings, rape
and sexual assault, forcible displacement of over one million civilians and the
recruitment of children under the age of 15 in to government militia.”
(HRW,2004). In addition Kathryn Westcott (2003), cited in Kasaija (2005:402),
stated that “many of the abducted women and girls are subjected to rape, unwanted pregnancies and risk sexually transmitted diseases, including
Most of the figures and information changed since, but there are no more recent
data available on the background setting of Northern Uganda.
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HIV/AIDS.” Forced abductions, forced pregnancies and rape are all crimes
envisaged in Section 7(1) of the Rome statute and were all used against women
and girls population of Northern Uganda by the LRA and the UPDF.
Source: http://northernuganda.usvpp.gov/map.html
The regions marked red are districts comprising Northern and North Eastern Uganda region and the ones marked blue are the districts in which
most of the researcher’s respondents reside.
1.2 Introduction
Since 1986 with the coming in to power of president Museveni following his
bush war, Northern Uganda has been affected by constant civil wars and
turmoil for over two decades and was characterized by violence and gross
violations of human rights (Uganda Peace Foundation Initiative, 2011). Rebel groups emerged after 1986 in Northern and North-Eastern Uganda and
these included the Lord’s Resistance Army (LRA) under the leadership of
Joseph Kony, the ‘Holy Spirit Movement’ under the leadership of Alice
Lakwena, the Uganda Peoples Democratic Army/Movement (UPDA/M)
2
and Uganda People’s Army (UPA) all claiming to fight against the Museveni
government that had just captured power (Kasaija, 2005:391-392).
Different actors including the government of Uganda, the Lord’s Resistance
Army, and the Sudanese government were involved in the conflict (Dolan,
2009: Appendix A). During the war, many crimes were committed including
murder of innocent civilians, mutilations carried out on civilians, sexual violence against women and girl children, abductions and recruitment into the
militia of children, looting and burning of homes and property (Kasaija,
2005). The government of Uganda, which has the primary responsibility to
respect, protect and fulfil human rights (Ssenyonjo, 2005) failed to protect
its citizens who were victims of basic human rights violations. Their rights
to life, food, housing, health, education, property and others were not protected by the government of Uganda. As observed by Ssenyonjo,( ibid:429)
“It is in this respect that the UNHCR, as noted above, expressed ‘regret’ in
2004 that the Ugandan government (rather than the LRA/M) had not taken
‘sufficient steps’ to ensure the rights to life, liberty and security of persons
affected by the armed conflict in Northern Uganda, particularly the IDPs.”
Following the above, in 2004, the government of Uganda referred the situation in Northern Uganda to the International Criminal Court whereupon the
chief prosecutor commenced investigations in to the matter and subsequently in 2005 issued warrants of arrest against five LRA top leaders (Ssenyonjo,
2005). This lured the LRA towards negotiations with the government leading to the Agreement on Accountability and Reconciliation which provided
for amnesty leading to enactment of an amnesty act of 2000 (laws of Uganda), traditional justice mechanisms like mato oput and the War Crimes Court.
As a result, the War Crimes Court was established in 2008 as a specialised
division of the high court of Uganda. In 2010 the same court was redesignated as the International Crimes Division (ICD) and its jurisdiction enhanced to try even crimes of genocide, piracy, human trafficking and all oth-
3
er crimes of an international nature alongside the war crimes and crimes
against humanity that the court was originally established for.
1.3 PROBLEM STATEMENT
War crimes and human rights violations were massively committed in
Northern Uganda by both state and non-state actors. Although some figures of
numbers of people killed by LRA have been recorded by some authors (Kasaija) and international organizations like human rights watch not everything is
reflected. For example, Kasaija (2005:400), writes that “in 1995, the LRA
butchered 240 civilians at Atiak in Lira district in a single day, in 2004 killed 50
civilians after attacking an IDP camp at Abia in Lira district (...) in the same
month attacked Barlonyo camp and left close to 200 people dead.” In October
2003, 1.4 million people were stated to live in camps in Northern Uganda
(ibid).
The War Crimes Court in Uganda was established in 2008. Some theories
have been advanced by different groups of people to explain why the War
Crimes Court was established. These include, firstly; the objective of trying
suspects of war crimes and human rights violations committed during the war
in Northern Uganda by the Lord Resistance Army (LRA) and any other individual. According to the 2006-2008, crumbled Juba Peace Agreement, state
actors, shall be subjected to existing criminal justice processes and not to the
War Crimes Court (See paragraph 4 of the reconciliation and accountability
annex to the agreement). The Chief justice of Uganda is quoted as having stated that “the War Crimes Court is one of the specialized divisions set up in the
High Court to try the commanders of the LRA and other rebel groups, who
have violated human rights during the insurgency” (Nsambu, 2010).
Secondly, the President of the (ICC), Sang-Hyung Song during his visit to
Uganda said that “the court would complement the efforts of the International
Criminal Court at the Hague, whose objectives are to put an end to the impu-
4
nity of some leaders and to ensure that those who commit crimes and atrocities against humanity are brought to book”.
Thirdly, there is the objective of demonstrating Uganda’s willingness and ability to carry out its primary and international treaty obligation to investigate and
prosecute perpetrators of war crimes and other human rights violations as
mandated by the Rome Statute to which Uganda is a state party. This theory is
closely related to the one that suggests that the court was established in a bid to
have the ICC drop arrest warrants against LRA top leaders (Ssenyojo, 2005)
and probably subsequent arrests of state actors.
Given that the government soldiers are also alleged to have committed war
crimes. The War Crimes Court was established to try the LRA and any other
individuals that committed crimes during insurgency exclusively; this has generated controversy and disagreements among different people who criticized
the Court and its activities. Kagumire (2008) wrote about the controversy,
doubts, credibility and purpose of the War Crimes Court and referred to Amnesty International’s Report released in March 2008, criticizing the exclusion of
Uganda government soldiers from the court’s jurisdiction. Part of the report is
quoted to have stated that “the international crimes committed by armed forces shouldn’t be tried by military courts since they took place during the conflict
(...) you can’t try crimes committed by parties in conflict in different courts”.
Alaka, Joseph Kony’s lawyer stated that: “(...) the court should try the Ugandan
army officers as well, and not just the LRA. He is quoted by Kagumire (2008),
to have said “there are two parties in the conflict (...) if it is to be regarded as
the War Crimes Court and to be fair; it must cut across all parties. You can’t
say [Ugandan] officers implicated will be tried by the military court.” The reason for the above principle is based on principle of equal treatment of all persons before the law.
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1.4 RELEVANCE AND JUSTIFICATION
The War Crimes Division Court was specifically said to be one of the
achievements that came out after the two year peace negotiations between the
government of Uganda and the Lord’s Resistance Army (Kagumire, 2010).
There is therefore need to enquire into the views of the stakeholders on its role
and activities.
Since its establishment and operationalization in 2008, not much has been
researched on its functions, activities and view of the people about the establishment of the Court. It is upon that ground that I am inclined to explore the
functions of the Court, the views of different stake-holders on the establishment and functioning of the court and the extent to which the court has added
value, if any, to the already existing traditional criminal justice systems.
The views of the people about the role and activities of the War Crimes
Court will help researcher to generate recommendations to stakeholders.
This paper will contribute to the field of human rights theories of legal
processes in conflict resolution literature as well as to the literature of international human rights bodies, human rights authors in international human
rights, specifically with regards to international criminal and humanitarian laws;
by adding to the existing literature.
My professional background as a lawyer and personal interest in issues of
human rights and justice inspired me to look in study post war conflict Northern Uganda so as to bring out tensions between legal and traditional means and
end of justice with a view of contributing to policy formulations by coming up
with recommendations to government, policy makers and other stake holders,
such as international community; about the most desirable venture of redress
for post war conflict victims of Northern Uganda.
1.5 RESEARCH OBJECTIVES
To find out how people in Uganda, especially the stake holders in the War
Crimes Court, view the contribution of the Court.
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To find out, whether the War Crimes Court represents a rights-based response
to the crimes and human rights violations that were committed during the war
in Northern Uganda, and whether it can provide adequate remedies to victims.
1.6 MAIN RESEARCH QUESTION
Do stakeholders in post-war conflict Northern Uganda view the War Crimes
Court and does it contribute effectively towards providing a rights-based response to the crimes and human rights violations that were committed in
Northern Uganda between 1987 and 2005?
Sub questions;
1. Why and how was the War Crimes Court established?
2. How do relevant actors view the establishment of the War Crimes Court?
3. Is the War Crimes Court a rights-based response to the war crimes and
human rights violations committed during the war in Northern Uganda?
4. Do stakeholders view the practice of the War Crimes Court as contributing towards a rights-based response (e.g. in terms of impartiality, accessibility, reliability in providing remedies and adequacy of remedies)?
1.7 THE SCOPE OF STUDY
The study covers the geographical area of Northern Uganda which comprises
the districts of Gulu, Amuru, Kitgum, and Lira among others. The time period
covered in the study is from 1987 to 2011. The study concentrates most on the
views of the victims on the War Crimes Court and its activities in Northern
Uganda.
1.8 METHODOLOGY
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This paragraph gives an account of how the study was designed and executed.
It discusses how the respondents were grouped and selected, it presents the
data collection, process and analysis, the geographical area covered and finally
it takes a look at the various problems that were encountered and how the researcher attempted to minimise those problems.
The researcher used a cross sectional survey design basing on the use of qualitative and quantitative approaches that were used to investigate the war crimes
and human rights violations committed in Northern Uganda; the views of the
people on the activities of the War Crimes Court.
The researcher attended the first session of the ICD court in Gulu and interviewed court officials and key informants (see Annex B). A set of questionnaires as used to collect information from victims and people of Northern
Uganda.
1.8.1 Population of Study
The target population was 172 respondents drawn from a population of 210
magistrates, judges, lawyers, registrars, members of Acholi Religious Leaders’
Initiative (ARLI), local government leaders, and members of the community.
Table 1.1 shows the details.
1.8.2 Sampling Techniques
Sampling was carried out in the various categories as shown in Table1.1 above.
All categories with population of 20 or below a complete census were carried
out- the researcher had intended higher numbers to constitute a census for
each category. For the category of local governance a purposive sampling was
done and only the people deemed to be “information rich” with the relevant
information were sampled. A total of 44 samples were made. For the category
of the community and rehabilitation groups simple random sampling was
done.
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1.8.3 Data Collection Methods and Instruments
The researcher collected both qualitative and quantitative information
using a combination of research methods and tools as shown in table
1.2 (Appendix A) in order to come up with accurate information.
1.8.4.1 Secondary Data:
(i)
Literature Review
The researcher visited the ISS library to access the already existing literature
related to the subject. The literature review included scholarly journals, text
books, government reports and records, reports of specialized non-state actors,
NGO reports, web sites and media publications.
(ii)
Desk Research
Secondary data from base line survey report of the WCC, publications of nongovernmental organisations and the Uganda legislations.
1.8.4.2
(i)
Primary Data:
Interviews
In depth interviews were administered on two court officials, a State Attorney,
a civil society expert, an NGO official, two people from the Acholi traditional
leadership and one victim who had lost his leg and lips.
Semi-structured interviews were administered on the one religious leader, one
government district leader, two civil society experts, and local leaders, two
members of women groups, accused person’s lawyers and another victim.
The researcher chose to carryout in-depth and semi-structured interviews on
mainly elites after conducting 98 questionnaire interviews with the victims.
This is because the researcher wanted to collect data ethnographically and also
relay the views of the people to the elites who are usually involved in policy
making, advocacy, capacity building and so forth.
(ii)
Questionnaires
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The researcher used structured and non- structured questions. Fifty of the respondents were given questionnaires and asked to answer them individually
while the other fifty respondents had the questionnaires administered to them
by the researcher and the research assistant who knew the local language.
During both the interview and questionnaire exercises, the researcher was interested in getting information related to the views of the people about the impartiality, accessibility, remedies provided by the court and adequacy of the
remedies as the indicators for measuring the views of people about the activities of the War Crimes Court. This enabled the researcher to gauge if the War
Crimes Court is an adequate rights-based response to the human rights violations and crimes committed during the war in Northern Uganda.
(iii)
Observations
Observation was used in the field to practically see and perceive the physical/practical situation of the court by visiting the court premises, accessing the
cause lists and attending court hearings and other related meetings. The researcher attended the stakeholders meeting and court both held on 11 July
2011 in Gulu, the stakeholders dialogue meeting held on 12 July 2011, the seminar on witness protection on 25 July 2011 and the Court of Appeal hearing on
the referrals by defence counsel.
(iv)
The respondents
The composition of the respondents and the variables considered during the
field research were as follows;
Table 1.1: in the appendix A, shows the age bracket of Respondents.
The majority; 40.8% of respondents were youths in the age range of 20 to 30
years. This was followed by a group of over 50 year old adults, constituting
18.4%. The 31 to 40 years age bracket formed 16.3% followed by the 41 to 50
years age group. Last but not least were the young adults of 20 years or younger age group. The figure below illustrates this.
Analysing a war that lasted 25 years means that youths and young adults were
either not born or still babies during the war. Therefore their participation in
some of the questions was limited. However, the responses of the 31-40 years,
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41-50 years and over 50 years age groups were considered to be more accurate
and some of them were interviewed for more detailed information.
.
Gender of Respondents
Table 1.2: Shows the gender of respondents. It should be noted that women
formed 51% of the respondents and men 49%.(….) This could mean that
women suffered more during the 25 year war and have come out to express
their feeling, opinions or redress due to the war. While men either fought (or
died), women were left behind with the children to face the cruelty of the war.
Most ended up in Internally Displaced Peoples’ Camps (IDPs) to even suffer
the bigger impact of the war due to food shortages and / or overcrowding with
eventual loss of confidentiality and control of the family.
Level of education of respondents
Table 1.3: Shows the Levels of Education of Respondents
%
45
40
35
30
25
20
15
10
5
0
%
Secondary
Primary
Tertiary
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Most of the respondents (40.8%) were secondary school leavers and
36.8% were primary school dropouts. Only 22.4% were tertiary or higher
education graduates. Table 1.3 shows the details. This could be interpreted
to mean that the war contributed to the low number of people joining tertiary and higher education levels in Northern Uganda. This is probably due
to the disruption of normal education life or inability to afford the costs of
tertiary and university level education.
(v)
Data Control Methods
Data control methods focused on the validity and reliability of the research
instruments. They are described hereunder. The researcher endeavoured to
attain validity and reliability correlation/ coefficients; of at least 0.7 or 70%
which are generally accepted in research (Kothari, 2010).
Validity is the extent to which research results can be accurately interpreted
and generalized to other populations. It is the extent to which research instruments measure what they intended to measure (Oso & Onen, 2005). To establish validity, the questionnaires were given to two experts to evaluate the relevance of each item in the instruments to the objectives. The experts rated each
item on the Likert- type scale: very relevant (4), quite relevant (3), somewhat
relevant (2), and not relevant (1). Validity was then determined using content
validity index (C.V.I).
C.V.I was determined by items rated 4 and 3 by both experts divided by the
total number of items in the questionnaire. C.V.I = 15/20 = 0.75. A C.V.I
of over 0.7 is accepted as good enough (C.R. Kothari, 2010).
Reliability is a measure of the extent to which research results are consistent
and the extent to which they can be replicated (Kothari, 2010). To ensure reliability, the researcher first took a pre-study on a small sample of the population
(4 respondents and 4 interviewees) using the methods and instruments enumerated for data collection before carrying out the actual mass research study.
This enabled the researcher to find out whether the methods selected were
suitable for the study and whether the instruments collected the required in-
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formation to reduce potential errors. In the case of interviews with rehabilitated victims, accuracy and consistency was ensured by using probing questions
so as to minimize the magnitude of unclear responses. Random selection of
interviewees and respondents helped to reduce the biases originating from extraneous factors and the researcher herself.
