Category Archives: In the News

“Justice and Reconciliation Project reports on Acholi perceptions of the Amnesty Act,” Resolve Blog, 9 Jan 2012

“Justice and Reconciliation Project reports on Acholi perceptions of the Amnesty Act,” Resolve Blog, 9 Jan 2012 
http://www.theresolve.org/blog/archives/3071031799

 

By Azy

We’re fans of the folks at The Justice and Reconciliation Project (JRP) — they’re great people doing great work. Recently, JRP released an interesting report that focuses on the feelings and perceptions of LRA-affected communities in northern Uganda toward Uganda’s Amnesty Act.

The Uganda Amnesty Act of 2000 grants amnesty to any rebel combatant from 1986 onward who lays down his or her weapons and renounces the rebellion. According to JRP’s report, more than 10,800 former members of the LRA have received amnesty through the Act as of August 2008, and have re-joined their communities with less harassment and stigma than they otherwise would have experienced without this national policy of forgiveness. The Amnesty Act has been shown to actively encourage combatants to defect from the LRA, with the promise that they will be accepted back home. This is very important, as so many LRA combatants were abducted as children and were unwilling combatants in the first place.

As reflected in the report, JRP researchers interviewed a spectrum of Acholi community members, from local leaders to former-abductees, and asked what they thought of amnesty. Their findings show overwhelming support for the Amnesty Act and many respondents argued that Uganda’s amnesty policy is partially to thank for the peace that the region has experienced since the LRA left Uganda’s borders in 2006. It helps clean the slate and faciliate forgiveness for the unwilling fighters, from both their community and their country.

Interestingly, some of the respondents said they wished that even the top commanders would be granted amnesty, arguing that almost everyone aside from LRA leader Joseph Kony was at one time a victim.

Currently, the Amnesty Act of 2000 is due to either expire or be extended in May 2012, making JRP’s report especially timely.

In this same vein, this spring Resolve will be lobbying our leaders in Washington with the recommendation that part of the $10 million in foreign aid Congress recently authorized for the LRA-affected communities should go towards the rescue, rehabilitation, and reintegration of LRA combatants.

In the case of the LRA, amnesty is an important component of peace and restoration that must go hand-in-hand with focused efforts to support ex-combatants as they seek healing and reintegrate with their communities.

This report is just 3 pages long and fascinating from beginning to end. Take a few minutes to read it yourself.

“Kwoyelo Amnesty Raises Questions about Ugandan Justice,” International Justice Resource Center, 30 Nov. 2011

“Kwoyelo Amnesty Raises Questions about Ugandan Justice,” International Justice Resource Center, 30 Nov. 2011
http://ihrlaw.org/2011/11/30/kwoyelo-amnesty-raises-questions-about-ugandan-justice/

In Uganda, amnesty for an alleged Lord’s Resistance Army commander, Thomas Kwoyelo, by the country’s High Court has raised questions regarding the future of transitional justice there.  Kwoyelo had been the first person charged by the International Crimes Division of the High Court for murder and other acts allegedly committed during nearly two decades of attacks by LRA forces on civilians in Uganda and the Democratic Republic of Congo (detailed background here).  Although the grant of amnesty was upheld on appeal, the attorney general has appealed again to the Supreme Court.  Many LRA rebels were granted amnesty under the Amnesty Act of 2000, but Kwoyelo had been denied without explanation when he applied. [Sunday MonitorBBCRNW]  Other LRA leaders indicted by the International Criminal Court have yet to be captured (Kwoyelo is not sought by the ICC). [ICC]

Kwoyelo’s trial on charges of grave breaches of the Geneva Conventions began in July 2011 (see HRW report here).  As reported by Human Rights Watch:

Kwoyelo’s defense counsel signalled to the court that they would raise three preliminary objections to the trial. One would be in regard to the state’s failure to apply Uganda’s Amnesty Law to Kwoyelo, although thousands of other LRA combatants have been granted amnesty under the act. The second would be to the fact that they had yet to receive full disclosure of the prosecution file, including exculpatory evidence. The third would be to the application of the Geneva Conventions Act to Kwoyelo’s alleged conduct.

