Memorandum submitted by Human Rights Watch
Human Rights Watch thanks the International
Development Committee for the opportunity to submit comment towards
the ongoing inquiry, titled "Prospects for Sustainable Peace
in Uganda".
Human Rights Watch monitors human rights in
more than 70 countries around the world and has investigated violations
of human rights and international humanitarian law in northern
Uganda for more than a decade, issuing reports based on in-depth
fact-finding. In March 2007, Human Rights Watch conducted a mission
to Kampala and several locations in northern Uganda to assess
the work of the International Criminal Court and the developments
in the peace talks taking place in Juba, southern Sudan.
OVERVIEW
The current peace talks between the Ugandan
government and the Lord's Resistance Army (LRA) create prospects
for ending the devastating 21-year conflict in northern Uganda.
Since the conflict began in 1986, serious crimes in violation
of international law and other human rights abuses committed by
the LRA and, to a lesser extent, by government forces have been
documented by Human Rights Watch and other human rights organizations.
Human Rights Watch firmly believes that any
outcome for northern Uganda must include both a peace agreement
and fair, credible prosecutions of those responsible for the most
serious crimes committed by both sides during the conflict, together
with broader accountability measures. As discussed below, we believe
that such prosecutions are essential not only to accountability,
but also to establishing a durable peace.
Arrest warrants issued by the International
Criminal Court (ICC) for four LRA leaders for war crimes and crimes
against humanity provide a major opportunity to ensure justice
is done for at least some of the serious crimes committed. The
June 29 agreement between the parties on accountability and reconciliation
looks to possible national trials of those who "are alleged
to bear particular responsibility for the most serious crimes."
The ICC allows and favors national trials of its cases where possible.
However, consistent with the ICC's Rome Statute and international
standards, any national alternative to ICC trials should satisfy
the following substantial benchmarks as detailed in a May 2007
memorandum by Human Rights Watch:
— Credible, impartial, and independent
investigation and prosecution;
— Rigorous adherence in principle and
practice to international fair trial standards; and
— Penalties that are appropriate and
that reflect the gravity of the crimes.
Key governments such as the United Kingdom,
UN representatives, and the Uganda peace talks mediation team
have a crucial role to play in ensuring both peace and justice
are achieved in northern Uganda. We urge the United Kingdom to
use all appropriate influence toward this end, including calling
on the Ugandan government to ensure that any proposed national
trials for serious international crimes and other human rights
abuses meet these critical benchmarks.
The determination of the sufficiency of national
trials of ICC cases is ultimately in the hands of the ICC judges.
In the event that the above benchmarks are not met, the ICC should
remain the appropriate forum to try all persons for whom the ICC
has issued arrest warrants.
THE IMPORTANCE
OF CREDIBLE
PROSECUTIONS IN
ACCORDANCE WITH
INTERNATIONAL STANDARDS
The conflict in northern Uganda has been characterized
by serious human rights abuses and by violations of international
humanitarian law. These include willful killings, large-scale
abductions, forced recruitment of adults and children, sexual
violence against girls assigned as "wives" or sex slaves,
and large-scale looting and destruction of civilian property by
the LRA. These also include extrajudicial executions, rape, torture
and cruel, inhuman and degrading treatment, arbitrary detention,
and forced displacement by government armed forces.
International law mandates prosecutions and
appropriate punishment for serious violations of human rights
and humanitarian law. But the importance of justice goes beyond
legal obligations. Prosecutions send the message, especially to
would-be perpetrators, that no one is above the law. This can
help consolidate respect for the rule of law and contribute to
deterring future abuses, thereby helping to cement peace and stability.
As indicated in the UN secretary-general's 2004 report on transitional
justice: "[E]xperience...has demonstrated clearly that the
consolidation of peace in the immediate post-conflict period,
as well as the maintenance of peace in the long term, cannot be
achieved unless the population is confident that redress for grievances
can be obtained through legitimate structures for the peaceful
settlement of disputes and the fair administration of justice."
Human Rights Watch researchers spoke with displaced
persons in northern Uganda in March 2007. Nearly all expressed
an intense desire to return home and a number conveyed real concern
that ICC prosecutions could be an obstacle to peace in light of
LRA demands that the ICC arrest warrants be dropped. At the same
time, members of civil society suggested that a peace agreement
based on impunity is unlikely to be sustainable after victims
settle back home and realize that the crimes against them and
their loved ones have been excused. A distinct vocal minority
of displaced persons also declared a strong desire to see alleged
perpetrators tried.
In other countries, communities have experienced
how measures conferring immunity from prosecution for serious
offenses have had devastating consequences. In Sierra Leone, the
rebel leader Foday Sankoh, who had been implicated with his Revolutionary
United Front (RUF) in many war crimes, received an amnesty in
exchange for signing the Lome[acute] Peace Accord in 1999. Only
months later, Sankoh's RUF went on to attack government forces
and UN peacekeepers and continued to commit war crimes by taking
hundreds hostage and by committing rampant sexual assault. The
collapse of the accord also brought about a marked increase in
human rights abuses by government forces and a return to peace
only occurred two years later. Meanwhile, the Special Court for
Sierra Leone pursued prosecutions, including of government officials,
which helped to marginalize abusive leaders of the warring parties.
POSSIBLE NATIONAL
ALTERNATIVES TO
ICC CASES, AND
THE CRUCIAL
ISSUE OF
ADEQUATE PENALTIES
The ICC's arrest warrants for LRA leaders are
an important step forward to seeing justice done for some of the
most serious crimes committed during the conflict. It is with
this in mind that we examine the June 29 agreement on accountability
and reconciliation between the LRA and the government of Uganda.