1.85
Data Analysis
The data analysis concentrated on descriptive statistics (frequency, central tendency, etc.) which presented results in tables and graphs for analysis. It included
the statistical or other techniques and the tools that were used in processing the
data. It also included an indication of the range of outcomes that were expected
from the observations.
1.86
Ethical Considerations
The researcher obtained oral access consent to conduct the research from authorities in the areas where the rehabilitation victims were working, and of
each respondent after full disclosure of the purpose, nature and benefits of the
study while allowing participants to ask any pertinent questions. Confidentiality
of information given was assured to the respondents.
The researcher also secured an introduction letter from the University (ISS)
which enabled her to get access to the different NGO and civil society organizations (see Annex D).
Challenges:
The researcher found the topic more sensitive than she had anticipated.
This is because most of the respondents were formerly abducted and forced to
commit crimes. They appeared to fear prosecutions and did not like discussing
issues about the War crimes Court, while those who had not been abducted
equally seemed not free to give their views. The fact that the trials officially
opened around the same time the researcher conducted her research made the
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topic more sensitive. However, the researcher overcame this challenge by assuring the respondents of confidentiality about their identities.
The challenges to and limitations of the study that the researcher encountered
were those of accessing the intended respondents. As stated above, the researcher went to the field during the time when the trials had just opened and
all the intended key informant respondents who in away were stake holders in
the trials were all busy with Stakeholders meetings, dialogue workshops, court
proceedings, trainings and seminars. This made the research costly in terms of
both time and finances. The researcher overcame the challenge by asking some
respondents to meet over a cup of coffee and at least four of them accepted.
The use of focus group discussion proved challenging to the researcher who
had earlier attended various meetings and observed the atmosphere and attitudes of different people during the seminars. The use of Focus Group Discussions was then abandoned. During the meetings and seminars, different
participants had the opportunity to express their views. As each one introduced him/herself before talking, the researcher realised that most of the vocal
members were former LRA rebels who spoke aggressively and very negatively
about the issues of accountability. Other participants expressed the concern
that some of their children are still in captivity of the LRA and that the criminal trials would discourage them from coming back home. The researcher
foresaw that this would intimidate other members of the FGD who would
have wanted to express a contrary view- given the fact that the homogeneous
groups of victims like women groups, formerly abducted seemed to hold differing opinions, it would defeat the purpose of FDGs which are about consensus, and the topic is quite sensitive especially in terms of security.
Language was one of the other challenges because some of the respondents
especially victims and the elderly in the local palace did not speak English. This
necessitated the researcher to employ the services of interpreters who helped
in translating from English to the local language and vice versa. This could
have brought in possible bias by the interpreter who also belonged to that
14
community and could have been affected by the conflict and depending on his
or her personal interest. To minimise that bias, the researcher always obtained
for clarity in case of doubt.
This could pose a challenge of some meaning being lost during the translation.
For example, the words “independence and impartial, accountability and reconciliation”, seemed to be confusing to some respondents, but these were explained to individual respondents. However, the researcher first tested the
questionnaire on four people before going to the field. Two of these spoke the
local language while the other two did not. This enabled the researcher to adjust some questions so as to get the required data. The research assistant who
translated the questionnaire is a court interpreter with relevant experience to
translate.
The recording device that the researcher had taken for use failed to record the
information effectively and this caused delay and consumed some time as the
interviews were then manually recorded by the researcher.
Accessing official reports and records did not pose many challenges especially
in government offices. This was only a problem with World Vision which was
not willing in any way to give any information to a student researcher. I travelled to the headquarters in Kampala to seek permission but I was not given
clearance. The person in-charge whom I had been referred to did not even give
me audience as she declined to see me. No reason was given for denial of access by the relevant person.
Inadequate finances also became a challenge because the cost of living in
Uganda had almost tripled. Transport, accommodation and food stuffs were so
costly and the field study took longer than expected due to some appointments
being postponed, the process of seeking permission and clearance, the respondents were busy with court activities. This was mitigated by the researcher
attending related court hearings and interviewing some respondents immedi-
15
ately after court, or meeting some respondents in a restaurant after office
times.
16
Chapter Two:
2.0
DEFINITIONS PRESENTED AND APPLIED
TO THE NORTHERN UGANDA WAR, AND
CONCEPTUAL FRAME WORK.
Key terms that feature throughout this paper and require definition are war
crimes, crimes against humanity and human rights violations. This chapter also
presents the main working concept used in this paper which is the Human
Rights-Based Approach. In addition, the notion of Legal Pluralism helps the
analysis of post conflict criminal justice mechanisms.
2.2 Essential definitions: War Crimes, Crimes against Humanity, Human Rights Violations and Victims.
The government of Uganda as a states party to international legal instruments
should apply all the available resources for the attainment of those rights
(UDHR, 1948 paragraph 6 to the preamble). Although the UDHR is not binding but rather persuasive, governments should protect the basic rights of their
citizens.
Although on the contrary, the government of Uganda which is a state party to most International legal instruments, is alleged to have participated in the
commission of war crimes and violations of human rights in Northern Uganda
by the acts of some of its military officials (Kasaija, 2005), it is still obliged at
this stage to carry out its primary obligation to exercise its national jurisdiction
over the perpetrators of the alleged war crimes and human rights violations
(Rome Statute, 2002: Preamble:6).
2.1.1. International Crimes
a. War Crimes
According to Meron, (1994) war crimes are crimes that are directly connected
with the existence of a situation of hostilities. Article 8 (2 a i-iv) of the International Criminal Court’s (Rome Statute, 2002), "war crimes" means Grave
17
breaches of the Geneva Conventions of 1949, namely; wilful killing; torture or
inhuman treatment, including biological experiments; wilfully causing great suffering, or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully
and wantonly. Based on the above, when in times of armed conflict wilful killing, torture or inhuman treatment, causing great suffering or injury to body or
health, destruction or appropriation of property take place, these are to be seen
as grave breaches to the Geneva conventions of 1949 constitute war crimes.
b. Crimes Against Humanity
According to Meron (1994), crimes against humanity “on the other hand
(…) exist independently of war (...). Oppenheim’s treatise by Jennings and
Watts for example, considers crimes against humanity as a self-contained category without the need for any formal link with war crimes.... crimes against
humanity may be committed before a war” (ibid).
For Kasaija (2005:398), “crimes against humanity have been described variously as acts that trample underfoot the laws of God and humanity”.
Article 7(1a-k) of the Rome Statute defines- crimes against humanity to include, but not be limited to, murder, extermination, enslavement, deportation
and forcible transfer of the population, torture, rape, sexual slavery, enforced
prostitution, forced pregnancy, intentionally causing great suffering or intentionally causing serious injury to body or to mental or physical health. According to the Article, these acts must have been committed as part of a wide
spread or systematic attack directed against any civilian population, with
knowledge of the attack.
According to Senyonjo (2005:412-413), while writing about the post conflict
situation and accountability issues in Northern Uganda, “the alleged crimes
being committed in the region (e.g. conscription or enlisting of children under
fifteen years in to the army, wilful killing, rape, sexual slavery, forced pregnancy
and forced displacement of civilians) may constitute crimes against humanity
18
(under article 7 of the Rome Statute) and/or war crimes (under article 8 of the
Rome Statute).
c.
International Crimes in Uganda’s Legal System and Uganda’s international obligations
In 2010, Uganda enacted an ICC Act and according to Section 2 of the Act,
“the purpose of this Act is to implement obligations assumed by Uganda under
the (Rome) Statute.” The said Act adopted the Rome Statue definitions of
crimes against humanity and war crimes in s. 8(2) and s. 9(2) of the ICC Act
respectively.
Section 2(1) of the ICC Act, Laws of Uganda defines “crime” to include; genocide, crimes against humanity, war crimes and crimes of aggression. Sections
8(3) and 9(3) provide that the penalties for a crime against humanity and a war
crime are imprisonment for life or a lessor time. The implication of these provisions is that the victims of Northern Uganda see no other remedy than that
of the imprisonment of the accused persons. This could bring about satisfaction to some of the victims and international community in terms of seeing
justice being done by bringing the perpetrators to accountability and bringing
an end to impunity. However, unlike the ICC which has a trust fund for reparation for victims, the War Crimes Court of Uganda does not have such possibility and thus is limited in the scope of remedies that it can award.
According to the Rome Statute, the obligations of a state party as out-lined in
the preamble to the Rome Statute include; ensuring that the most serious
crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking
measures at the national level; should be determined to put an end to impunity
for the perpetrators of these crimes and thus to contribute to prevention of
such crimes; to exercise its criminal jurisdiction over those responsible for international crimes.
19
2.1.2. Human Rights Violations
The Universal Declaration of Human Rights (UDHR) (1948), generally provided for rights and obligations of both states and individuals. It provided for
categories of rights that should be enjoyed by citizens and individuals. It also
conferred the obligation of respecting, protecting and promotion of those
rights on all states. The Geneva Conventions I, II, and III are specifically to
regulate conduct of states and individuals during armed conflict. The conventions emphasise respect for human rights and dignity of persons during hostilities.
Article 3 (1a-c), (Geneva Convention I, 1949), provides that persons taking no
active part in hostilities (…) shall in all circumstances be treated humanely (…).
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above mentioned persons: a. violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture; b. taking of hostages; c. outrage upon personal dignity,
in particular humiliating and degrading treatment.” The article provides for
conflicts that are not of an international character and is within a territory and
by implication binds any party to the conflict whether it is a contracting party
or not and whether it is a state actor or a non-state actor.
Although the above article does not expressly define what ‘Human Rights Violation’ is, by implication, violation of provisions under article 3 (1a-c) of Geneva Convention I amounts to Human Rights Violations in the context of armed
conflict.
Although the conventions do not provide for consequences of violations by a
violating party or non-party, the development of international criminal law has
provided for enforcement mechanisms of the cited conventions. The international Court of Justice (ICJ) deals with cases between and among states while
the International Criminal Court (ICC) deals with cases of individual criminal
responsibility. This has come with the notion of accountability; which other
than the ICJ and ICC has also brought about the establishment of hybrid tribunals like the International Criminal Tribunal for Former Yugoslavia (ICTY),
20
International Criminal Tribunal for Rwanda (ICTR) alongside the earlier Nuremberg tribunal.
The Uganda National Reconciliation Bill, 2009 provides for: the creation of a
National Forum to recommend reparation measures to victims of human
rights violations; refer appropriate cases to alternative justice mechanisms;
make recommendations for measures to prevent the future violations of human rights (...). It defines human rights violations as “(...) gross violations of
human rights perpetrated by state actors, including groups or individuals not
officially affiliated with the state but under its de facto control”.
Then it defines human rights abuses as (...) gross violations of human rights
perpetrated by non-state actors.” The Bill refers to human rights violations by
both state and non-state actors and does not expressly impose any obligations
on the violators but rather; just provides for establishment of the National
Reconciliation Forum mandated to direct an independent reconciliation process for purposes of establishing the causes, nature and extent of the legacy of
violence, among others.
In the context of Northern Uganda, the war was waged by both state and nonstate actors. Both are alleged to have committed war crimes and human rights
violations against the people of Northern Uganda. For example, Kasaija
(2005:402) wrote that some international human rights and humanitarian organisations accused the Ugandan government army of recruiting children in to
the government army and use them to fight the LRA. This in itself would a
contravention on the Convention on the Rights of the Child (article 38 (2)),
and the Optional Protocol thereto, which under article 1 provides for the age
of 18 as the minimum age for recruitment of persons to be involved in armed
conflict.
Uganda, ratified both the CRC and the Optional Protocol thereto, but is alleged to have been involved in recruitment of children below the age of 16 in
to the army. During a field interviews with one of the key informants informed
me that sometimes the army did not hand over all the rescued children to the
children’s rehabilitation centres because the army needed the children to show
21
them the routes to the LRA. So such were recruited in to the government army
and remained there.
Kasaija (2005:404) wrote that “The UPDF has perennially been accused of
committing rapes and sexual attacks against the women of Northern Uganda.”
He laid out different incidences as reported by the Human Rights Watch
(2003) and the Refugee Law Project (2004), according to which, the UPDF was
involved in cases of rapes of girls and women in Northern Uganda.
It is clear from the literature that so many categories of war crimes, crimes
against humanity and human rights violations were committed on the people
of Northern Uganda by state actors as well.
Although clearly a range of actors were involved, the state had the primary duty to respect, protect and fulfil the human rights of its citizens by at least
providing and ensuring security to the persons involved and their property.
1.2.3. Victims
The international legal instruments do not define the word “victim”. However, the definition can be drawn from other sources. According to an internet
source (Theoretical Perspectives of Victimology, 2003), “The legal definition of
"victim" typically includes the following: A person who has suffered direct, or
threatened, physical, emotional or pecuniary harm as a result of the commission of a crime;(…).” Under the Juba Agreement on Accountability and Reconciliation (2007:2), “victims” means persons who individually or collectively
have adversely suffered harm as a consequence of crimes and human rights
violations committed during the conflict.
The National Reconciliation Bill,( 2009:5), also defines victims as “persons or
groups affected directly or indirectly as a result of a grave human rights violation or abuses resulting in either physical or mental injury, emotional affliction,
or pecuniary loss.”
In practice, most of the population in Northern Uganda was affected directly
or indirectly by the conflict and therefore fit within the above definitions of
“victim”. According to my field findings, 90% of the questionnaire respond-
22
ents of a sample population of 98 people answered that they were directly affected and 8% responded that they were indirectly affected by the conflict.
2.2. Human Rights Based Approach to the Delivery of PostWar Justice.
A Human Rights-Based Approach (HRBA) flows from a concept that emerged
during the 1990s within the UN system as a response to addressing development failures of the structural adjustment era (Mac & Amparo, 2005:472). According to the same authors (ibid:483), “ a rights-based approach has come to
mean different things to different people, depending upon thematic focus, disciplinary bias and the external, political, social and cultural environment.” Indeed, different international human rights organizations adopt different principles and criteria under the guise of a rights-based approach. For example,
Oxfam America, CARE International, UNHCHR, OHCHR, DFID and other
international organizations have developed different frameworks for implementing a HRBA to development (Marks, 2002).
According to DFID, as quoted in Marks (2002:28): “(...) a human rights
approach to development is one that puts people first and promotes human
centred development, recognizes the inherent dignity of every human being
without distinction, recognizes and promotes equality for all (...) .” the United
Nations Office of the High Commissioner for Human Rights (OHCHR,
2006:15) on the other hand defined a HRBA to development as “a conceptual
frame work for the process of human development that is normatively based
on international human rights international human rights standards and operationally directed to promoting and protecting human rights.”
Although a number of HRBA principles were advanced and are practised
by different International Organizations, for the purposes of this paper; the
researcher will particularly focus on accountability, empowerment and participation. These principles derive from the obligations of duty bearers to protect,
promote and fulfil rights. In most cases, duty bearers are states but in the recent decades, some human rights instruments have come to apply even to nonstate actors.
23
Under articles 2 of the ICCPR and ICESCR, by implication, a state party
has the primary duty to respect, protect and fulfil human rights and in case of a
violation by the state or state agent.
As Mac and Amparo (2005:484&487), wrote, “it is essential that the integrity and substantive content of human rights be preserved in whatever policy
or operational context one seems to incorporate them (...) what a rights-based
approach encourages is strengthened rationality, principle and objectivity in
development policy and decision making. Its objectivity is based on the existence of transparent publicly endorsed human rights norms with a strong claim
to universality.” This draws us to the rationale for the development of the
HRBA.