[HRW] The International Crimes Division then sought an interpretation of these issues by the appellate court, which ruled on September 22 that Kwoyelo was entitled to amnesty under the law and as a matter of equal protection.  When the prosecution sought a stay of the order to release him, on November 10, the appeals court confirmed its September ruling  and held Kwoyelo should be freed.  Recently, when Kwoyelo remained in custody despite the court’s order, the International Crime Division of the High Court urged the public prosecutor to apply the amnesty and set him free. [AllAfricaJustice and Reconciliation; Yahoo;  Insight on Conflict]

As reported by the Justice and Reconciliation Project, residents in Kwoyelo’s hometown in northern Uganda who identify Kwoyelo “as the face of the LRA” blamed him for the atrocities committed there and “feel strongly that he should not return and fear his presence in the area.”  Further, the Project reports, “victims expressed frustration over inconsistent dealings with the ICD and a lack of communication about current developments in Kwoyelo’s case”. [JRP]

“Col. Kwoyelo rearrested within minutes of his release by High Court in Gulu,” Acholi Times, 14 Nov. 2011

“Col. Kwoyelo rearrested within minutes of his release by High Court in Gulu,” Acholi Times, 14 Nov. 2011
http://www.acholitimes.com/index.php?option=com_content&view=article&id=511%3Acol-kwoyelo-rearrested-within-minutes-of-his-release-by-high-court-in-gulu&catid=8%3Afront-news&Itemid=95

By Livingstone David Okumu

Uncertainty swept through the courtroom in Gulu High Court on Friday after former LRA Colonel Thomas Kwoyelo was whisked away under tight security to Gulu prison minutes after the International Crimes Division directed that he be set freed immediately. Col Kwoyelo, who was facing 53 counts of war crimes and crimes against humanity, was officially set free at 11:30 am after a 2 hour delay on Friday 11 November 2011.

The head of the court, Justice Dan Akiiki Kiiza after a brief apology to the court over the delay in convening the court said that they were simply following a directive from the Constitutional Court after its ruling on the 22nd September.

The Constitutional Court had ruled that the denial of Col Kwoyelo’s application for amnesty by the DPP was unconstitutional and contradicted articles 1, 2, 20 and 21 of the constitution of Uganda.

Justice Akiiki said the court in releasing Col Kwoyelo was simply following the directive of a higher authority.

“We hereby cease the trial of the accused Thomas Kwoyelo alias Latoni forthwith. And consequently direct the DPP and the Amnesty Commission to comply with the provisions of the amnesty act” he ordered before ending the session.

The court room burst into a murmur of approval as Kwoyelo, wearing matching green shirt and trousers, was directed by prison warders, into the back of the court.

However, the crowd, including his mother and sisters, who attended the session waited for more than 45 minutes in the hope of seeing Col Kwoyelo released, only to see him whisked away in two prison pickup trucks led by a police escort truck.

His mother, Rosolina Oyela said she was surprised by the incident because she expected to go back home with her son.

His lawyer, Francis Onyango declined to comment on the matter.

“I have no comment because there is a Supreme Court case over the issue,” he said.

Civil society, cultural and religious leaders in the region reiterated their called for the promotion of Mato Oput way of justice to the war affected communities in northern Uganda. Lino Owor Ogora, the head of research and documentation at the Justice and Reconciliation Project, said the way forward is to reconcile Kwoyelo with the victims in Pabbo.

He said technically Kwoyelo is free but realistically he is not since a needed to be face the communities of his victims to ensure that he leads a normal life in their midst.

Kwoyelo was whisked to Kampala after a brief stay a Gulu prisons.

“State ignores court ruling over Kwoyelo,” Daily Monitor, 13 Nov. 2011

“State ignores court ruling over Kwoyelo,” Daily Monitor, 13 Nov. 2011
http://www.monitor.co.ug/News/National/-/688334/1271924/-/bgurw8z/-/

By Moses Akena and David Livingstone Okuuu

Former Lord’s Resistance Army commander Thomas Kwoyelo was on Friday whisked off to prison despite a ruling by the International Crimes Division of the High Court set ting him free.

Justice Dan Akiiki Kiiza ordered for the release of Kwoyelo following an order by the Constitutional Court.

“We hereby ceased the trial of the accused person (Kwoyelo) alias Latoni forthwith. And consequently we hereby direct the Directorate of Public Prosecutions (DPP) and the Amnesty Commission to comply with the provisions of the Amnesty Act,” said Judge Akiiki.

Mr Frank Mayanja Baine, the Prisons spokesperson, last evening confirmed the continued detention of Kwoyelo, saying he is still facing two other charges.