The agreement, which will be further elaborated through implementing
protocols developed by the parties in the coming weeks, includes
important elements with respect to justice for serious crimes
committed in northern Uganda. In Articles 6.1 and 6.2 the agreement
provides for national trials to address international crimes and
other serious violations of human rights, including by members
of both the Ugandan armed forces and LRA. In addition, the agreement
recognizes a role for broader accountability measures, including
truth-telling and traditional justice, which Human Rights Watch
believes are important for rebuilding societies affected by conflicts.
The ICC's Rome Statute allows national trials
in lieu of ICC trials, but consistent with the Rome Statute and
international human rights standards, this option is only possible
if substantial benchmarks are met. In this regard, the new agreement
raises crucial questions on the issue of penalties. The agreement
provides for the introduction of "a regime of alternative
penalties" in Article 6.3 which will "apply, and replace
existing penalties, with respect to serious crimes and human rights
violations committed by non-state actors in the course of the
conflict." It is unclear from the agreement and public statements
what "alternative penalties" may be implemented and
what "existing penalties" will be replaced.
The Rome Statute's requirements for any national
alternative to its cases as detailed in Article 17 relate to whether
a state is able and willing to investigate and prosecute a case.
Article 17 does not explicitly discuss penalties. However, we
believe that the need for adequate penalties goes directly to
a state's unwillingness to investigate and prosecute, including,
as set out in Article 17(2)(c), when "proceedings...were
or are being conducted in a manner which...is inconsistent with
an intent to bring the person concerned to justice." The
Rome Statute's object and purposes as detailed in its preamble
and which include "affirming that the most serious crimes...must
not go unpunished" reinforce this assessment.
The jurisprudence and statutes of current international
and hybrid criminal tribunals have made clear the appropriate
penalty for serious international crimes: the ICC, the ad hoc
tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY),
and the Special Court for Sierra Leone (SCSL) all provide imprisonment
as the principal form of punishment. The ICC's primary penalty
under Article 77 is a specified number of years up to thirty years
or life imprisonment.
The statutes of these international and hybrid
criminal tribunals also indicate that penalties imposed should
be commensurate with the gravity of the offense, while also taking
into account individual circumstances, such as possible mitigating
factors. Case law from the Rwanda and Yugoslav tribunals further
supports the basic concept. Moreover, in assessing the gravity
of the offense, case law from these tribunals suggests that the
degree of an individual's participation and the role in perpetrating
an offense are significant. Specifically, an offender who plans
or acts in a leadership role has been viewed as committing a graver
offense than a subordinate.
Without addressing particular crimes or counts
on conviction, a 2002 study of sentencing practice at the Yugoslav
and Rwandan tribunals found that the mean sentence was 16 years
at the ICTY while the majority of individuals convicted by the
ICTR were sentenced to life imprisonment.
The Ugandan penal code likewise provides substantial
imprisonment as a penalty for serious domestic offenses. Ugandan
case law further reinforces the principle that penalties should
reflect the gravity of the crime and that imprisonment is an appropriate
penalty for serious crimes. A selection of relevant Ugandan criminal
appeals judgments available to Human Rights Watch indicates, for
example, that given the seriousness of the crime and the particular
circumstances involved, sentences from eight years to life imprisonment
were deemed appropriate in cases involving rape and defilement.
The Ugandan penal code also includes the death
penalty for serious domestic offenses, which is not permitted
by international and hybrid criminal tribunals and which Human
Rights Watch opposes in all circumstances as a cruel and inhuman
punishment.
Within this context, Human Rights Watch believes
imprisonment should be the primary penalty for the most serious
crimes committed during the conflict. We further believe that
any national proceeding allowing a "slap on the wrist sentence"
in the event of conviction for serious crimes would be wholly
inconsistent with the ICC requirement of "intent to bring
a person to justice."
THE ICC AS
THE ARBITER
OF THE
ADEQUACY OF
NATIONAL ALTERNATIVES
TO ITS
CASES
Under Article 19 of the Rome Statute, the ICC
judges decide whether a trial in domestic courts is an adequate
alternative to its cases. Article 19(10) of the Rome Statute also
suggests that if a national alternative does not meet the Rome
Statute's requirements, it can be brought back to the ICC for
trial. As such, national trials must be adequate not only in principle,
but in practice.
SUPPORT FOR
JUSTICE, SUSTAINABLE
PEACE, AND
RE -DEVELOPMENT
IN NORTHERN UGANDA
Human Rights Watch appreciates the ongoing engagement
by the United Kingdom in regard to northern Uganda. We expect
that your government will take every opportunity to insist on
an outcome that is consistent with international standards, including
the Rome Statute.
In addition, we call on the United Kingdom to
continue to support the government of Uganda in translating plans
for relief and reconstruction, including through the Joint Monitoring
Committee and the Peace, Recovery, and Development Plan, into
concrete improvements in the protection of human rights in northern
Uganda. Notwithstanding gains in improved security and humanitarian
access in the past 12 months, we note that more than one million
persons remain confined to camps and settlement sites for the
internally displaced in northern Uganda.
We thank the committee for their interest in
these important issues.
Richard Dicker
International Justice Director, Human Rights Watch
Tom Porteous
London Director, Human Rights Watch
10 July 2007
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