One would reasonably ask, what value added has a HRBA to development
as a whole? Again, Mac & Amparo (ibid: 485), outline some of the comparative
advantages of a HRBA. These include among others a ready legal means to
secure redress for violations and a secure basis for accountability, not only for
the state party concerned, but also for a significantly wider range of actors in
international development cooperation. The HRBA principles should be applied to both state and non-state actors who should be made accountable for
the crimes committed in Northern Uganda.
In the case of Northern Uganda, the population has suffered effects of
war in the hands of both the state and non state actors for over twenty years
and, there have been so many human rights violations ranging from killing of
innocent civilians, rape, destruction of property, mutilation, child abduction
and slavery and many more crimes(Ssenyonjo, 2005:411). In a situation like
that of Northern Uganda, there is a need to bring to book the perpetrators of
those atrocities and this requires the empowerment of victims in order to enable them effectively participate in the accountability processes.
Although legal mechanisms may be very important and useful, human
rights should be viewed as open-textured and flexible as well as capable of being applied in diverse circumstances and in ways not limited to adjudication in
established courts(Mac & Amparo, 2005). I agree with the above authors’
(Ibid: 487) argument to the extent that “Accountability can be realised through
24
many other avenues and mechanisms including monitoring, reporting, public
debate, and greater citizen participation in public service delivery.” However,
the above authors were focussing on accountability in terms of development
cooperation in this case. This then intrigues me to argue that in cases of crimes
and human rights violations, mere monitoring, reporting and public debates
may not serve the intended meaning of accountability in that context. There is
a need to have effective prosecutions and have the victims participate and get
meaningful redress.
On the other hand, given the fact that the human rights issues in the post- war
conflict in northern Uganda are diverse, ranging from loss of lives, property,
livelihood, rape and forced pregnancies and abductions and forced recruitment
into the militia (creating a group that is seen as both victim and offender),
there is a need to have the formal legal mechanisms flexible as well as provide
for many other avenues and mechanisms especially greater participation by the
victims towards realising meaningful and sustainable redress.
Further still, the need for accountability by both state and non-state actors,
empowerment and participation by the victims is emphasized by international
legal instruments, national legislations and some authors as elaborated below;
According to the UN publication on HRBA to Development Cooperation (2006:17), “ A human rights-based approach helps to formulate policy,
legislation, regulations and budgets that clearly determine the particular human
right(s) to be addressed- what must be done and to what standard, who is accountable (...) ensuring effective remedies where rights are violated.” In that
regard, effective remedies are those remedies that relevantly address peoples’
needs.
Fortman (2006:45) pointed out that a core notion of implementing a
rights-based approach is accountability, meaning that “institutions and persons
exercising power (actors in other words) become duty bearers.” Therefore the
duty bearers who include both state and non-state actors should always be accountable for their acts. As pointed out by Nyamu-Musembi (2005:42), “A
rights-based approach adds an element of accountability and culpability.”
25
Ssenyonjo (2005:428) also wrote that “Accountability is an essential element in the observance of human rights. It demands that those who violate
human rights must not do so with impunity, whether that impunity is conferred by law or otherwise. Such individuals must be prosecuted and punished.” The same author (ibid.: 426), while referring to a decided case about
Polish Nationals in Danzig [PCIJ, Series A/B, No. 44 (1931) at 24 stated that
“this follows from a well-established principle of International law that a state
cannot invoke their domestic legal system-internal laws and procedures- (such
as Uganda’s Amnesty Act) as justification for not complying with international
treaty obligations (such as the obligation to prosecute arising under the ICC
statute.”
In the Free Zones case (PCIJ, Series A/B, no.46, at 167, the court stated
that ‘it is certain that France cannot rely on her own legislation to limit the
scope of her international obligations. According to Werle, (2005:63) “the duty
to prosecute follows from the duty of states to guarantee human rights and
ensure effective legal protection.”
Article 8.2 to the Juba Peace Agreement and Accountability (2007:7) provides that “The Government shall promote the effective and meaningful participation of victims in accountability and reconciliation proceedings, consistently with the rights of the other parties in the proceedings. Victims shall be
informed of the processes and any decisions affecting their interests.” A
HRBA to post-war justice procedures in Uganda thus necessitates victim participation. However, the Juba Peace Agreement does not go ahead to clearly
spell out how victims can meaningfully and effectively participate in accountability and reconciliation processes. However, the “international focus on accountability has led to transitional justice mechanisms in a number of post
conflict situations”, (Arts, 2006:54). In the case of Uganda, both formal and
informal justice mechanisms of accountability have been provided for in the
Juba Peace Agreement on Accountability and Reconciliation (2007:3.2.1).
According to Arts, (ibid: 54), “children have become participants as victims and witnesses, both in judicial and in non-judicial post conflict truth and
justice seeking processes.” While Arts focused on children as victims, it is rewarding to borrow from her writings the ways through which victims can par26
ticipate in Accountability and Reconciliation processes. These ways include
coming up as a victim, giving testimony and telling the truth of the account of
their experiences. In addition to that, in the case of adult victims, their views
on how best the post-conflict issues can be addressed should be taken into account.
As Maiese, (2003:2) pointed out, “Peoples judgement of procedural fairness, result from the perceptions that they have been treated honestly, openly
and with consideration. If they believe that the authority took their view-points
into account and tried to treat them fairly, they are more likely to engage in the
broader social system.” This implies that in both formal and non formal justice
processes, victims’ views and participation should be regarded if meaningful
redress is to be attained.
2.3
Legal Pluralism:
Generally speaking, legal pluralism is a concept used to mean the co-
existence of both formal and informal justice processes and national application of legal mechanisms to different groups of people e.g. based on religion,
ethnicity or tribe in a given society or state for that matter. In African contexts,
legal pluralism is a dominant phenomenon where traditional/customary, religious, state and international legal systems co-exist and operate. Different
authors who have written about legal pluralism have come up with interesting
definitions of the concept. According to Merry (1988:871), “ a legal system is
pluralistic in the juristic sense when the sovereign commands different bodies
of law for different groups of the population varying by ethnicity, religion,
nationality or geography and when the parallel legal regimes are all dependent
on the state legal system.”
Uganda’s law provides for various mechanisms for post-war conflict
redress. Most of these mechanisms are spelt out in the Juba Peace Agreement
on Accountability and Reconciliation. The Agreement provides for the
establishment and application of both formal and informal mechanisms of
redress. These include; Amnesty, the War Crimes Court, National
Reconciliation Act and traditional justice mechanisms.
27
In addition to the above, another effect of the Agreement on
Accountability between the government of Uganda and the LRA are; the
maitanace of the traditional criminal courts and the military courts to try the
state actors perpetrators, as opposed the creation of the War Crimes Court to
exclusively try the LRA perpetrators and other rebel groups
As a state party, Uganda is also obliged to apply relevant international legal
instruments; like the Rome Statute, the Geneva Conventions I, II and III of
1949, the Convention on Rights of a Child, among others.
Currently as a result, the issue of post war conflict Northern Uganda is
faced with the notion of legal pluralism. There is application of international
criminal law (the Rome Statute – which Uganda domesticated in 2010 through
the ICC Bill, the Geneva Conventions, the UNCRC in case of children’s
rights, the national laws of Uganda (the Constitution, the Penal Code Act and
Criminal Procedure laws of Uganda and the Amnesty Act) and to an extent,
customary laws like mato oput and others suggested in the Agreement on
Accountability and Reconciliation.
All the above systems apply to different actors in the conflict and in
accordance to their level of participation. For example, the International
Criminal Court issued warrants for arrest to the top five LRA rebel leaders in
2003, in 2008 the government of Uganda drawing from the Agreement on
Accountability and Reconciliation, established the War Crimes Court to try
other LRA perpetrators of war crimes and human rights violations, by applying
traditional national criminal laws like the Penal Code Act and criminal
procedures thereunder and the military law to try ‘some’ of the state actors,
blanket amnesty law and support for traditional justice systems like (“Ailuc” for
the Iteso, “Kayo Cuk” for the Langi, “Mato Oput” for the Acholi and “Tonu ci
Koka” for the Madi).
There are quite a number of challenges associated with legal pluralism. To
begin with, the difference in thinking and perceptions of victims and
stakeholders has drawn both positive and negative criticisms of legal pluralism
from different stakeholders who include victims, perpetrators, government,
civil society, traditional, religiuos and political leaders as well as the
28
international community. All these views are influenced by different motives
and interests driven by different needs, ideologies and creed. Such a situation
has surrounded the establishment of the War Crimes Court and some have
raised sceptism and have questioned the adequacy and relaibility of the War
Crimes Court in addressing the war crimes and human rights violations
perpetrated in Northern Uganda while others have welcomed the court and
expect meaningful redress from the court.
Although most of the above justice mechanisms are aimed at
accountability and reconciliation, not all of them can bring an end to impunity
- which is a rationale for accountability. In terms of international justice,
accountability should be aimed at ending impunity and should be clearly
deterrent in nature.
Customary law in Uganda is not uniform and is not written down.
Forexample, as Oomen and Marchand (2007) wrote, the Acholi Criminal
Justice system is not written down and the principles of the culture have been
orally passed on generations. Likewise, none of the tribes in Uganda that were
affected by the war conflict have an explicit writen custom so as to qualify it as
a universally recognized custom in a given society.
However, as Merry (1988) points out, there are some complex legal
problems associated with legal pluralism. These include “ (...) the need to
decide when a sub – group’s law applies to a particular transaction or conflict,
to what group particular individuals belong, how a person can change which
law is applicable to him or her.” This has made the whole issue of
accountability in Northern Uganda situation more complex than anticipated.
2.4.
Who is Speaking for Who on Issues of Redress in Post War
Conflict Northern Uganda?
Although this is not one of my research questions, the data that I collected
presented quite a different view from the information that I had prior to going
to the field. Before going to the field, I had information from literature and
media that the post-war conflict victims of Northern Uganda prefer
informal traditional justice mechanisms to criminal trials. captivated my
attention and intrigued me to explore further into that notion.
29
While I found out that different views and interests in post-conflict
mechanisms of redress; are held by different stake - holders coupled with the
popularity and unpopularity of different justice mechanisms or a combination
of some, I am much more interested in establishing the interest of the victims
and their reasons behind their interests and those of other stake holders as well
as their driving force. My field findings point to the fact that the popular view
that the victims of post war conflict Northern Uganda prefer traditional justice
mechanisms to formal justice mechanisms may not necessarily be true.
Although the Juba Peace Agreement on Accountability and Reconciliation
which was between the government of Uganda and the LRA is claimed to have
represented the views of the people through religious, traditional and political
leaders, there does not seem to have been meaningful participation of the
victims in the process. this should have been the case. The agreement provided
for an Amnesty Law, and formal and non formal justice systems. As Oomen
and Marchand (2007: 170-171) wrote:
following years of activism by Acholi religious and traditional leaders and
civil society groups, the government of Uganda enacted the Ugandan
Amnesty Act in 2000, initially with the enthusiastic support of the
internally displaced people…in the eyes of many internally displaced
people (IDP), the painful aspect of the Amnesty Act is its narrow focus
on the perpetrators. The Act is an agreement between the government
and the rebels restricting the space for communuity involvement in the
process.
According to the same authors (Oomen & Marchand), what hurts is that,
while the perpetrators of the gravest crimes against humanity are given
amnesty, the victims receive nothing from the government, not even an
apology, respect or confirmation of human dignity, let alone financial support
or compensation. I share the same position. The Amnesty Act was merely an
agreement between the Government of Uganda and the LRA rebels. There
was no meaningful victim participation in decision-making and the blanket
amnesty to the rebels does not consider any interest of the victims and does
not bring about accountability, let alone reconciliation as should be the case;
going by in the Accountability and Reconciliation Agreement. The purpose of
30
the agreement is therefore defeated as it seems to merely serves the political
interests of the government and the rebels. One of my key informants working
with Justice and Reconciliation Project in Gulu stated that the people who
suffered are not considered by the government, while the ex LRA rebels are
given iron sheets, household utencils and some financial assistance to start life
and they are walking scot free while the victims are left with injuries with no
assistance at all.
A victim whon I interviewed extensively pointed out that most of the
population in urban post-war conflict Gulu are former rebels who have been
empowered by government to the extent that some of them are alleged to be
working for high ranking government military officers in their farms. I
personally observed this during my field research as well.
Such perceptions have left victims suspicious, untrusting and helpless to
the extent that in such an atmosphere, they are not empowered to
meaningfully participate in the accountability and reconciliation processes
because of fear of how they might be treated by the community which is highly
composed of former rebels and politically motivated people.
With the existence of both formal and informal mechanisms to bring justice to the victims, different people hold different views about them. Some
people prefer traditional justice mechanisms. For example “when the Norwegian minister for development and human rights visited Northern Uganda, she
praised the traditional means of solving conflict currently advocated by the
leaders there...” (Dolan, 2009: 226). In addition, in their support for traditional
justice mechanisms rather than prosecution by the ICC, “...the majority of the
members hailing from Northern Uganda were of the view that the ICC should
be asked to step down (Hansard Uganda Parliament, 7 September 2006, as cited in Kasaija, 2008:805).
It is clear from the above that the views of the people in power for example the Members of Parliament in Uganda, the donors, traditional and religious
leaders tend to capture attention and influence majority more than those of the
victims. The advocates for traditional justice mechanisms, especially mato oput,
did not envisage the challenge with the application of the system. As the LC V
31
of Gulu district explained to me, the Northern Uganda war was so extensive
that people from different tribes were either victims or participants including
state actors. Mato oput is exclusively for Acholi people and so he wondered
how the system would cover actors who don’t subscribe to Acholi culture. To
him, mato oput would be more appropriate as a ritual for Acholis to receive
their tribesmen who were perpetrators after a meaningful accountability process.
Much as it has been popularly published and reported that the Northern
post war conflict can be resolved by amnesty and traditional justice mechanisms, there is also a different view from a group that prefers prosecution and
bringing impunity to an end, that is, the victims themselves. To them, there is
no peace without justice and there is no justice without accountability. This is
reflected on the statement of the victims working group on Uganda Peace
Talks of 2006 where they emphasized that victims’ rights must be respected
(Victims working group, 2006).
It is my view that in order to effectively address the issues of post war
conflict Northern Uganda, there is a need for empowerment of victims in order to enable them to meaningfully participate in the justice processes of accountability and reconciliation – which are key principles in the Human Rights
Based Approach. The perpetrators should be brought to justice and justice
should be brought to the victims. It is not enough to have the victims write
down their views and present to government and policy makers but have the
government do nothing about it, as it appears to have been the case during the
Peace talks of 2006 where the victims through their victims working group
presented their request but was not meaningfully considered (Victims Working
Group, 2006).
Unfortunately, the government of Uganda has not created and made effective such mechanisms as to facilitate effective and meaningful participation
of the victims of post-war conflict Northern Uganda (UVF, 2009:3). To date,
the government has no data bank containing the figures of victims who were
killed, abducted and recruited as child soldiers, women and girls who were sex-
32
ually abused, property lost, people who were forced into camps (Oomen &
Marchand, 2007:165). I believe that the question of empowerment and participation should commence with identification of victims.
For an HRBA to be said to be fully adopted, the approach should encompass
the elements of accountability, transparency, empowerment and participation
of victims. This may not be fully achieved without government will and commitment. The above elements enable the victims to participate and give views
that would best address an issue since they are ‘well informed’ about their
problems. For Uganda to be said to adopt a HRBA, she has to apply the all the
elements of HRBA
Chapter 3
3.1
The War Crimes Court: Record and Stakeholder’s
Views.