“We work on documents and for someone to be released on amnesty, he or she must have a certificate, which Kwoyelo has not got, to be released. Once he gets the certificate and other documents for his release then we shall release him,” he said in a telephone interview.

Kwoyelo’s mother, Ms Rosolina Oyela, said she was surprised by the incident because she expected to go back home with her son.

His lawyer Francis Onyango, however, declined to comment on the matter. “I have no comment because there is a Supreme Court case over the issue,” he said.

Civil society want reconciliation
The court, however, did not mention the Supreme Court appeal.

Civil society actors in the region reiterated their call for reparations to war affected communities in northern Uganda, and reconciliation.

Mr Lino Owor Ogora, the head of research and documentation at the Justice and Reconciliation Project, said the way forward is to reconcile Kwoyelo with the victims in Pabbo.

Kwoyelo is the first LRA commander to be prosecuted for crimes committed during the two-decade war in northern Uganda that left thousand dead and millions displaced. He was captured in 2008 during Operation Lightning Thunder in Garamba Forest, eastern DR Congo.

The ICC in 2005 issued an arrest warrant for five top LRA commanders, including their leader Joseph Kony, Dominic Ogweng, Onen Kamdul and two others who died in the bush. Kony is said to be operating between Central African Republic and Sudan.

“US Troop Deployment Revisited – The Hunt for Kony,” Justice in Conflict blog, 3 Nov. 2011

“US Troop Deployment Revisited – The Hunt for Kony,” Justice in Conflict blog, 3 Nov. 2011
http://justiceinconflict.org/2011/11/03/us-troop-deployment-revisited-%E2%80%93-the-hunt-for-kony/

By Patrick Wegner

US President Barack Obama’s decision to send 100 combat armed military advisors to Uganda, Central African Republic (CAR), the Democratic Republic of Congo (DRC) and Southern Sudan made worldwide headlines about three weeks ago. The controversial decision and discussions about its consequences brought the LRA conflict back into the headlines after the world had all but forgotten about the steady trickle of mutilations, killings and abductions mainly committed in the DRC and CAR by the LRA. One thing has become very clear to me in interviews with diplomats and staff of international organizations that are working in the context of the conflict: the LRA is no longer seen as a threat for regional stability. This means that the LRA conflict has ceased to matter in the big picture of geopolitics. It is another one of those low intensity conflicts that claim the lives of innocent civilians on a daily basis but are not endangering the security interests of powerful nations. What does the US troop deployment mean in this context?

Since foreign policy practitioners do not see the conflict as a risk to regional stability, President Obama’s move could be regarded as a surprise. Yet, it makes perfect sense both in a US domestic as well as in an international perspective. The US has seen constant campaigning by civil society organizations like Enough and Invisible Children who pressure the US administration to do something about the deaths of innocent civilians in Central Africa. The campaigning led to the signing of the LRA Disarmament and Northern Uganda Recovery Act by Barack Obama in May 2010. A high ranking diplomat I talked to a couple of weeks before the troop deployment told me that he expects the US to ‘do something’ in the LRA context soon, as a Congress report on the LRA Act was upcoming in late October and the administration needed to be seen doing something. His prediction proved right.

From the international perspective, Uganda is of high strategic importance in the region. The Uganda People’s Defence Forces (UPDF) is one of the strongest armies in the area. It plays a major role in the UN Mission in Somalia, provides staff for UNAMID in Darfur, and plays the leading role in regional efforts to hunt down the LRA. The fact that the UPDF is providing troops for these missions removes pressure from Western nations to deploy their own troops in the region. Finally, the recent discovery of oil has just increased Uganda’s importance. The decision can therefore also be seen as an acknowledgement of the important role Uganda is playing in the region.Many Ugandans I talked to are deeply distrustful of the US intervention. Most people think that the US is showing up now, years after the war ended in northern Uganda, because oil has been discovered in Amuru. Yet, the LRA is no longer a Ugandan issue. The LRA has spread over three states in the region, and people are still dying. So there are valid arguments for intervening on humanitarian grounds. But what is the impact of the deployment we can expect on the ground? Critics like Lindsay McCain of the Justice and Reconciliation Project from northern Uganda say that the deployment of US military advisors will reinforce the military logic of the conflict and lead to the death of innocent abducted children that travel with the LRA. She criticises the lack of a humanitarian component and a focus on protecting civilians in the affected regions from LRA attacks. I think those arguments are valid and point out a significant weakness of the US approach to combating the LRA. Yet, the deployment of US advisors might still help to stop the conflict and end the suffering of civilians in the longer term.

