Friends For Peace In Africa

Friday, 22nd February, 2008 (New Vision, Kampala)

ANALYSIS

By Vision reporter

The agreement signed on Monday night by the LRA and the Government has evoked mixed reactions. The agreement provides for a special division of Uganda's High Court to prosecute serious crimes committed in the northern war.

While the US-based watchdog Human Rights Watch welcomed it as a "major step toward peace and justice for northern Uganda", Amnesty International insists Joseph Kony and his commanders should be tried by the International Criminal Court (ICC).

Another organisation, Refugees International, called for the suspension of the ICC indictments for one year, allowing for alternative accountability options to be developed, in the interests of peace and security.

Amnesty International
Amnesty International has rejected the idea of having Kony and his commanders tried by a special Ugandan court.

"It is not acceptable for the Ugandan Government and the LRA to make a deal that circumvents international law," said Christopher Keith Hall, Senior Legal Adviser of Amnesty International in a statement.

"They (LRA commanders) must be handed over to the ICC so that their guilt or innocence can be determined once and for all. The people of Uganda deserve no less."

He doubted if the LRA leaders would get a fair trial in Uganda.

"At the moment, we have no evidence to suggest that even a new court established in Uganda to deal with these cases would be able and willing to do so in fair proceedings that are not a sham."

Amnesty International calls upon the Ugandan Government to carry out the international arrest warrants against Kony and the other two indicted commanders

Once the men have been handed over, Uganda may then apply to have the cases returned to Ugandan courts, it notes.

Amnesty International ignores a crucial factor that the indicted LRA commanders are hiding in the jungles of the DR Congo. Uganda cannot arrest them without violating Congo's sovereignty. Neither the Congolese army nor MONUC seem to have the political will or capacity to carry out the arrest warrants.

Human Rights Watch
Contrary to Amnesty International, Human Rights Watch has welcomed the idea of setting up a special court in Uganda for the most serious crimes committed in the northern war.

Richard Dicker, the organisation's International Justice Programme director noted that the ICC statute favours national trials, provided these are credible, independent, meet international standards and impose penalties proportionate to the gravity of the crime, namely imprisonment.

He, however, observed that the Ugandan justice system needs reform to ensure security, witness protection and support, and outreach to the affected communities.

"We are talking about holding highly sensitive trials in a country with a history of attempted interference with the judiciary and no real witness-protection programme,” Dicker says.

It is up to the ICC judges to determine whether the Ugandan trials are an adequate alternative to prosecution by the ICC, Human Rights Watch argues.

Contrary to the LRA propaganda, the indictments by ICC have helped to move the parties to the negotiating table, the statement said.

The main question is whether Kony and his commanders will accept to surrender themselves to the Ugandan courts and, during the trial period, be in the custody of a government they fought for over 20 years.

Refugees International
A third position is formulated the Washington-based NGO.

While acknowledging the role of the ICC in forcing the LRA to the negotiating table and bringing relative calm to Northern Uganda, it wonders whether the indictment will bring surrender.

Kony and the other indictees know the indictment will ultimately lead to their incarceration, the organisation argues in a report titled: Uganda: Challenges of Peace and Justice.

Yet, if the Ugandan courts would go for alternative penalties, such as reparation, it would be considered as inadequate and not adhering to international standards, it adds.

"If the final agreement does not include imprisonment as a punishment option, then some international observers, including the ICC, are likely to determine that the peace agreement fails to meet international standards," the study states.

The organisation calls for the UN Security Council to overrule the ICC Prosecutor's mandate under Article 16.

"Under that provision, the Security Council may, through a Chapter VII resolution, request that the Prosecutor defer the prosecution for one year," it notes.

Alternatively, the ICC may have to recognise other forms of punishment, such as reparations, exile, public apologies, mandatory participation in a truth commission or traditional justice mechanisms, "as sufficiently meeting international standards of punishment in the Uganda context," the study says.

The argument, however, raises the question whether the proposed alternative penalties reflect the gravity of the crimes committed.

Ultimately, Refugees International's proposal risks leading to the kind of impunity the criminal court has been tasked to fight under the UN Rome Statute.