Back ground:
This chapter presents the analysis of the findings of the researcher that were
collected both qualitatively and quantitatively. The main research question of
the study is “Do victims in post war conflict Northern Uganda view the War
Crimes Court as contributing towards providing a rights-based response to the
crimes and human rights violations that were committed in Northern Uganda
between 1987 and 2005? The researcher will explore in to the theories on record and views of stakeholders about the establishment of the War Crimes
Court, its practice and role in providing a rights-based response to the war
crimes and human rights violations committed in Northern Uganda.
In looking at the record and assessing the views of the stakeholders in postconflict Northern Uganda, the researcher used a HRBA. These elements include; accountability, empowerment and participation. In so doing, the researcher also applied “impartiality, credibility, accessibility of the Court and
adequacy of remedies offered by the Court as the variables for assessing the
record and views of stakeholders
33
3.2 Why and How Was the War Crimes Court Established?
There are three main ideas about why and how the War Crimes Court was
established.
The first idea expressed by some is that the establishment of the War Crimes
Court was more politically motivated than justice motivated; Secondly, that
It was as a result of pressure from LRA indicted top officials who wanted the
warrants of arrests issued for them by ICC to be dropped and; thirdly that
Uganda’s exercise of her primary obligation to exercise her criminal jurisdiction
over those alleged to have committed crimes of international nature.
The establishment of the War Crimes Court was more politically motivated
than for justice reasons. It was established in 2008, as a result of the Juba Peace
Agreement of 2007 between the government of Uganda and the LRA.
On the face of it, any reasonable person would think that the War Crimes
Court was established as one of the mechanisms of bringing perpetrators of
war crimes and human rights violations in North and North-Eastern Uganda
to accountability. However, after critical analysis of the conditions under
which the Court was established, the legal frame work and the non- existing
government policies to enhance the effective functioning of the Court, it seems
to become highly plausible that the War Crimes Court was established for political rather than law and justice reasons.
This claim and view is shared by one of the respondents in the field whose
identity the researcher cannot disclose due to ethical reasons. His view was that
the fact that the government was a party to the conflict. The government has
granted amnesty and also given packages to the ex-rebels while the victims are
disregarded. To him, the Court would not deliver justice because it is selective
and may be influenced by government.
34
Some scholars have held the view that the War Crimes Court was established
as a result of pressure from LRA indicted top officials who wanted the arrest
warrants issued for them by the ICC to be dropped. According to Kasaija
(2008:805), “(...)as late as early September 2007, the LRA deputy leader is reported to have said that on behalf of the LRA, I want to state that I will not
sign any peace agreement in Juba which sends me to prison. I can only sign an
agreement that brings peace, not one that leads me to ICC.” The above scenario also supports the argument that the court was negotiated for political reasons.
The pressure from the LRA indicted officials coupled with the desperate
need for peace by the victims who were even willing to forego their rights for
the sake of peace, the argument of the members of Parliament, Hansard Uganda Parliament, (2006), mainly from Northern Uganda was that traditional justice mechanisms should be supported to deal with the problem and Kasaija
(2008:805) argued that “it is against this background that the government of
Uganda has joined the bandwagon of asking the ICC to step back”.
Accordingly, it appears that the establishment of the War Crimes Court
was to serve different interests which included that of defeating the execution
of the ICC arrest warrants against LRA top officials and that of subsequently
convincing the LRA to sign the peace agreement which was anticipated to
bring peace and security for the good of the victims in Northern Uganda as
well as Uganda as a state. All of this was rather for political gains (national security) rather than for the purpose of serving justice for the victims of Northern Uganda.
To support the argument that some view the establishment of the War
Crimes Court as politically motivated rather than providing justice for the victims, according to Clause 4.1 of Agenda Item 3 to the agreement, “formal
criminal and civil measures shall be applied to any individual who is alleged to
have committed serious crimes or human rights violations in the course of the
conflict. Provided that state actors shall be subjected to existing criminal justice
processes and not to special justice processes under this agreement”. This provision has been interpreted by many as discriminatory and selective and therefore making the whole process of accountability through the War Crimes
35
Court to bear an element of partiality. Many people argue that if the Court is to
be credible, impartial and reliable, then it should also try the state actors who
committed war crimes and human rights violations in Northern and NorthEastern Uganda and not only the LRA/M (Kagumire, 2008:3).
Although it is reasonable to believe that the establishment of the War
Crimes Court was in conformity with Uganda’s primary obligation to exercise
her criminal jurisdiction over those alleged to have committed crimes of great
concern to the international community, the reverse appears to be true. I.e. it
could have actually been established to shield perpetrators of war crimes from
prosecutions by the ICC which had shown interest. This is also because, the
current amnesty law of Uganda, makes trials of any perpetrators of war crimes
in Northern Uganda before the War Crimes Court impracticable. In July 2011,
the War Crimes Court commenced the trial of one of the LRA suspects
(Uganda v. Kwoyelo) who successfully challenged the constitutionality of his
trial. The Constitutional Court found the trial of the accused unconstitutional
and ordered the War Crimes Court to terminate the proceedings and release
the accused. Although the Attorney General of Uganda appealed the decision
of the Constitutional Court to the Supreme Court, there is no guarantee that
the position will change soon for as long as the amnesty law is not declared
unconstitutional and/or amended.
Section 3 of the High Court (International Crimes Division) Practice Directives 2011 which enhanced the jurisdiction of the War Crimes Court provides that “the division established in 2008 as the war crimes division is hereby
re-designated as the international crimes division.” Before the coming into
force of the said practice directives, two cases were tried by two different judges of the war crimes division and these were cases of human trafficking of
Ugandans to Iraq and cases of terrorism that involved bomb blasts that killed
Ugandans on 11 August 2010 while they were watching a foot ball match. Interestingly, the judge who handled the terrorism case ruled that he was sitting
as the judge of the High Court and not as a judge of the specialized war crimes
court while the one who heard the human trafficking case held the contrary
although both judges had been deployed as judges of the War Crimes Division
Court.
36
With the coming into force of the High Court (International Crimes Division) Practice Directions 2011, the name and jurisdiction of the War Crimes
Court changed and was enhanced respectively from the War Crimes Court to
the International Crimes Division. Its jurisdiction was enhanced to “...try any
offence relating to genocide, crimes against humanity, war crimes, terrorism,
human trafficking, piracy and any other international crime...” (S.6 High Court
Directives, 2011).
The International Crimes Division Court (ICDC) which was stopped by
the Constitutional Court ruling from trying the former LRA rebel captured in
combat, is now trying terrorism suspects as well as suspects of human trafficking. According to the State Attorney who is also head of the ICD Unit in the
DPP, there are many suspects of war crimes committed in Northern Uganda
who are to be formally charged in court for war crimes. With the declaration
by the Constitutional Court; that trials of former rebels are unconstitutional if
they apply for amnesty, there seems to be no future for redress for victims of
war crimes in Northern Uganda.
It is not surprising that the name and jurisdiction of the Court were
changed. One would wonder if the change in names and jurisdiction of the
court are not calculated to keep the Court relevant even when it does not serve
the original purpose for which it was established. This view is illustrated by the
fact that while it was clear that the activities of the War Crimes Court could be
affected by the amnesty law, the government went ahead to establish the
Court. Subsequently legislation was made to widen the jurisdiction of the
Court.
However, in its functions and activities, the ICDC, has faced so many
challenges which include the loopholes in the domestic laws ( Sections 2&3,
Amnesty Act 2000), absence of national policies to enhance the activities of the
Court (UVF, 2009), society’s negative views (Kagumire, 2008), limited resources and limited information about the activities of the Court (Registrar,
ICD, 2011). The Amnesty Act, which is a result of the Juba Peace Agreement,
provides to the effect that only rebels whose names have been gazetted by the
minister of justice through a legal notice are not eligible to be granted amnesty.
If there is not any such gazette, that means that no perpetrator can be tried by
37
the ICD and if the Supreme Court does not declare the amnesty Act unconstitutional then the perpetrators of war crimes in Northern Uganda may not be
brought to justice and justice will not be brought to victims.
Uganda ratified the Geneva Conventions, the Rome statute and other core
international legal instruments and has some obligations to fulfil in that regard.
Uganda should not facilitate the commission of war crimes with impunity by
sacrificing the rights of its citizens for national security.
Uganda is said to have a more advanced criminal system compared to other African countries. Given that background, the War Crimes Court, if enabled
by appropriate legislation could serve as an international crimes division court
as the name suggests. According to Schabas (2008:3) cited in Kasaija
(2008:805), “...Uganda has one of Africa’s better criminal justice systems, and
that its courts are more than able to prosecute the leaders of the LRA.” But the
judiciary on its own, especially one based on common law principles cannot
prosecute the perpetrators. But its effective functioning depends on the cooperation by the police to arrest and the Directorate of Public Prosecutions to
prosecute.
It was also my observation in the Court hearings as well as reference to
the Laws applicable in comparison with the amnesty Act (2000, laws of Uganda), that while accused was standing trial, the Uganda criminal justice system
was also being put to ‘trial’.
Irrespective of the reasons that were taken in to account when the War
Crimes Court was established, it should be recognized that the War Crimes
Court is picking up relevance to a group who want to see justice in the form of
prosecution of offenders of war crimes, and human rights violations committed against the people of Northern Uganda, terrorism suspects and suspects of
human trafficking in Uganda. Many victims have come up as witnesses and
complainants and according to DPP, there are more suspects to be charged in
the War Crimes Court. The court can also be of relevance to other neighbouring countries that suffered conflict situations like Southern Sudan. The Court
should be given time and support to improve its role and functions.
38
Although it is still a young court, it has potential to contribute towards addressing war crimes and human rights violations if, it is enabled to exercise its
role and functions. Its contribution would be fully realized if the court were
logistically empowered to award and give remedies of reparation to the victims
rather than just hearing and determining cases brought before it. This would of
course require the establishment of a trust fund for the victims.
In my view, the appropriate way to go at the moment should be the
grooming of the ICD alongside the already existing ICC. Some people support
the complimentarity role to domestic Courts that ICC plays because they don’t
trust the credibility, integrity and impartiality of domestic Courts. Like some
have already commented, domestic jurisdictions can succumb to political influence compared to the ICC (Nouwen & Werner, 2011).
3.2 How Do Relevant Actors View the Establishment of the War Crimes
Court?
At the time of establishment of the Court in 2008, one would anticipate
that the perpetrators of the war crimes in Northern Uganda would be brought
to account for the crimes and human rights violations they committed on the
population of Northern Uganda. To the contrary however, various people had
different views on the establishment and activities of the War Crimes Court
especially their suspicions that the Court was selective in its trials and justice.
In that it was basically established to try the LRA and other rebel groups and
not the state actors who also took part in the war and committed war crimes
and human rights violations.
In line with the above fears, Lawino, ( 2009), wrote “ Civil society groups
on Monday made a call for the Judiciary to extend the mandate of its recently
established Special Division of the War Crimes Court, to try all suspects including elements within the Uganda People’s Defence Forces (UPDF) (...) But
human rights activists and local leaders are irked by the provision that denies
the Court mandate over some UPDF soldiers also accused of maiming and
killing hapless people during the two decade conflict in Northern Uganda.”
39
Much as the establishment of the War Crimes Court is considered as one
of the achievements of the Juba Peace Agreement between the government of
Uganda and the LRA, for the Court to earn respect and successfully address
war crimes committed in Northern Uganda, the Court must consider trying
both sides that participated in the war, that is, the LRA and the state actors
(Kagumire, 2008).
When the Court had its first trial, a good number of people welcomed and
supported it. This is supported by the fact that so many victims came up as
witnesses, some NGOs (Caritas) offered to provide counselling services to the
victims, others provided outreaches in a view to provide information to the
victims about the Court. However different stake holders had different views
when interviewed. Some were happy about the establishment of the Court as
government commitment to the peace agreement but rather held scepticism
about the selective trials but were not quick to make conclusions in that regard.
Views on the mandate of the Court;
The Court is mandated to try war crimes and other crimes of international
nature. Although the Practice Directives issued by the Chief Justice of Uganda
imply that the Court’s criminal jurisdiction is unlimited, the fact that it cannot
try state actors limits its jurisdiction. Despite that fact, many people welcomed
the Court; For example, a retired bishop said that he was happy that the ICD
had practically kick started and that it demonstrated government’s commitment to ending impunity. He said:
“ if perpetrators are tried locally by the ICD, then the negative picture
which some people hold – that the ICC is focused on Africa - would be down
played since the trials would be conducted by the Africans themselves.” On
another note, the retired bishop also said that “the problem lies with the African sitting presidents who will do anything to keep themselves in power”.
This is a solid statement which points to the possibility of such leaders
manipulating the existing judicial system which is meant to check executive
power-especially in matters of war crimes and human rights violations commit40
ted during internal conflicts which in most cases involves more than one actor
and including state actors who are sitting presidents. This is already an issue in
Uganda where some members of the public doubt the impartiality of the War
Crimes Court because, to them, the Court appears to be trying only LRA excombatants only while there were also state actors.
However, his view holds weight to the extent that holding trials in Africa and
in particularly Uganda would give the war victims the satisfaction of being able
to testify against their perpetrator, participate in the trials to their conclusions
and even seeing the accused in the dock. in the long run they would probably
be awarded a remedy like compensation which could be met by government.
This would be seen as justice by the victims who feel and believe that being
imprisoned in The Hague is like living in a hotel as opposed to Ugandan prisons.
This is a challenge to the Court because it does not have the mandate to
carry out investigations and to arrest and prosecute an accused. The issue of
investigations lies with the police and the issue of preference of charges and
prosecutions against an accused also lies within the discretion of The
Directorate of Public Prosecutions which all act independently from the Court.
The Court’s mandate is limited to hearing and determining cases that have
been brought before it.
During the stakeholders meeting organized by the Court, the judges
responded to the issue of the Court being seen as partial in selective
prosecutions and the judges’ response was that they are very ready and willing
to try anyone who is brought before the Court and that the Court would
deliver justice. One would draw from this that the Court is ready and willing to
try even some state actors who are alleged to have committed atrocities during
the conflict in Northern Uganda. This then pushes the challenge to the police
and the DPP, who also claim that they have not received and/or recorded any
complaint from any victim. The blame is then pushed to the insecure and
disempowered victims by the justice agencies.
41
The above scenario presents lack of government will to provide adequate
redress to the victims. This view is shared by some of the interviewees. For
example, one of the local politicians in Gulu, said that;
the government is lacking the good will to do something substantial to
the people. The government seems to fear responsibility because, may
be, they think that if they take on compensating the victims it will be
admitting guilt. For example when the human rights focus published
persons whose rights were violated, the RDC referred to it as a ‘wrong’
organization. Unless we start to take criticism positively and learn from it
then we cannot achieve much. There is need to have community participation and involvement. The community needs to be involved and participate and need to know their rights and people to talk about those
rights openly in order for the War Crimes Court to be meaningful to the
victims.
His view that government lacks will is reinforced by that of an officer working
with Justice and Reconciliation Project in Gulu who stated that “(...) we as
NGOs have already been advocating for the reparation and compensation policies (...) we have made recommendations but the government has turned a
deaf ear; the government lacks will.”
Likewise, a lawyer for transitional justice working with refugee law project
in Uganda expressed her concerns about accountability and the selective trials
by the Court. She stated;
the issue is that will it look at justice and accountability impartially and
will it address issues of reparation and compensation? It should try both
actors. If ICD tried at least even NRA government leaders, it would give
ICD credit. Even with the LRA, there has not been any process of accountability of perpetrators who were granted amnesty. No truth telling
has been done yet it has been suggested 3 years ago in the National Reconciliation Bill that suggests truth and reconciliation commission that
links to traditional justice.
42
Responses from victims indicate that 54% (Table 4.1.2, Annex A) wanted both
state and non-state actors to be tried by the Court. These views and responses
point to the conclusion that; much as many stakeholders welcome the Court,
the issue of the Court being viewed as selective in its war crimes trials remains
a challenge.