The US has been supporting the UPDF for several years. In the beginning, this support was mainly given through financial aid for the military budget. During Operation Lightning Thunder, that marked the end of negotiation efforts during the Juba Peace Process and was meant to ‘wipe out’ the LRA, US military advisors provided the UPDF with information and advice. Still the operation failed. Afterwards, the US supported the hunt for Kony and the remaining LRA rebels through providing the UPDF with GPS data and satellite imagery. Yet, the UPDF was not sufficiently equipped to act on that information. On the one hand, they had no means to use the exact GPS data the US provided them with, on the other hand the UPDF rapid response capacities were insufficient to hunt down the LRA fast enough.

The deployment of US military advisors on the ground who can help the UPDF to make use of the data forwarded by US military intelligence could make a real difference. The UPDF has been close to capturing or killing Kony at least twice in recent years. In August 2009, the UPDF ran into Joseph Kony’s bodyguards in CAR and killed several of them in the ensuing gunfight, yet Kony managed to escape while being chased by the UPDF.

In October 2011 the UPDF again ran into Kony’s entourage according to the UPDF spokesman. Kony moves inside several circles of security perimeters. Three rings of bodyguards move constantly with him, and as soon as the outer ring engages in combat, Kony has the opportunity to quickly flee into the opposite direction. But chances are that Kony will eventually run out of luck if the UPDF is able to track his group more closely with the help of US military advisors.

We might well see the end of Joseph Kony’s flight soon. Whether this would mean the end of the conflict is not clear though. The LRA has splintered into ever smaller groups and it is not clear in how far Kony still has full control of them. Independent LRA groups may be roaming through CAR and DRC abducting and killing civilians for years after Kony’s death or capture. Additionally, UN sources have told me that many armed groups and militias in the DRC have started mimicking LRA attacks to cover up their robberies. It is hard to say how much of the ‘LRA activity’ we see in the region is actually local banditry.

Finally, on an interesting side note, a former top LRA Commander I was able to talk to told me that Joseph Kony had announced as early as 1998 that his spirits had revealed to him that Ugandans would bring in the US to hunt him. Kony made a prophecy that the war would end when the US becomes involved. They would not be able to catch him, but would help the Acholi of northern Uganda to recover from the war. Kony said that his spirits revealed to him that he would just disappear in the jungle, ‘like Moses disappeared after leading his people to the Holy Land’. The spirits told him that the US would come to search for him, only to eventually find out that he had disappeared without a trace for ever.

‘I cannot accept what I have not done’: Storytelling, Gender and Transitional Justice, Journal of Human Rights Practice, 4 Nov. 2011

‘I cannot accept what I have not done’: Storytelling, Gender and Transitional Justice, Journal of Human Rights Practice, 4 Nov. 2011

http://jhrp.oxfordjournals.org/content/early/2011/11/04/jhuman.hur015.full#xref-ref-30-1

By Erin Baines and Beth Stewart

Note: JRP’s Gender Justice department assisted in this research.

Abstract

Storytelling can be a process of seeking social equilibrium after violence. We examine this proposition through the stories of Ajok, an Acholi woman who was abducted by the rebel group, the Lord’s Resistance Army (LRA) in northern Uganda and who was forced into marriage and motherhood. We consider how her stories contest discrimination by her neighbours and family since her return, creatively reinterpreting the past to defend her innocence and moral character

throughout the war and to defend her rightful place in present society as an Acholi woman and mother. The article concludes by reflecting on the value of locally based and culturally relevant storytelling for survivors in the field and practice of transitional justice.

To read the full article, click here

“The Archive in the Witness: Documentation in Settings of Chronic Insecurity,” IJTJ, 20 Oct. 2011

“The Archive in the Witness: Documentation in Settings of Chronic Insecurity,” International Journal of Transitional Justice, 20 Oct. 2011
http://ijtj.oxfordjournals.org/content/early/2011/10/19/ijtj.ijr025.abstract?sid=5452fb38-03f4-4274-bbe1-7adbdd264905

By Pilar Riaño-Alcalá and Erin Baines

Abstract

Through an exchange between members of community-based organizations that document human rights violations in northwest Colombia and northern Uganda, this article examines multiple strategies of memory making in which an individual or a collective creates a safe social space to give testimony and re-story past events of violence or resistance. In settings of chronic insecurity, such acts constitute a reservoir of living documents to preserve memories, give testimony, contest impunity and convey the meaning, or the ‘truthfulness,’ of survivors. The living archive disrupts conventional assumptions about what is documentation or witnessing in the field of transitional justice and introduces new interdisciplinary tools to the field with which to learn from and listen differently to survivors.