Views on remedies awarded by the Court;
The War Crimes Court conducts purely criminal trials and after a conviction,
an accused is given a sentence of imprisonment for life or a lesser period (ICC
Bill, 2010). The Court does not award reparation remedies such as compensation because there is no policy to that effect. Many victims would love to see
both justice done and a remedy of compensation or recognition awarded to
them.
A private advocate in Gulu stated that; “ the Court is applying ordinary rules of
criminal procedure and there is no provision for reparation in Ugandan law
which caters for reparation. Even if the victims participate, who will compensate them after being a warded a remedy?” the judges in their responses during
the stakeholders meeting organised by court (Appendix B) held a similar view
that even if the Court awards reparation remedies, enforcement would be a
challenge because there is not Trust Fund for it. The judges encouraged NGOs
and civil society organisations to advocate for policies that would provide
compensation for war crime victims.
In holding a similar view, a researcher with Justice and Reconciliation Project
in Gulu revealed that as NGOs, they had already been advocating for reparation in terms of compensation, building memorials, treatment and surgeries for
victims of war crimes in Northern Uganda and have made such recommendations but that the government had turned a deaf ear so far. He expressed the
43
view that if government were willing, it would have done so; because it has
compensated Mukura2 and the Luwero Triangle victims3
It appears that despite the fact that the Court may not be able to provide
reparation remedies at the moment, the people would consider the Court as
providing adequate remedies; especially if it were not to be seen as partial, unfair and selective in its trials. This is because most stakeholders believe that the
Court will deliver justice and that with time and advocacy for policies for reparation, the Court may in future award reparation remedies. This is backed by
the fact that the government has provided for the establishment of a trust fund
for the war crimes victims in Northern Uganda – although this is not yet law.
3.3 Is the War Crimes Court a Rights-Based Response to the War
Crimes and Human Rights Violations Committed in Northern
Uganda?
As already discussed in an earlier chapter, constituting a rights-based response
requires an approach that takes in to consideration more than one dimension
of addressing the rights of the victims. The most appropriate way would be to
adopt all the relevant principles of HRBA. The views of the victims were gathered through a quantitative method from 98 respondents and qualitative method through in-depth interviews with 2 victims who wished to remain anonymous.
The War Crimes Court awards punitive remedies, that is, after hearing and
determining the case before it and convicting an accused person, the Court can
pass sentences of imprisonment, caution or compensation which are the recommended sentences under the Ugandan Criminal Law and Rules of procedure (S.8, The High Court (International Crimes Division) Practice Directions,
2‘
Mukura Victims’ are relatives to the people who were suffocated to death in a train
wagon in Mukura during the insurgency in 1988 by the Museveni government soldiers.
3 ‘Luwero Triangle Victims’ are the people who were either injured, lost relatives or
property during the Museveni bush war. ‘Luwero Triangle’ was the final and most
treacherous battle that brought Museveni to power in 1986.
44
2011). It indeed gives a victim an opportunity or a right to complain and testify
against their assailant with a view of getting a remedy. The above process by
the War Crimes Court is in conformity with the principles of empowerment,
participation of the victims and accountability.
However, it is clear that the vast range of war crimes, crimes against humanity and human rights violations that were committed - that is, rape, abductions, looting and destruction of property, forced pregnancies, child recruitment in to the armies and mass murders (Kasaija, 2005) it is clear that all the
above have left the population poor, sick, traumatised, maimed and generally
helpless and some displaced. Redressing this requires more than prosecution.
A section of the victims would want prosecution of the perpetrators in order
to end impunity. According to the statement of the Victims working group on
Uganda Peace Talks (August, 2006), they would want to see justice done and
remedies of reparation awarded to them. They would want to see the perpetrators of the violations made accountable for the crimes that they committed.
But as much as people need justice and accountability, they also expressed the
need for reparation. In the words of the LCV of Gulu municipality:
People are living in abject poverty and are desperate and can take in anything thing offered to us. People are also ignorant on who did what. Before we can have any meaningful compensation, the government should
have a detailed record of how many people are abducted, killed, injured,
sexually violated and so on.
The above statement is indicative of the need for reparation remedies; which
government needs to address. According to the above respondent, the process
of reparation should commence with government identifying and registering
victims and policies for reparation.
Without prosecution, victims may not be able to meaningfully participate
as victims in truth telling and testifying against their perpetrators and prove the
loss they suffered and be reparation in terms of compensation. Proponents of
45
non - formal justice mechanisms (Respondent during dialogue meeting, 2011)
argue that amnesties and traditional mechanisms would present victims an opportunity to participate in truth telling and testifying against their perpetrators
and as well foster reconciliation. It appears that the major reason behind those
advocating for amnesty and non formal justice mechanisms is that they are
more focused on the needs, interests and rights of the perpetrators rather than
on the rights of the victims. As reported by an international human rights
NGO (IRIN, 2011:8), Ned Dably, analyst at the International Crisis Group
(ICG), said:
Unfortunately, the trial does little to reassure LRA fighters still in the bush
in the DRC and the CAR that if they surrender they will be offered amnesty and be able to return home (...) the Ugandan government appeared
to be using the Kwoyelo trial to show it is taking on board the need for
justice and accountability in the aftermath of Northern Uganda conflict.
My view on the above argument is that given the fact that the most victimised
groups of people during the war were children and women (Uganda Peace
Foundation Initiative, 2011), coupled with the traditional norms and customs
regulating the status and the position of women and children in societies of
Acholi, Lango and Teso, traditional justice mechanisms would not provide for
empowerment and meaningful participation of all victims in traditional justice
mechanisms.
This implies that it would then be necessary for the government to set up a
mechanism through which the victims can be compensated by the government
under the government programme without the award of a remedy of compensation by the Court. This would even cater for victims who may not be able to
prove their claim in a Court of law. The challenge is that the government of
Uganda lacks a data base for the records of victims of the conflict of Northern
Uganda (Oomen & Marchand, 2007: and (LCV & KI C, Gulu, 2011) and the
victims are equally not empowered to form associations which would act as
forums for advocacy.
46
At the moment, the legal frame work of Uganda does not provide for protection of witnesses by the Court in terms of their identity, psychological counselling, fair treatment in Court and protection from other risks that may occur
due to them giving testimony in Court. In their website; (IRIN, 2011:5) reported that “there have also been concerns about whether the ICD Court, set up
in 2007 after the incorporation of the International Criminal Court’s Rome
Statute lacks the required international procedures to (...) sufficiently protect
witnesses”. It may give the victims the satisfaction of seeing their perpetrators
being brought to book and since it involves truth telling to a certain extent, it
may lead to healing.
If the War Crimes Court only provides for punitive remedies and no reparations, such remedies may bring psychological healing to the victims of war
crimes, crimes against humanity and human rights violations. Prosecutions and
punishment of offenders also may serve to deter the recurrence of impunity
that may serve global justice. It is therefore my opinion that psychological satisfaction and healing for the victims, alone would not constitute adequate
rights-based response; it should be coupled with reparation remedies. If the
Court is to fully provide adequate remedies to the victims, then it should also
be able to effectively award and execute reparatory remedies like compensation, damages in order to make good the loss that had been caused to the victim. Unfortunately this does not seem possible in the short run given the fact
that there is no national policy so far established for that purpose and there is
no trust fund as well let alone the statistics on the victims. This is reflected in
the statement of Uganda Victims Foundation on The National Reconciliation
Bill of 2009).
It seems clear that people need just more than prosecution of the perpetrators that the War Crimes Court currently offers and to them an adequate
response should be one that brings perpetrators to accountability as well as
offer reparations for victims. To them reparations would include compensations, building for them memorials, medical treatment for those who were
47
maimed, reconstruction programmes, government guarantee for their security
and apologies from government. Since the Court can deliver justice to the victims, in my view, it is a human rights response to the war crimes. The fact that
the Court does not at the moment award reparation remedies should not be
interpreted to mean that it is not a rights-based response.
3.4 Do Victims View the Practice of the War Crimes Court as Contributing Towards a Rights-Based Response?
The victims’ responses and opinions on what is the most desirable venture in
addressing war crimes and the human rights violations committed against the
people of Northern Uganda showed that a majority of 57.2% believe that amnesty is the best option available while only 30.6% believe in the War Crimes
Court as the desirable option. Still 11.2% believe in the Acholi traditional way
of delivering justice commonly known as mato-oput as the best way out. Yet another 1% still believes in other unspecified ways as an option. The government
of Uganda enacted an Amnesty Act in 2000 to encourage the rebels to denounce rebellion and over 26,000 have benefitted from the same. However, as
already reflected above, none of the ex rebels have been subjected to accountability and truth telling as envisaged in the Juba Peace Agreement on Accountability and Reconciliation.
The above findings could be interpreted to probably mean that the victims
have given up the hope for justice. In the words of the LCV of Gulu municipality;
People are living in abject poverty and are desperate and can take in anything thing offered to
us. “People are also ignorant on who did what before we can have any meaningful compensation, the government should have a detailed bank of how many people are abducted killed,
injured, sexually violated and so on. We cannot have compensation without a clear guideline
of the victims. The best way is that the government must have a change in style that calls for
full commitment to ensure human rights protection.
From the above statement, it appears that the desperate situation that the
population is in, the ignorance, distrust and lack of government commitment
48
to give justice to the victims has made the victims rather willing to sacrifice
their right to justice for political peace and security in the area.
In my field research, I found out that 86% of the victims interviewed
through questionnaire believe that ICD will deliver justice. To them, justice is
punishment of offender together with an award of compensation for the loss.
This indicates that victims believe in and want accountability for the human
rights violations imposed on them by both state and non state actors.
As to what would constitute an adequate remedy, 37% believed that reconciliation would be an adequate remedy. When probed as to what they considered to be reconciliation, most of them answered that mato oput which involves truth telling, compensation and forgiveness. 35% believed that the
punishment of offender would be an adequate remedy while 25% answered
that compensation would be an adequate remedy for them. A lady formerly
abducted by the LRA and raped by the LRA leader Joseph Kony and now having his child; when interviewed said that she does not hate the child she had
with the LRA leader but that if she were to be given an opportunity, she would
happily slice Kony in to pieces with her own hands. To her, that would be
enough.
This position is reinforced by the data collected by Vinck et al. (2007) who
stated that “more than two thirds of the respondents (70%) said those responsible for committing violations of human rights and international human rights
law in Northern Uganda should be held accountable.”
The most interesting finding that I came up with is that while it has been
stated that, victims of the war conflict in Northern Uganda mainly want traditional justice mechanisms, most of the respondents to my questionnaire who
were all victims want punishment of the offenders. In fact, the category of respondents who want punishment of the offenders and compensation were
those who were either abducted, lost property, a relative or suffered a combination of the three while those who preferred amnesty or traditional justice
49
mechanisms were mainly those affected by just displacement and to some extent loss of property.
The victims and the entire community nationally and internationally were
excited at the commencement of the trial of one of the LRA perpetrators and
expressed their desire and hope that they would live to see at least some of the
government actors also being brought before the court. However, in September 2011, the Constitutional Court declared that the trial of the accused before
the War Crimes Court was unconstitutional. With this shocking turn of events,
there has been discouragement on the side of those, especially victims who
want perpetrators to be accountable. According to Nsambu (New Vision,
2011), Amnesty International protested against the release of Col. Thomas
Kwoyelo, a former commander of the Lord’s Resistance Army (LRA) by the
following statement that:
What we are witnessing here is pervasive impunity for crimes and human
rights violations. It is high time Uganda carried out an investigation in to
all crimes committed during the 20 year conflict. Neither Thomas
Kwoyelo, nor others accused of committing war crimes should be granted
amnesty.
On the contrary, another commentator, (Mark Kersten) reacted to the decision of the Constitutional Court as a development in the Uganda’s judiciary
(Nsambu, New Vision, 2011) stated that the decision of the Court of Appeal to
declare the trial of accused unconstitutional exhibits independence of the
Uganda judiciary-whose view I subscribe to, to the extent that the constitutional Court interpreted the constitutional provision in regard to fair and equal
treatment before the law fairly, though it did not serve justice for the victims.
According to Nsambu (ibid):
many Ugandans have expressed uncertainty as to how and when it was
possible to prosecute former rebels. The record is rather clear right now:
unless the amnesty act is altered or entirely challenged, all rebels who denounce rebellion can apply and be granted an amnesty...in such sensitive
circumstances, it is often difficult to know whether or not the process is
subject to the whims of political intrusion.
50
This twist of events has left different people with different feelings about the
credibility and reliability of the court in delivering justice and the victims seem
to have already lost trust in the Court. This therefore means that the role of the
court cannot be effective if the amnesty law is not annulled or amended in order to add meaning to the War Crimes Court.
Although there are different views by the victims about the practice of the War
Crimes Court as contributing towards rights-based response, at least 86% believed that the Court would deliver justice. The core elements of HRBA discussed in this paper are; accountability, empowerment and participation. victims who want accountability and believe that the court will deliver justice view
the Court as contributing towards a rights-based response.
My conclusion based on the findings is that the views of victims about the
practice of the War Crimes Court as contributing towards a rights-based response are positive; despite the fact that its activities have been temporarily
affected by the decision of Constitutional Court.
However, looking at the jurisdiction, activities and the remedies that the Court
currently offers, it is clear that the Court is not fully providing a rights-based
response towards addressing war crimes and human rights violations in Postwar conflict Northern Uganda. This is because; the elements of HRBA of accountability, empowerment and participation by the victims have not been applied in the Court. But given time, the Court may provide a rights-based response by putting all perpetrators to accountability and this will enable victim
participation
and
51
empowerment.
Chapter Four
4.1 Conclusions
From the discussion, the theories for the reasons for the establishment of
the War Crimes Court in Uganda are quite divergent. The literature and the
findings suggest that the War Crimes Court was established for political reasons geared by the need for national security, peace and stability (Kasaija,
2005:408) in the region and not for reasons of law and justice which would
lead toward accountability and reconciliation. This is because the practical operation of the War Crimes Court is impossible with the existence of the current
amnesty law in Uganda and also because the War Crimes Court was established
as a result of the Juba Peace Agreement on accountability and Reconciliation
which was between the government of Uganda and the LRA rebels-an agreement between the actors in the conflict and not with the victims.
Secondly, with the Juba Peace Agreement as basis for the creation and the
establishment of the War Crimes, some have held the view that the Court was
established to try perpetrators of war crimes and human rights violations
committed in post war conflict Northern Uganda and any subsequent such
crimes. Indeed so many victims had assumed hope of testifying against the
perpetrators. Over 60 witnesses came up willing to testify against one of the
LRA rebel commanders. According to the DPP, many more persons were to
be charged and there were many witnesses ready and willing to testify. On the
contrary, with the great concerns raised by different Ugandans on the issue of
the War Crimes Court being established to try only LRA as one of the actors
with the exclusion of the state actors who also committed war crimes, it is difficult to believe that the Court was actually established to serve law and justice.
Justice should not be selective and this is the major concern with most respondents, authors and commentators.
Thirdly, there is also a view that the court was established as a fulfilment
of Uganda’s International obligation to exercise her primary duty to exercise
her criminal jurisdiction over those alleged to have committed crimes of international concern (Rome Statute, 2002: preamble para.6). However on this the-
52
ory, there are those who opine otherwise. They argue that it seems Uganda established the court and the trial of an accused that commenced in July 2011 is
just for purposes of demonstrating to the international community her commitment to exercise her international obligation to try perpetrators of war
crimes.
Therefore, it is difficult to come up with the conclusive single reason as to
why and how the War Crimes Court was established. It appears that there is
more than one reason why the Court was established.
The seemingly popular view that people prefer traditional justice mechanisms rather than criminal trials may not necessarily be the case. Especially
when it comes to victims who faced direct violations from the perpetrators.
There are varying interests and these interests influence the opinions of different people on the role and activities of the War Crimes Court. Therefore, the
views of the relevant actors on the activities of the War Crimes Court are
mixed. Those who are interested in accountability and victims who are in need
of justice are more expectant of the redress that the Court will offer. On the
other hand, those in need and interest of Peace, security and reconciliation do
not see the Court providing for such redress.
If the War Crimes Court is to be more relevant to the victims and entire
community it should be able to deliver justice which involves bringing the perpetrators of the conflict to accountability. But this can only be done if the legal
framework is well developed and the process of fair trials guaranteed as well as
the independence of the judiciary from the executive or legislature.
Although the government has established both traditional and formal justice mechanisms to address the war crimes that have already been committed
by providing for the same in the Accountability and reconciliation agreement
and enactment of legislations and establishment of the War Crimes Court,
government has not put in place other effective policies and mechanisms for
redress. For example there is no trust fund to cater for reparation, protection
and empowerment of victims and there is no mechanism established for identification of victims. This is reflected in the Uganda Victims Foundation Statement on the National Bill of 2009 (2009:3-4).
53
Much as the government is trying to meet its international obligation to
prosecute perpetrators of war crimes and human rights violations by establishing a specialized division of the High Court, the public hold an opinion that
the activities and trials of the War Crimes Court are selective, both as between
the LRA and State actors as well as among LRA ex-rebels (Allen, 2004:86-87),
(IRIN, 2011:5) respectively. It therefore appears that the government lacks will
and commitment to address the needs of post conflict in Northern Uganda.
It would be helpful and beneficial to the victims if government was willing
and committed to reconstruction and reparation programmes at national level
by developing effective national policies geared towards attainment of the
same. Effective national policies according to me would be those that have a
legal framework, forums and mechanisms for enforcement of the policies.
As long as the above circumstances (selective justice, no government will
etc.) prevail, then the War Crimes Court alone may not be a rights based response the war crimes and human rights violations (although it is very important) because victims whose rights were violated by state actors may not
have recourse to redress and the form of redress offered by the court is very
vital but needs to be substantiated in terms of remedies offered.
The victims hoped so highly in the Court especially as it had just opened
its first trial and most victims according to the field findings believed in the
independence and impartiality of the Court. However, with the dramatic
change of events with the ruling of the Court of appeal directing the War
Crimes Court to release the war crimes suspect, the opinion of some victims
has changed. They do not seem to trust the Court any more. Although the
change of events is based on the conflict between the amnesty law and the
constitution and not on the Court’s practice, still the public have expressed
their negative view of the Court based on that.
54
Generally speaking, the views of both the victims and stake holders on the
War Crimes Court in contributing towards providing rights-based response to
the crimes and human rights violations committed in Northern Uganda are
differing. But all in all, majority of the victims as well as stake holders believe
that the Court would do so if empowered by enactment of relevant legislations
that would comprehensively address the needs and rights of the victims.
RECOMMENDATIONS
The government should fully adopt and apply the elements of HRBA by
bringing to accountability all perpetrators of war crimes and this will enable
victims to participate in truth telling as victims. Empowerment is also essential both in terms of information and resources to facilitate their particpation.
My findings are that the victims are would like to see justice in terms of
bringing perpetrators of war crimes to accountability as well as reparation. Further that much as the government has established the War Crimes Courtwhich is considered as government commitment to the Juba Peace Agreement
on accountability and reconciliation, the government has not put in place an
effective legal frame work and mechanisms to reinforce the applicability of the
Court and the remedies that may be considered adequate by the victims, that is,
remedies of reparation which usually lead to compensation.
In that regard, there is therefore a need for the government to provide
such legal frame works and mechanisms in that regard. Government will and
commitment should be felt by the people through its activities.
If the accountability process is to be more meaningful, there is then a great
need for protection of witnesses’ rights during the hearings in any level of
Court in terms of confidentiality, psychological trauma, and physical danger
and in relation to other risks. The government should therefore consider the
option to establish an effective mechanism for protection of post conflict witnesses.
.
55
References
Agreement on Accountability and Reconciliation Between the Government of the
Republic of Uganda and the Lord’s Resistance Army Movement Juba, Sudan.
Allen, T. (2004), Trial Justice: ‘The International criminal Court and the Lord’s Resistance Army’ London, England: Zed books; 2006.
Amnesty Act (Cap. 124) Laws of Uganda, (2000).
Arts K. (2006), ‘General Introduction: A Child rights-based Approach to International
Criminal Accountability in Arts K. and V. Popoviski(eds.) International Criminal
Accountability and the rights of children, United Nations University and Hague Academic Coalition, pp. 3-17 The Hague: Hague Academic Press.
56
Convention on the Rights of the Child, (1989).
Darrow, M. and T. Amparo, 2005, ‘Power, Capture and Conflict: A call for Human
Rights Accountability in Development Cooperation’, Human Rights Quarterly, The Johns Hopkins University Press 27 ( 2) pp. 471-538.
Dolan, C., (2009), Social Torture: The case of Northern Uganda, Berghahn Books: New
York Oxford
Fortman, B., 2006, ‘Poverty as a Failure of Entitlement: Do Rights-Based Approaches make Sense?’, in Williams, L. (ed.), International Poverty Law: An
Emerging Discourse, London, Zed, pp. 34-48.
Free Zones of Upper Savoy and District of Gex (Fr. v. Switz.), 1929 P.C.I.J. (ser. A)
No. 22 (Order of Aug. 19)
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed forces in the Field (Geneva Convention I) (1949).
<http://faculty.ncwc.edu/mstevens/300/300lecturenote01.htm
Hansard Uganda Parliament, 7th September 2006),
Human Rights Watch (2003), “Abducted and Abused: Uganda” Vol. 15, No. 12
(A); Accessed 13 November 2011.
<allafrica.com/stories/201005310601.html>
Human Rights Watch (HRW), 2004, “ICC: Investigate all Sides in Uganda” Accessed 12 November 2011.
< http://www.hrw.org/news/2004/02/04>
ICC Act (2010), Laws of Uganda
International Covenant on Civil and Political Rights, (1966).
International Covenant on Economic, Social and Cultural Rights, (1966).
Kagumire, R. (2008), ‘the first moves to create Uganda’s first war crimes court have generated
controversy and doubts about its credibility and purpose’, Monitor News Paper 29 September.
Kagumire, R. (2010), ‘Uganda War Crimes Court set for its first LRA trial but what
about crimes committed by the army?’ Monitor News Paper 29 May.
Kasaija, P. A (2005), The International Criminal Court (ICC) and The Lord’s Resistance Army (LRA) Insurgency in Northern Uganda: Criminal Law Forum (2004)
15: 391-409.
Kasaija,P. A (2008), The ICC’s Possible Deferral of the LRA Case to Uganda: Journal
of International Criminal Justice 6 (2008), 801-813.
Maiese, M., (2003): Principles of justice and Fairness: Intractability (eds.), Guy burgess
and Heidi Burgess, Conflict Research Consortium, University of Colorado Boulder.
Marks P., Stephen, 2002, ‘The Human Rights Framework for development’ New
Dheli Thousand Oaks London.
Marks S.and A. Clapham (2005), “International Human Rights Lexicon”, Oxford University Press.
Meron,T. (1994), ‘War Crimes in Yugoslavia and the Development of International
Law’ The American Journal of International Law Vol. 88:76, pp. 78-86.
Merry, S., (1988), “Legal Pluralism”: Law and Society Review, 28 (5).
Ministry of Finance, Planning and Economic Development, (2002).
National Reconciliation Bill, (2009), Uganda.
57
Nouwen, S. and Werner, W., (2011), ‘Doing Justice to the Political: The International
Criminal Court in Uganda and Sudan. The European Journal of International Law, 21
(4).
Nsambu, H (2010), Uganda: ‘ICC Hails Us On War Crimes Court’ The New Vision,
Uganda’s Daily Newspaper, 29 May 2010.
Nsambu, H., (2011), “War crimes trials may affect LRA defections”, The New Vision,
22 September.
Nyamu-Mesembi, C., 2005, ‘An Actor-Oriented Approach to Rights in Development’, IDS Bulletin, vol. 36 no. 1 January 2005, pp. 41-49.
Office of the United High Commissioner for Human rights, (2006), ‘Frequently
Asked Questions on a Human Rights-Based Approach to Development Cooperation: New York and Geneva.
Oomen B. and I. Marchand, 2007, ‘Legal Cultures, Blurred Boundaries: the Case
of Transitional justice in Uganda’, in Fred Bruinsma and David Nelken (eds)
Explorations in Legal Cultures, Elsevier, pp. 161-182
Optional Protocol on the Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict, (2000).
Pettit, J and J. Wheeler,2005, ‘Developing Rights? Relating Discourse to Context
and Practice’ IDS Bulletin, 36 (1) pp. 1-8. (EUR e-journals).
Refugee Law Project (RLP), 2004, “Behind the Violence: Causes Consequences
and the Search for solutions to the War in Northern Uganda” Working Paper
No. 11.
<relweb.int/.../A84748D00CFD082AC1256D6400501583-hrw-uga-15jul.pdf>
Rome Statute of the International Criminal Court (ICC), (2002).
Ssenyonjo, M., (2005),Accountability of Non-State Actors in Uganda for War Crimes
and Human Rights Violations: Between Amnesty and the International Criminal
Court. Journal of Conflict and Security Law, 10 (3).
The High Court (International Crimes Division) Practice Directions, (2011). Uganda
Gazette 38 (CIV)
The Monitor (24 June 2009), Uganda: ‘War Crimes Court Should Try UPDF’ by Sam
Lawino.
Theoretical Perspectives of Victimology; Accessed on 13 November 2011
<http://faculty.ncwc.edu/mstevens/300/300lecturenote01.htm
http://reliefweb.int/node/413689>
Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig Territory, Advisory Opinion, 1932 P.C.I.J. (ser. A/B) No. 44 (Feb. 4)
Uganda Peace Foundation Initiative (UPFI), 2011, ‘Over view of Kitgum, Pader
and Gulu Districts’ Accessed 28 May 2011
<http://www.ugandapeacefoundation.org.>
Uganda Victims’ Foundation (2009), ‘Statement on the National Reconciliation Bill of
2009.
http://reliefweb.int/node/413689>
Universal Declaration of Human Rights, (1948).
Vinck P., N. P. Pham, Stover E., M. H. Weinstein (2007), ‘War Crimes, Trauma,
PTSD and Depression Symptoms, and Peace in Northern Uganda: American Medical Association, 298(5) pp.543-554.
Vinck, P., et al, (2007), “New Population-Based Data on Attitudes about Peace and
Justice in Northern Uganda.
58
<www.judicature.go.org>
Appendices
APPENDIX A (RESPONSES FROM
QUESTIONNAIRE RESPONDENTS)
Districts
under 20
20 -30
31-40
41-50
over 50
yrs
yrs
yrs
yrs
yrs
%of
Total
Total
Gulu
5
24
7
5
4
45
45.9
Lira/Lango
0
3
0
3
0
6
6.1
Amuru
3
10
7
3
13
36
36.7
Kitgum
2
3
2
3
1
11
11.3
Total
10
40
16
14
18
98
---
59
% of Total
10.2
40.8
16.3
14.3
18.4
100
100
Table 1.1: Shows the age bracket of Respondents.
Figure: 1
%
45
40
35
30
25
%
20
15
10
5
0
20- 30 years over 50 years
31-40 years
41-50 years
under 20
years
Table 1.2: Shows the gender of respondents
Districts
Male
Female
Total
Gulu
23
22
45
Lira/Lango
3
3
6
Amuru
21
15
36
Kitgum
1
10
11
Total
48
50
98
60
% of Total
49
51
100
Figure: 2
Gender of Respondent %
Male
Female
Table 1.3: Shows the Levels of Education of Respondents
Secondary Tertiary Primary
Districts
level
level
level
Total
Gulu
18
10
17
45
Lira/Lango
4
0
2
6
Amuru
12
8
16
36
Kitgum
6
4
1
11
Total
40
22
36
98
36.8
100
%of Total
40.8
22.4
61
Figure: 3
%
45
40
35
30
25
20
15
10
5
0
%
Secondary
Primary
Tertiary
Table: 1.4 shows Directly affected
Respondents
District
Yes
No
Total
Gulu
40
5
45
Lira/Lango
4
2
6
Amuru
35
1
36
Kitgum
11
0
11
Total
90
8
98
91
8
% of Total
.8
.2
100
Figure: 4
62
Directly affected Respondents %
Yes
No
Table 1.5: Shows how the Respondents were affected.
District
Abduction Lost
Mutilated Displaced Sexually Others Total
property
abused
Gulu
18
10
0
12
3
2
45
Lira/Lango
1
2
0
3
0
0
6
Amuru
16
5
0
15
0
0
36
Kitgum
7
1
0
3
0
0
11
Total
42
18
0
33
3
2
98
42.9
18.4
0
33.7
3.0
2.0
100
% of Total
Table 1.6: Shows Respondents knowledge of the War Crimes Court.
District
Yes
No
Total
Gulu
28
17
45
Lira/Lango
6
0
6
Amuru
22
14
36
63
Kitgum
9
2
11
Total
65
33
98
66.3
33.7
100
% of Total
Table 1.7: Shows how the Respondents knew about the War Crimes
Court
District Government
Radio
Friend
Others
Total
Gulu
4
39
0
2
45
Lira/Lango
0
5
1
0
6
Amuru
2
33
1
0
36
Kitgum
2
9
0
0
11
Total
8
86
2
2
98
8.1
87.
2.0
2.0
100
% of Total
9
Table 1.8: Shows whether the Respondents knew the Activities of the
War Crimes Court
District
Yes
No
Total
Gulu
17
28
45
Lira/Lango
2
4
6
Amuru
14
22
36
Kitgum
3
8
11
Total
36
62
98
36.7
63.3
100
% of Total
Table 1.9: Shows whether the Respondents were complainants in the
court.
District
Yes
No
64
Total
Gulu
14
31
45
Lira/Lango
1
5
6
Amuru
13
23
36
Kitgum
2
9
11
Total
30
68
98
30.6
69.4
100
% of Total
Table 1.10: Shows whether the Respondents were witnesses in the court
District
Yes
No
Total
Gulu
12
33
45
Lira/Lango
1
5
6
Amuru
5
31
36
Kitgum
0
11
11
Total
18
80
98
18.4
81.6
100
% of Total
Table 1.11: Shows who should be tried by the court.
District
The LRA
The NRA
Both LRA and NRA
Others
Total
Gulu
24
3
18
0
45
Lira/Lango
4
0
1
1
6
Amuru
8
0
28
0
36
Kitgum
5
0
6
0
11
Total
41
3
53
1
98
41.8
3
54.2
1.0
100
% of Total
Table 1.12: Shows whether the victims expect justice from the court.
District
Yes
No
65
Total
Gulu
41
4
45
Lira/Lango
5
1
6
Amuru
29
7
36
Kitgum
9
2
11
Total
84
14
98
85.7
14.3
100
% of Total
Table 1.13: Shows why the Respondents expect justice from the court
District
The court is The
court
independent impartial
is The
court Others
Total
gives punitive
Gulu
36
7
2
0
45
Lira/Lango
5
0
1
0
6
Amuru
31
1
4
0
36
Kitgum
5
1
5
0
11
Total
77
9
12
0
98
78.7
9.1
12.2
0
100
% of Total
Table 1.14: Shows Respondents opinion on the most desirable venture of
redress.