To read the full article, click here.

 

“Targets or Captives? Obama’s LRA Challenge,” CIC, 19 Oct. 2011

“Targets or Captives? Obama’s LRA Challenge,” CIC, 19 Oct. 2011
http://www.opencanada.org/features/targets-or-captives-obama%e2%80%99s-lra-challenge/#.Tpydk0dlwRk.facebook

By Erin Baines

Last week in Gulu, northern Uganda, in what might seem like a rather ordinary event, something remarkable happened: Grace gave birth, surrounded by her female friends.  After more than thirty hours of hard labour and an emergency caesarean section, Grace’s tiny baby girl was placed into her arms. The bringing of new life into this world is always special, but this time it represented a moment in which a group of friends that had suffered through decades of war, each having lost family members, opportunities to study and their own childhood, could hope again.

The women were all once abductees of the Lord’s Resistance Army (LRA). They have all lived, grown up, and borne children inside the confines of the rebel group’s camps.  Grace herself was abducted by the rebels at the age of 14 and forced to marry a rebel commander.  The birth of her daughter amongst so much love is the promise of new life.

The women now work in a small project in northern Uganda, the Justice and Reconciliation Project (JRP), to help victims of the war tell their story, to heal and to seek social change. I have worked with this group since they began in 2005 and watched them come together as a family that loves and cares for each other, helping each other rebuild their own lives as well as that of others who lost. They are a stark reminder that, while the rebel leader Joseph Kony remains free and continues to commit atrocities, he is surrounded by literally hundreds of people who were forced into, and now find home in his confines.

Today U.S. President Barack Obama announced he is deploying 100 “combat-equipped” troops to Uganda to help efforts to arrest or eradicate rebels of the Lord’s Resistance Army (LRA) – rebels responsible for the suffering of millions of people in Uganda and neighbouring countries. The U.S. troops will work with the Ugandan military to root out the rebels and put an end to their more than two decades of terror. The LRA is one of the cruellest, most brutal rebel groups known, abducting tens of thousands of children like Grace and forcing them to fight in a war, or to be wives to commanders. In addition to abduction, the rebel signature is the murder, mutilation, rape and plunder of civilians.

Originally operational in Uganda and later Sudan, the LRA’s numbers and strength have dwindled in recent years. In 2003 a Ugandan-led military operation against LRA bases in Sudan led to the escape or release of many captives, including Grace, and the capture of commanders. But the leadership, including enigmatic spirit leader Joseph Kony and military war criminals like Okot Odhiambo remain at large, and continue to abduct, kill and maim civilians in the Democratic Republic of Congo, Central African Republic and in South Sudan, where they operate across borders in small mobile groups. Indicted by the International Criminal Court for war crimes and crimes against humanity in 2005, these are men everyone wants to see stopped and held accountable.

Obama’s decision to send troops seems like a positive step. The countries affected support the military action to end human suffering and welcome the troops to defeat a small rebel group that has caused so much damage. Certainly the young activists who have long demanded Obama, and before him George W. Bush, to do something –  anything – to end the atrocities of the LRA are cheering.  Human rights activists in the U.S. and around the globe have done everything in their power to direct attention to the suffering of abducted children and communities affected by the LRA. Groups like Resolve, Invisible Children and Enough have tried a range of advocacy tactics from holding house parties to raise awareness of American youth, abducting themselves until local politicians or notables agreed to help, talking to Oprah and more conventional tactics like mobilizing massive numbers of students to lobby their state representatives to push a bill on the LRA through Congress.

One of the most impressive strategies to date has been the creation of the LRA tracker, which creates a visual database of all LRA atrocities – each attack, abduction or murder – they currently commit as they move through north eastern Congo today, made possible by working with local organizations working on the ground to solidify communication and protection networks. Surely Obama, whom leaders of these young activists have met, was inspired by their own courage to do something too.