District
The War Amnesty
Mato-oput
Crimes
Military in- Others
Total
tervention
Court
Gulu
10
30
5
0
0
45
Lira/Lango
2
4
0
0
0
6
Amuru
14
16
5
0
1
36
Kitgum
4
6
1
0
0
11
Total
30
56
11
0
1
98
66
% of Total
30.6
57.2
11.2
0
1.0
100
Table 1.15: Shows the Respondents opinion on remedies expected from
the court.
District
Compensa-
Reparation Punish-
tion
Others Total
ment of offender
Gulu
20
4
20
1
45
Lira/Lango
1
1
4
0
6
Amuru
14
1
19
2
36
Kitgum
5
0
6
0
11
Total
40
6
49
3
98
40.8
6.1
50.1
3.
100
% of Total
0
Table 1.16: Shows Respondents’ consideration of an adequate remedy.
District
Compensa-
Punish-
tion
ment
Reparation
of
Reconcil- Others Total
iation
offender
Gulu
10
12
0
23
0
45
Lira/Lango
0
5
0
1
0
6
Amuru
8
12
1
13
2
36
Kitgum
2
3
0
6
0
11
Total
20
32
1
43
2
98
20.4
32.6
1.0
44.0
2.
100
% of Total
0
Table 1.17: Shows Respondents views on the remedies the court actually
offers.
67
District
Imprison Compen Recon
ment
sation
Try
of- Repar Deterrent/
ciliation fenders/
ation
Justice/
Cautioning Proper
Pay fines
Punish
ment
judgement
Gulu
20
5
3
1
1
1
3
11
Amuru
9
11
3
1
1
1
1
9
Lira/Lango
4
0
0
0
0
0
0
2
Kitgum
2
3
2
0
0
0
1
3
Total
35
19
8
2
2
2
5
25
35.7
19.6
8.1
2.0
2.0
5.1
% of Total
2.0
Table 1.18: Shows Respondents accessibility of the court
District
Yes
No
Total
Gulu
12
33
45
Lira/Lango
2
4
6
Amuru
11
25
36
Kitgum
3
8
11
Total
28
70
98
28.6
71.4
100
% of Total
68
25.5
Table 1.19: Shows Respondents’ challenges in trying to access the court
for justice
Responses
Frequencies
% of Total
Gulu
Amuru
Kitgum
Lira
Total
Financial difficulties
17
3
5
3
28
28.5
Delayed trial and justice
2
8
3
0
13
13.2
Long distances to travel and transport
7
6
1
0
14
14.2
Delay in court procedures
3
1
0
1
5
5.1
Corruption
0
1
0
0
1
1.0
Inadequate information
2
3
1
0
6
6.1
High court fees to be paid
5
2
0
0
7
7.1
Expensive lawyers
1
0
0
0
1
1.0
Limited knowledge about the law
1
0
0
0
1
1.0
Difficulties in understanding legal terms
1
0
0
0
1
1.0
Children are not allowed in court
1
0
0
0
1
1.0
Court officials don’t appreciate or welcome 2
0
0
0
2
2.0
problems
people
Court ask a lot of questions
1
1
1
0
3
3.0
Ignorant about the criteria or proceedings
2
3
0
0
5
5.1
Not free in court
0
2
0
1
3
3.0
There are language problems in court
0
0
0
1
1
1.0
Court staff are too busy to attend to us
0
1
0
0
1
1.0
A lot of bureaucracy in court
0
2
0
0
2
2.0
In equality in court
0
1
0
0
1
1.0
Threats in court/Need for witness protec-
0
1
0
0
1
1.0
69
tion
Illiteracy problems
0
1
Total
45
36
0
11
0
1
1.0
6
98
100
Table 1.20, Shows Respondents’ opinion on how to improve the court
towards addressing human rights violations and war crimes.
Responses
Frequencies
Gulu Amuru
Kitgum
%
Lira
Total
of Total
Increase the number of judges
2
2
4
1
9
9.2
Inform people about court processes
8
9
2
0
19
19.7
The court should be independent
13
6
0
0
19
19.7
Training of trainers on how to direct people
2
3
1
0
6
6.1
To ensure a corruption free court
3
3
1
3
10
10.2
The court should give free legal services
2
1
0
0
3
3.0
Court hearing should be done and completed
1
1
1
0
3
3.0
2
1
1
0
4
4.1
The court should address human rights violations
1
1
0
1
3
3.0
The court should provide transport freely
2
2
0
0
4
4.0
Freedom of speech should be observed in court
2
1
0
0
3
3.0
Financial support should be given by the court
1
2
0
0
3
3.0
The court should provide information to the peo-
2
1
0
0
3
3.0
The court should be free and fair
1
1
0
1
3
3.0
The court should consult locals
1
0
0
0
1
1.0
The court should have proper interpretations
1
0
0
0
1
1.0
quickly
The court system should be brought close to the
people
ple
70
The court should have proper method of bringing
1
0
0
0
1
1.0
0
1
0
0
1
1.0
The judges should be impartial
0
1
0
0
1
1.0
The court should emphasise very much on recon-
0
0
1
0
1
1.0
45
36
11
6
9
100
together victims and offenders
The court should consider mediation and peace
talks
ciliation
Total
8
Table 1.2.1: Population and Samples of Study.
Category
Population Samples
Sampling
niques
Judges, Magistrates, Lawyers, 20
20
Census
10
Census
44
Purposive
98
Simple Random
Registrars
Acholi Religious Leaders Initia- 10
tive, Local Leaders
Local governance
Community,
50
Rehabilitation 130
groups and Schools
TOTAL
210
Source: Field data
71
172
Tech-
%
45
40
35
30
25
%
20
15
10
5
0
20- 30 years over 50 years
31-40 years
41-50 years
under 20
years
Table 1.2.2: Administration of Instruments.
Data Collection Instru- Respondent
Categories
ments
Interview
Judges, ARLI, local governance, registrars, magistrates, lawyers, local leaders
and victims.
Questionnaires
War victims, community, schools, rehabilitation groups.
Observation
General to all, and attending court
72
hearings, meetings and seminars.
Source: Field Data
73
APPENDIX B (RESPONSES FROM KEY
INFORMANTS)
The Opening Ceremony of the Court was presided over by the Principal
Judge who addressed the stake holders at the stakeholders’ meeting just before
accused took his plea. He advised the press to report accurately.
This is a trial of its first kind and wrong reporting may send wrong signals. It is
a trial like any other. Justice is not a one way affair; offender, victim; prosecutor and
community are all entitled to justice. The judges are more than ready to try the suspects.
Judiciary is not selective because once an offender is brought to court; justice will take
its own course. What remains then is to accord the accused a fair trial which is a constitutional requirement and the judges know what it entails. Wish you a fair trial so
that at the end of the day people in Uganda, International community will see that justice is done.
Meeting with Stakeholders was attended to full capacity of the room
by; Civil Society, NGOs, CBOs , Human Rights Activists, Legal fraternity Local government Authorities and JLOS team: Hon. .J. Yorokamu Bamwine Principal Judge Hon. J. Dan Akiki Kizza Hon. J. Elizabeth Ibanda Nahamya
and Hon. J. Alpohnse Chigamoyi Owiny Dollo
The Chair Person (KI A) for the Great North Women’s Voices for Peace
Network (GNWVPN) had questions she raised and gave a copy of their memorandum (See appendix D). She asked whether the ICD was going to adequately address the gender based crimes since they had been informed that the
Geneva Convention does not adequately address gender based crimes like war
crimes involving sexual violence ...etc. How the court would guarantee the protection of witnesses and information on progress of cases ...etc? “We have
been told that there are different levels of trials, ICC, ICD, is mato-oput also going to take place. Is the ICD also going to try some high ranking officials of
the NRA/UPDF who participated in the war?’
Responses to questions raised by different stake holders were as follows:
74
Judge Akiiki Kiiza, head of the ICD;
The ICD court is applying common law principles as opposed to civil law principles.
This means the judges don’t carry out investigations to the extent that we don’t know
what evidence the prosecutors will bring against the accused. As to which cases are coming next the judges don’t know. All that the court has is an indictment. For Amnesty
the judges don’t know about amnesty itself. They are judges. All they know is that the
accused has been brought before court for trial. There was a legal notice which was
signed by the Chief Justice (CJ) and provides that the court will follow the usual law. It
is only in certain circumstances that the court will use International laws.
The suspect before court is just like any other suspect of assault except that he is
charged under the Geneva Convention which Uganda is a signatory. The ICC Act
was domesticated last year May- June 2010. Uganda cannot apply the ICC Act because the offenses were committed before the ICC Act. ICD doesn’t try only war crimes
but also crimes against humanity. The ICC Act applies only to crimes committed from
June 2010. ICD can try Kony...etc but due to the principle of complementarily the
ICC can also try Kony. This court is not in competition with ICC.
As for mato-oput, these were as a result of the Juba Accord Peace Agreement
under the third schedule. It proposed to provide on how the Court can apply the matooput. At the moment this court is applying common law only.
About witnesses from other countries it is the prosecution that knows which witness they have. It doesn’t matter where the witnesses come from. The court provides
funds for both prosecutor and accused witnesses. The accused before court now has chosen private brief of which court will not meet the costs.
About UPDF/NRA, the Court is ready to try any one, only that we only wait
for accused persons to be brought for trial and then the evidence will determine whether
accused is guilty or innocent.
In Uganda there is no legal framework for protection of witnesses but it is being
considered in the law reform. But the court can always consider the circumstances of the
witnesses and protect witnesses by protecting their identity. It implies a lot of costs but
75
the DPP has witness protection program including counselling. They have funds for
this. Others that may help include CARITAS.
In response to the issue of reparation and disseminating information to
the people, Hon. J. Nahamya stated;
The Uganda system has no provision for reparation and this becomes a challenge.
For information, the Registrar was going out to carry out an outreach sessions. He had
been on radio talk shows and people got informed. The ICD booklet was going to be
translated into Luo and the Registrar of court was doing that.
Hon. J. Owiny Dollo, judge of ICD and member of the then trial
panel;
Reparation is not possible because court can only order but the funds are not in
the legal system. The interventions are on policy level. The victims should use advocacy
in order to acquire legislation of reparations to victims. If Uganda fails in its primary
duty of prosecuting Kony then the ICC will do it. There are no levels of cases in Uganda that call for ICC
Mato-oput does not does not bar a trial neither will a trial bar mato-oput. Mato-oput only strengthens the trial system. He comes from this culture where mato-oput
only worked. The Constitution and the judicature Act allow the applications of customs which are not repugnant to justice.
In an in-depth interview with the Registrar International Crimes Division
of the High Court His Worship Assimwe Tadeo, his responses and views were
as follows;
ICD is also a permanent court like the ICC but the difference is just the geographical locations. The challenge is that African leaders are a team in that when a
warrant of arrest is issued, no one is willing to effect it. If justice by ICC is to be felt,
then Africa should be more represented in the ICC because in most cases Africans are
offenders. The court doesn’t make sense to have hearings in The Hague while the victims are in Uganda or DRC.
76
As to why the court was established Assimwe said it was formed to try war
crimes, crimes against humanity, genocide, human trafficking, piracy and other
crimes of international nature. He also had the view that the War Crimes
Court changed to International Crimes Division (ICD) because its mandate
and jurisdiction were widened.
The ICD can now try terrorism, piracy and other international crimes. Anything
defined as International crime can now be tried by the court.
The law applicable in the ICD is the Geneva conventions, PCA and other laws.
A specialized court was established because these are specialized crimes. War crimes
were never tried in traditional criminal courts. The views of the people are divided, some
want trials and other do not want it. Those who don’t want trials say that since some
have benefitted from Amnesty and were even given money and iron sheets to settle in
normal life and are walking around scot free so there is now no justification in trying
others. Some people want the accused to be forgiven and released.
Amnesty certificate bars the prosecution of the accused for the specific offenses it is granted. Therefore, the remedies to the victims of offenders who
are granted amnesty may be civil. According to him, Jurisdiction of the Court
is not limited geographically. On the challenges being faced by the court H/W
Assimwe said that there is no space for hearings since court premises are rented. There is need for customized premises. There are also only 5 trained judicial officers who can only constitute one panel at a go.
Workshop Dialogue Meeting that the researcher attended in Gulu district
had several discussants who expressed their views and opinions on the establishment of the ICD court and its relationship to ICC and they had the following views;
One, Otim working with International Coalition on Transitional Justice
(ICTJ) was one of the discussants and his view was as below;
ICC does not replace the countries National Criminal Systems except in special circumstances. The Juba agreement considered the options to justice but concluded with the establishment of WCC which is now ICD.
77
It is early to say whether Uganda is willing to and able to arrest and prosecute
the LRA leaders. Otim argued that, there were no reasons for the referrals in that
the LRA were outside Uganda’s territorial jurisdiction and in order to be able to
try them. Leaders indicated that the circumstances of the referrals should have
ceased. Otim said that the ICC Act was domesticated in June 2010 and the issue
of retrospectively. The issues are; Reparation, Compensation and Witness protection
and participation.
On the compelling version for holding trials in Uganda, Mr. Otim said is
because the war crimes took place in Uganda and there is need to bring justice
closer to the people. That, the personnel being Ugandans who are able to understand the circumstances of the LRA issue makes it easier.
His Lordship Rtd Bishop Onono Onweng
As a man of God, Bishop asserts that justice the following two things; it must
have truth and Justice must have mercy. Without truth we cannot know what we are
doing. All the crimes and violations were committed first then after the people had died,
everybody came looking for conferences, tribunals and courts. Why then should people
look at others dying? Once a wrong has been committed it has to be addressed. The
problem lies with the sitting African Presidents who will do anything to keep themselves in power. The ICC will issue warrants of arrest but who will implement them. It
would be more productive for ICC to support individual states to achieve respect for the
rule of law.
The challenge of ICD (Uganda) is that the court is a test case and everybody is
watching with different interests. However, I am happy with Ugandans trying it out
and even if it failed Ugandans should not cry because they have tried their best after all
it is a test case. Africans are angry with ICC that it only focuses on Africa that’s why
when Bashir of Sudan was in Uganda and Kenya he was not arrested. We are talking about ending impunity but if not all perpetrators are brought to accountability then
even ICC is not effective.
An officer working with traditional leadership of Rwot (Chief) of the
Acholi People (KIA) was of the view that a public court is a good court and
supports it, as much as he supports the ICC. Perpetrators of war crimes cannot
78
have exemption from the ICD just like the ICC, because the ICD to him is
ICC which has been brought nearer the people. To him, the problem might be
as some scholars think that the LRA might not get a good/ fair trial. But to
him courts are autonomous to decide on matters in the fairest way.
This court should try every perpetrator of the war that affected Ugandans for the
last 20
years. A court should not be one sided. I am happy that the court is trying
one LRA already. I wish to hear that the court is trying perpetrators of the NRA also
who committed war crimes. They should also be brought to book especially those commanders who killed, raped ...etc. It should therefore try LRA and NRA (UPDF) so
that people can see the court as fair.
It is a broad based government and justice is now at the level of reparation. Justice can only be delivered if the perpetrators are punished and the victims given reparation. The basis of delivering justice is broad. There is an issue of witnesses who are not
under protection and are fearful. The witnesses are eye witnesses. Some of them were
raped, their lips cut but due to lack of protection they are fearful to come out. Justice is
abortive because the people are fearful to come out. I don’t see the possibility of the accused being convicted.
According to him, the best way to go is traditional justice because it is not retributive but rather restorative and broken wounds will be amended. Restorative justice cannot get away with reparation, compensation and reconciliation. It is a non-metal way of
resolving disputes because even your clan is to take part in making the good or the
wrong and only traditional justice will give healing to the victims.