Grace and others who were abducted and escaped during the campaign against the rebels in Sudan, however, worry. Over the years I have worked with JRP in northern Uganda, I have witnessed the team learn when someone had escaped and arrived at the reception centre, only to rush there to console the person now safe and to assure that life can begin anew. Once those who reach safety are healthy – for many return with varying states of malnutrition, disease and wounds of war – Grace and the team work to help them reunite with their families, to find housing and employment, and to soothe them through periods of mourning for those they lost. They tell stories of the days with the rebels, the difficulties of life on the battlefield being chased by the Ugandan army. Some women gave birth without any medical attention under a tree as bullets were exchanged.  Others described the moment they realized their child had been hit by a bullet, how there was no time to do anything but lie the child down and continue to flee.  Grace knows these painful stories more than anyone else; her five-year-old son, born of forced marriage, was killed when a military bomb was dropped on him in 2004.

So while the military action is a triumph of years of activists and victims calling for the world to intervene and to stop this campaign of violence, I am reminded by the birth of that baby girl that LRA commanders surround themselves with those they have abducted, with innocent women, men and children, who have nothing to do with this war but who suffer as their captives.

The LRA has always been unique in this manner. For years they moved with mothers and children as they fought, refusing to release them. The commanders surround themselves with child soldiers (girls and boys who form the front line). But the LRA is also unique in that some of the commanders themselves are victims. For instance, one of the most wanted commanders, ICC indicted Dominic Ongwen, was captured around 1990 when he was about ten years old.  At some undefined point, the international community decided that Ongwen no longer deserved the right to be rescued by the international community, but to be hunted down and held accountable for this war.

The abduction of children and birth of children into the LRA complicates questions of justice and humanitarian intervention in what, at first blush, seems like an easy victory for Obama’s foreign policy team. But as those hundred U.S. soldiers arrive to shore up the Ugandan military’s effort, will they know how to differentiate a rebel from a child who is captive? Will bombs land only on the commanders responsible, sparing the lives of the children? I would feel much more relief if I was reassured that their tracking technologies are equipped to help those being held against their will – some who have been there for decades, others only months – to find their way home. The chance for new life for babies born into love after so much suffering and death depends on the wisdom of Obama and others who join them to end this war, to know the difference. In addition to a military operation to capture Joseph Kony, this must also be a humanitarian mission to free those whose lives he has tried to destroy.

Erin Baines is co-founder of the Justice and Reconciliation Project (JRP) in Gulu, Uganda.

Photo by Lara Rosenoff-Gauvin: Beatrice in Padibe IDP Camp, Kitgum District, Northern Uganda 2007. Beatrice was abducted by the LRA when she was 12 and served 2 years before escaping. 1 in 5 girls and 1 in 3 boys have been abducted at some point by the LRA to serve as ‘child soldiers’ in Northern Uganda. www.hernameisbeatrice.com

“Amnesty is the price northern Uganda paid for peace in the region,” Daily Monitor, 4 Oct 2011

“Amnesty is the price northern Uganda paid for peace in the region,” Daily Monitor, 4 Oct 2011
http://www.monitor.co.ug/OpEd/Letters/-/806314/1247450/-/10tmcoj/-/index.html

By Lino Owor Ogora

On September 22, the Constitutional Court ruled that ex- LRA commander Thomas Kwoyelo, was entitled to amnesty in line with Uganda’s Amnesty Act 2000. This ruling attracted mixed reactions from various sections of the public.

The question of whether or not to offer war criminals amnesty has always been controversial. It is a question that peacemakers around the world have had to grapple with. Many peace processes have been successful because of amnesty offered to perpetrators. In South Africa for example, amnesty was pivotal in ensuring that the leaders of the apartheid regime negotiated with and eventually handed over power to the African National Congress. It also encouraged many perpetrators who had committed war crimes to confess, which in some instances even led to the recovery of human remains which had been secretly buried. In West Nile, amnesty proved a critical factor in determining the surrender of the West Nile Bank Front II.

Likewise, in northern Uganda, amnesty is the price we have had to pay for peace. Amnesty in northern Uganda was so effective that it led to the surrender of many top commanders. According to the Amnesty Commission’s records, over 10,000 LRA combatants abandoned rebellion and were granted amnesty. Amnesty was even more critical given that the majority of the LRA army was composed of children abducted and turned into rebels. Kwoyelo falls into this category, having been abducted when he was only 15 years old.

But for many people, this part of Kwoyelo’s history does not matter. They feel he has to be punished for what he is now. While I agree that Kwoyelo must be held accountable, we should also keep in mind the circumstances surrounding him. The case of Kwoyelo is critical in ensuring that not all LRA fighters are viewed as a homogenous group of killers, which will enable us devise means of handling them on a case by case basis, a factor which was missing in Kwoyelo’s trial.

If it were not for amnesty, millions of people would still be living within IDP camps. Thousands more children would have been abducted, and even the Juba peace talks which ushered in the prevailing peace in northern Uganda would not have taken place.

It is not surprising that most of the people baying for Kwoyelo’s blood are those who live in comfort and safety outside northern Uganda. While such people may sympathise with victims, they do not understand the situation on the ground. If you lived in northern Uganda during the period of the insurgency, you would understand and appreciate the prioritisation of ‘peace first justice later’. It is because of this prioritisation that northern Ugandans were at the forefront of advocating amnesty as a crucial factor in ending the conflict.

Lino Owor Ogora,
Justice & Reconciliation Project, Gulu District

“Analysis: Should child soldiers be prosecuted for their crimes?,” IRIN News, 6 Oct. 2011

“Analysis: Should child soldiers be prosecuted for their crimes?,” IRIN News, 6 Oct. 2011
http://www.irinnews.org/report.aspx?reportid=93900

JOHANNESBURG, 6 October 2011 (IRIN) – International human rights law meanders between the vague and the hazy when it comes to its stance on the age of criminal responsibility and what, if any, punishments should be imposed on child soldiers guilty of war crimes.

The godfather of human rights laws, the Geneva Conventions, oblige all member states to act on grave breaches of human rights, but does not stipulate the age of criminal responsibility.

Robert Young, deputy permanent observer and legal adviser to the International Committee of the Red Cross (ICRC) based in New York, told IRIN international humanitarian law (IHL) remains “silent” on the age of responsibility for perpetrators of grave human rights abuses, such as wilful killing, torture and inhumane treatment.

International Criminal Court (ICC) Article 26 prevents the court from prosecuting anyone under the age of 18, but not because it believes children should be exempt from prosecution for international crimes, “but rather that the decision on whether to prosecute should be left to States,” says the Office of the Special Representative of the Secretary-General (SRSG) for children and armed conflict (Working Paper Number 3: Children and Justice During and in the Aftermath of Armed Conflict, September 2011). “[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes,” it noted.

The age of criminal responsibility varies from country to country, from 7-16, but the bar is most commonly set at 14.

Although IHL does not set a minimum age for criminal responsibility for international crimes, it is argued that a yardstick has been laid down for some form of indemnity through IHL’s recognition that recruitment of child soldiers under 15 was a war crime.

The Children and Justice During and in the Aftermath of Armed Conflict report says: “If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or armed groups.”

“Children are often desired as recruits because they can be easily intimidated and indoctrinated. They lack the mental maturity and judgment to express consent or to fully understand the implications of their actions… and are pushed by their adult commanders into perpetrating atrocities,” the report said.

That children should be held accountable for their crimes during conflicts was acknowledged by the report, but “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”

The report said child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities… There are instances where children are accused of crimes under national or international law and are prosecuted before a criminal court. Prosecution of a child should always be regarded as a measure of last resort and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.”

Victims and perpetrators

The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) did not cite a minimum age for criminal responsibility, but no one under 18 appeared before the tribunals. The Statute of the Special Court for Sierra Leone (SCSL) provided the court with jurisdiction over any person above 15, but the court’s prosecutor decided against indicting children for war crimes because of their dual status as both victims and perpetrators.

It may appear a grey area easily resolved by providing indemnity for crimes committed by child soldiers under the age of 15, but Radhika Coomaraswamy, SRSG for children and armed conflict, noted – in a 2010 article for the International Journal of Children’s Rights:The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification – that such a provision could be perversely used.

“If minor children who have committed serious war crimes are not prosecuted, this could be an incentive for their commanders to delegate to them the dirtiest orders, aiming at impunity. For this reason the ICC and SCSL focus strongly on those persons most responsible for human rights and IHL violations and apply the concept of command responsibility to political and military leaders,” Coomaraswamy said.

Command responsibility does not necessarily remove individual culpability for serious human rights violations by lower ranks or subordinates, but “rather it traces liability back up the chain of command,” said legal adviser to the ICRC Young.