A victim can only feel OK when reparation, confession, compensation are carried
out and the court does not have that. There is need to tell the truth. Reconciliation is
necessary after understanding one another .The formal court of justice is fine but for
this issue the traditional justice should be carried out. The war affected people of
Northern Uganda and North eastern Uganda. We want to see lasting peace to all.
This cannot happen when the accused has been jailed for say 20 years because he may
die there.
Traditional Justice (TJ) can encourage our children who are still in captivity to
come out. Amnesty has been diluted because it is at the discretion of a single person.
79
The accused before court now was abducted when he was 15 years old and he was denied amnesty. The accused should have been brought before the traditional court.
Government should come openly to pronounce the registration of victims in different degrees of injuries and let the people know what the victims want before we can
think of their protection and the witnesses. Government has to do capacity building for
all the victims in accordance with what they want. Their tormentors must confess and
apologize. Government must pay compensation and reparation because it failed on it
duty to protect the people since it has that duty and international legal instruments to
do so.
Justice can only be brought to the people if Kony and the rest are brought down to
accept their fault and atrocities. This should be through peaceful means of government
help. Since the Juba agreement failed there is need to encourage the LRA to come on
table. Government will not end this war militarily since it has lasted over 20 years. If
both sides talk up the bitterness then they will relief themselves.
On the role of witnesses, these people are helpless and are crying out to the people.
The witnesses should demand their protection through CBOs, Religious Leaders,
NGOs and government so that the justice they will realize will answer the demand of
others.
ICD can only be improved by way of investigation department of ICD should be
strengthened since it is in Uganda and appointment of judges is done by the Head of
government. Justice can therefore, be done. There is need to try both NRA and LRA.
The court should be impartial for assessment of the activities of the court.
An 86 year old man, Chairperson of the Royal family and an Elder of the
‘Kekwaro Acholi’ Kingdom (KI B) did not support the court because according
to him, sometimes back the Acholi people agreed that the matter be handled
through Amnesty and government made Amnesty law-but not the court,
because the people were forcefully abducted to commit atrocities. That those
who were abducted were forced by circumstances of insecurity forced by
government because during government operations most boys were even
arrested and taken to prison and even some were killed by government armed
forces which forced the rest to join the rebel groups.
80
To him, the court should not continue because it might discourage the rebels still in the bush from coming out. He does not think that the court can
deliver justice. This is because of the way the way the court is grading crimes, it
is like the government is one sided. The way the issue should be addressed
should follow the Amnesty law. They should be granted Amnesty and issued
certificates. He stated;
The role of government is to grant Amnesty to the accused Kwoyelo and allow
him to come and settle in his community. Although the Juba peace agreement provided
for ICD but why only this accused. Other perpetrators should also be tried. The government soldiers were also involved; they should also be arrested and tried in ICD but
not only LRA. The perpetrators who have returned were given Amnesty and resettlement packages and they are now in schools, being integrated in the community.
The victims should welcome the former rebels. Some are intermarrying, and farming together with them. If the returnees are pinpointed at by the victims they should report to
the authorities. The NGOs are currently taking care of the returnees with their children.
Private Advocate (KIC) in Gulu:
The ICD is an achievement and a good thing for the victims although other people may have a different view. I have interest in Human Rights and special interest the
ICC.
As a lawyer and an officer of court I want justice to be done in Northern Uganda, but it should not be selective justice. By selective justice I mean ICD should not try
only LRA. The court should not target only one side. The court will bring justice -only
that there are issues of Amnesty and use of Geneva Convention which may cause a little bit of problem. I think that the court is independent and the judges are of high moral standing and I trust that they will be independent.
The trial should go on but also integrate with mato-oput. Mato-oput could work
if the accused is convicted and then his people and him should come up and declare that
they are sorry to complement the court process.
81
The government should play the role of conducting outreaches which is the most
important thing for the betterment of the court services. At least they have brought the
trial nearer to the people but they should be sensitive to the rights of the accused and
avoid making it look like a tourist attraction, that is they should protect the accused
persons The government has also facilitated the defence victims and complainants.
Why some people do not support the activities of the court is because the court
does not try all perpetrators. It is only targeting the LRA and Kwoyelo but leaving out
the NRA who was involved in committing different atrocities. The court is using ordinary rules of procedure and there is no provision for reparation in Ugandan law that
caters for it. So even if the victims participate, then who will compensate them after being awarded a remedy?
An officer in the Justice and Reconciliation Project- Gulu (KI D) had the
view that the ICD is a good development. “People have waited for justice and
at least now the court is here. He talked to victims who are mutilated and the
issue is that ICC is limited to crimes of 2004 and the ICD to that of 2010. ICD
does not clearly provide for addressing sexual crimes against women.”
As an activist working on Transitional Justice and advocate for Victims’ rights
for over 5 years, I support the establishment of the ICD because it is one of the approaches to transitional justice. The victims have different needs and some of them want
Amnesty, memorials, prosecution and it is about balancing the needs. ICD is serving
the needs of some victims who want to see offenders prosecuted. Most affected people are
at grassroots and they do not know about criminal procedures but when you ask them
they want justice, compensation, reparation, medical treatment in form of surgeries for
those mutilated.
I think that court is well equipped with experienced professional judges. The defense and prosecutors are all well experienced. Although some people doubt the impartiality of the court, I would like to see that the Director of Public Prosecution (DPP)
also aim at bringing up the cases against the state actors. But since this is the first case
I hope that the DPP will be impartial. The best option for addressing the issue in my
view is the one which can deliver satisfaction to the victims who want compensation,
reparation, memorial for their dead and accountability of perpetrators from both gov-
82
ernment actors and the LRA. A mechanism which can deliver a greater percentage of
the needs will be the best mechanism The government has started playing it role by establishing ICD but it should not stop at prosecuting but should look at compensation
and reparation because people’s property are destroyed, lives of relatives lost, and then if
it ends at convicting the accused, how can a victim benefit? Since they cannot regain
their moral lives, the government should consider a wide range of compensation and
reparation packages.
Victims lack a proper channel through which to make claims. There is the Acholi War Debts Claimants Association but they are concentrating on the lost cattle only.
The victims lack forum of complaints and are unable to clearly register their claims.
The victims are so dis-empowered that they are unable to initiate a way.
We as NGOs have already been advocating for the reparation and compensation
policies. For example, Mukura victims were given different amounts of money to divide
among themselves and Luweero triangle victims were also compensated but there are no
defined criteria for such schemes. We have made such recommendations but the government has turned a deaf ear so far.
LCV Chairperson Gulu District, during the dialogue meeting was of the
view that Victims or survivors don’t hope for justice from the ICC because
one of them last week in this very hall stood up saying that ICC whenever it
carries out investigations never gives them any report of the investigations.
ICC is too slow to help the people and some people think that ICD is an
arrangement by the government of Uganda.
However, during the in-depth interview conducted with the above
respondent, he had this to say;
I support the establishment of the ICD since it is within the setting of the legal
framework and constitution. The ICD is not created for today or for what is happening today or happened yesterday but all the days. It will create an environment that
will not create room for impunity.
It is difficult to tell whether the ICD will deliver justice to the victims. Any sane
human being should belief that the court is meant to deliver justice but someone will be
83
forced to have doubts when talking about ICD simply because of the way the judiciary
is handled in Uganda. Because of the image of the judiciary many people have low
opinion on it and think that the judiciary is not independent with external influences.
They doubt the integrity of the judiciary generally.
This is the first time the ICD is having such a case and it is a litmus test for
them. I am waiting to see the outcome of the trial which will confirm or clear the
doubts. It is expected to help give the actual face of ICD. Trying the accused is not a
difficult thing and the lawyers are talking so many technical things. I believe in speedy
justice but that should not be done as a cover up, but real justice should be done.
People should be patient with the court and wait for the outcome. It should not be
rubbished although there are weaknesses in the judiciary. The court should know that
it has a big challenge to prove that it is there to deliver justice which people will believe
in.
Government does not seem to have good will to address the issues of the people in
term of compensation and reparation. This would not even need advocacy. The government is lacking the good will to do something substantial to the people. The government
seems to fear responsibility because, may be, they think that if they corporate it will be
admitting guilt. I lost two brothers, one killed by LRA but one is unaccounted for.
People are living in abject poverty and are desperate and can take in anything
thing offered to them. People are also ignorant on who did what. Before we can have
any meaningful compensation, the government should have a detailed bank of how
many people are abducted, killed, injured, and sexually violated and so on. We cannot
have compensation without a clear guideline of the victims. The best way is for the government to have a change in style. That calls for full commitment to ensure human
rights protection. Since the rights of our people were not only violated by the LRA but
also government forces, it is the duty of government to protect the citizens as well as
their rights. It requires a lot, both at policy and implementation levels.
The human rights organizations should be empowered and established to enhance
partnership between the government and human rights organizations because on a
number of occasions government looks at these NGOs as enemies when they come up
with findings and recommendations. For example; when the human rights focus pub84
lished persons whose rights were violated, the RDC referred to it as a ‘wrong organization’. Unless we start to take criticism positively and learn from it then we cannot
achieve much. There is need to have community participation and involvement.
Mato-oput literally means: ‘mato’ means ‘drink’ and ‘opu’t is a bitter herb. Mato-oput is a reconciliatory ritual which is exclusively for Acholi people (the Madi have
Tonko Oput, the Langi call it Kori Cuk, Iteso call it Aipuc). In Acholi , if one
killed another then the side of the killer goes first to the cultural leaders who have a
council of elders who call the offender to tell the truth of what happened to the cultural
leaders then the cultural leaders talk to the affected and tell them that the offender has
accepted to confess. If they agree to settle, then they agree on the matter of compensation.
That is why mato-oput is complicated because if no one comes up to confess and tell the
truth and take responsibility then there is no mato-oput. After the compensation is
agreed upon and made, then mato-oput is performed as a ritual which involves the herb
being mixed with water in a guard. It is then placed between the offender and representatives of the victim who both kneel down in the middle of a road and drink from
the guard with each his hands behind without touching the guard. They drink three
times with their heads knocking each other showing a sign of forgiveness.
I am one person against mato-oput because mato-oput is between families, yet the
war was diverse and involved many actors. The system is not national or International.
It would instead promote impunity in the communities. How would the other actors
participate in mato-oput? Hurrying to mato-oput does not solve much. Mato-oput does
not cover past conflict situations which is the most challenging period e.g. if we have mato-oput now who will compensate who. My cousin was killed but who will come up to
confess and what about those who could have been killed by the state agencies, who will
come and confess?
Interview with a transitional justice lawyer working with the Refugee Law Project in Uganda (KIE) and she had this to say:
ICD is very important because it is part of the implementation of Item 3 of Juba
Peace Agreement on accountability and Reconciliation. The issue is that will the court
look at justice and accountability impartially and will it address issues of reparation
85
and compensation? The court should incorporate traditional justice and it should try
both actors.
Amnesty has value but it may be outdated. Amnesty is seen as opening doors for
people to come back home after follow traditional justice. There has not been any process of accountability of perpetrators who were granted amnesty, no truth telling has
been done yet though it was suggested three years a go in the National Reconciliation
Bill.
If ICD tried at least even NRA leaders, it would give ICD credit. I don’t think
that the religious leaders who advocated for amnesty meant no accountability by the
perpetrators.
In an interview with State Attorney in the DPP in ICD unit (KIF), her responses were as follows;
When charging any person of war crimes, we consider the fact that some of these
rebels were abducted and forced to commit atrocities. So we have to establish that there
was ‘mens rea’. We have had some more rebels arrested even in Garamba in Congo after the current accused but the military take them and get amnesty certificates for them
and incorporate them in the army to help them fight the rebels since they know the
routes as former rebels.
We have heard complaints from NGOs and some people that government is not
prosecuting the government actors who also committed atrocities. However, we have not
had any recorded complaint by a victim against a state actor for war crimes. Alternatively, government has tried some of the government soldiers who were perpetrators and
it has convicted and sentenced them but not through the War Crimes Court.
The Juba Peace Agreement- although not binding, had provided that the government
actors should be tried by the court martial and some of them have actually been tried by
the court martial.
86
APPENDIX C: QUESTIONNAIRE FOR THE VICTIMS:
This questionnaire is for academic research and the researcher is interested in getting information from people about the LRA activities in
Northern Uganda and the views of the people about the recent establishment of the war crimes court now called the International crimes Division (ICD).
CONSENT OF RESPONDENT
The purpose of the interview and how the information that I will give
have been explained to me and I have fully understood them and hereby
consent to give the required information with my free will believing that
the same will be kept confidential and that my identity will not be disclosed, except with my prior consent.
Signature/thumb print
……………………………………………………………
Telephone Number……………………………………..
Date…………………………………………………….
BIO DATA
Name …………………………………………………..
Age …………………………………………………….
Sex ………………………………………………………
Place of birth …………………………………………….
Current residence ……………………………………….
Marital status ……………………………………………
87
Level of education ………………………………………..
Occupation ……………………………………………….
Contact …………………………………………………..
1.
Were you directly affected by the LRA war?
Yes
No
If yes, how?
a)
b)
c)
d)
e)
f)
2.
abduction
loss of property
mutilation
displaced
sexually abused
others (specify)
Do you know about the war crimes court, now called international
crimes division?
No
Yes
If yes, how did you know about the court?
a)
b)
c)
d)
3.
Yes
Government
Radio
Friend
Others (specify)
Do you know the activities of the court?
No
If yes, what are the activities of the court?
88
4.
………………………………………………………………
……………………………………………………………………
……………………………………………………………………
……………………………………
Are you complainant in the court?
Yes
No
If yes, against who/
5.
Are you witness in the court?
No
Yes
If yes, against who?
6.
Who should be tried by the court?
a)
b)
c)
d)
7.
8.
LRA
NRA/ government soldiers who also committed crimes
All the above
Others (specify)
What do you think about the ongoing trials against the LRA rebel
commander?..................................................................................................................
.......................................................................................................................
.......................................................................................................................
........................................
Do you expect justice from the court?
Yes
No
If so, why?
a)
The court is independent
b)
The court is impartial
c)
The court gives punitive remedies
d)
Others (specify)
9.
What do you think is the most desirable venture in addressing the
war crimes and the human rights violations committed against the
people of northern Uganda?
89
a)
b)
c)
d)
e)
the war crimes court (criminal trials)
amnesty
traditional justice mechanisms e.g. mato oput
military intervention
Others (specify)…………………………………………………………
……
Why have you chosen the venture (remedy) above?
10.
What remedies do you expect from the court?
a)
b)
c)
d)
compensation
punishment of offender
reparation
Others (specify)……………………………………..
11.
What do you consider to be an adequate remedy awarded by the
court?
a)
compensation
b)
punishment of offenders
c)
reparation
d)
reconciliation
e)
others (specify)………………………………………………..
12.
What remedies does the court actually offer?
13.
Is the court easily accessible to you?
14.
What challenges do you face in accessing the court for justice, if
any?
15.
What do you suggest should be done by the government and other
stake holders in order to improve the services/contribution of the
court towards addressing human rights violations and war crimes?
APPENDIX D: MEMORANDUM BY GNWVPN
90
91
APPENDIX: E LETTER OF INTRODUCTION FROM ISS
92
APPENDIX F: TIME SCHEDULE
26 May 2011
RP Design seminar
ISS, Den Haag
rd th
3 -8 July
Confirm appointUganda
ments with respondents
11th-29th July
Field research in
Gulu - Uganda
Gulu
st th
1 -6 August
Compiling data colUganda
lected
8th-15th
auInterviews with ofKampala-Uganda/
gust/15/08-15/09
ficials/ writing up full Den Haag
draft respectively.
Mid-September
Full draft RP semiISS, Den Haag
nars
th
Sept- 10 Nov
Further data analysis
ISS, Den Haag
and writing
th
93
94