When child soldiers become adults

Dominic Ongwen was about 10 when he became a soldier with the Lord’s Resistance Army in the 1980s.

The ICC issued an arrest warrant for him in October 2005 for crimes against humanity, including enslavement of children. However, jurisdiction by the court does not extend to crimes committed by people under 18, and before 2002 when the Rome Statute entered into force. The crimes cited are for when Ongwen was an adult.

“Ongwen is the first known person to be charged with the same war crimes of which he is also a victim,” the Justice and Reconciliation Project, a Ugandan NGO concerned with transitional justice, said in a 2008 field note entitled Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen

“[Ongwen and other child soldiers] represent precisely the kind of complex political victims who, if excluded from justice pursuits, could give birth to the next generation of perpetrators in Uganda; generations marginalized by the judicial sector and who have nothing to gain from citizenship and nothing to lose from war,” the field note observed. 

The Lubanga case

Tomaso Falchetta, Child Soldiers International (CSI) legal and policy adviser, told IRIN child soldiers should be viewed as victims and the NGO opposed their prosecution, as emphasis should be on the criminal responsibility of the adult recruiters. CSI “does not advocate for a cut-off point [for the prosecution of child soldiers], as it is a difficult issue.”

The first person to stand trial at the ICC for enlisting children under 15 was former Democratic Republic of Congo (DRC) warlord Thomas Lubanga. His trial at The Hague is nearing completion after he allegedly recruited underage children into the Patriotic Forces for the Liberation of the Congo (FPLC) during the conflict in Ituri, a district in the eastern DRC, between 2002 and 2003.

An international humanitarian law expert, who declined to be identified, told IRIN Lubanga’s case was “tremendously important” as “it will make others pause and think… Every rebel leader must be aware of this case.”

Falchetta said it was “difficult to provide an empirical judgement on that [Lubanga’s ICC prosecution being a deterrent]”, and rather that accountability needed to be enforced at the national state level to discourage the continued use of child soldiers.

The former DRC president, Laurent Kabila, said in 2000 the armed forces would demobilize all child soldiers but a year after he made the commitment, four DRC child soldiers aged 14-16 were granted clemency, after death sentences imposed by a military tribunal led to international condemnation from human rights organizations. A 14-year-old child soldier was reportedly executed the previous year.

Capital punishment for persons under 18 violates the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. The DRC is party to both international human rights treaties.

“The DRC laws may be there [the use of child soldiers is illegal], but when it comes to implementation, investigation and prosecution [of adult recruiters], we’ve seen little of that,” Falcetta said.

The CSI said in an April 2011 report (entitled Report to the Committee on the Rights of the Child in Advance of the DRC initial report on the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict) that “hundreds of children remain in the ranks of the national armed forces (Forces Armées de la Republique Démocratique du Congo) despite legal and policy obligations to release them and government pledges to do so.”

Laws of war

Matthew Happold of Hull University in the UK said in 2005 paper entitled The Age of Criminal Responsibility in International Criminal Law there were “good reasons” for regulating criminal responsibility of international crimes through international law as they were “often distinguished from crimes under national law because they transcend national boundaries and are of concern to the international community.”

He said, in the paper presented at the Hague Academic Coalition’s conference on international criminal responsibility, that from the perspective of a defendant, “it would seem wrong for an individual’s liability under international law to depend upon the place of prosecution…. States are obliged to prosecute and punish offenders. Permitting States to decide their own age of criminal responsibility would allow them to determine the scope of their international obligations.”

Child soldiers, like any other combatants are subjected to the Nuremburg principle that holds: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

ICC’s Article 33 determines that acting on orders from superiors was not a defence of criminal responsibility but there are mitigating circumstances, and among them, is that a person may be relieved from prosecution if they did not know the order was unlawful.

However, the commission of “manifestly unlawful” crimes, such as genocide or crimes against humanity cannot be mitigated.

Young said the “so-called `defence of superior orders’… the [Nuremberg] principle that `I was just following orders’ can no longer relieve any of us of criminal (and moral) responsibility for unconscionable acts we commit at the behest of others.”

However, Rule 155 of Customary IHL, provided leeway, where “coercion and duress may provide exceptions… and one can quickly imagine how this principle might mitigate the responsibility of a child soldier who was forcibly recruited and forced, under threat of harm, to commit war crimes,” ICRC adviser Young said.