Juba Agreements on Accountability and Reconciliation Raise
Published: 1 May 2008
Refugee Rights News
Volume 4, Issue 3
May 2008
The question of justice and accountability has been a critical question in the ongoing peace talks between the Lord’s Resistance Army (LRA) and the Government of Uganda (GoU). On February 19, 2008, the LRA and the GoU made an important step forward in negotiating these issues with the signing of the Annex (the Annex) to the June 29, 2007 Agreement on Accountability and Reconciliation (the Principal Agreement). The Annex elaborates how perpetrators should be held accountable for crimes committed during the conflict.
The Principal Agreement provides that the forum for a particular case – either a formal court or traditional justice – depends upon the severity of the crime. The Annex expands upon this, providing that a special division of the High Court of Uganda will try individuals, “alleged to have committed serious crimes during the conflict,” with prosecutions focusing on those “alleged to have planned or carried out widespread, systematic, or serious attacks directed against civilians, or who are alleged to have committed grave breaches of the Geneva Conventions,” while lesser crimes will be addressed using traditional justice mechanisms.
The Principal Agreement and the Annex pave the way for admissibility and other jurisdictional challenges in respect of the Uganda cases before the International Criminal Court (ICC), which cannot pursue cases prosecuted genuinely at the national level. In light of this, in early April the LRA refused to sign a final peace agreement until the ICC warrants were withdrawn. The GoU responded that it would not take any steps in that direction until a final peace agreement was signed. This impasse is a major factor in the current stall of the Juba process.
The discussion that follows considers the possible challenges to ICC jurisdiction flowing from the Juba framework for domestic prosecutions and highlights priority areas for civil society monitoring if that framework is implemented.
ICC jurisdiction
The ICC’s Rome Statute allows states to investigate and prosecute persons for whom ICC warrants are outstanding. Indeed, the domestic prosecutions contemplated by the Principal Agreement and the Annex could curtail ICC jurisdiction in a number of ways. First, ICC judges could deem the Uganda cases inadmissible by operation of the principle of complementarity, which limits ICC jurisdiction to cases national courts are “unable or unwilling” to prosecute. An admissibility challenge could be mounted by the GoU, by any accused or by the ICC itself. Second, the UN Security Council could make a Chapter VII resolution requesting that the ICC defer investigations or prosecutions for an initial period of 12 months in order to allow domestic justice to move forward. Third, the principle of double jeopardy would place any individual prosecuted in a fair domestic trial outside of the ICC’s reach. Finally, the ICC prosecutor could argue to its judges that prosecutions are no longer in the “interests of justice” if he deems that the Juba framework provides a more viable forum for pursuing justice.
Practically speaking, ICC jurisdiction could be hampered if the GoU refuses to cooperate with the ICC. Since the indictees are likely hiding out in the Central African Republic, the Democratic Republic of Congo or Southern Sudan, their cooperation may also be required and may be refused for a number of political reasons.
The Principal Agreement provides that the GoU will “address conscientiously the question of the ICC arrest warrants relating to the leaders of the LRA” and “undertake any necessary representations or legal proceedings nationally or internationally” to implement the Agreement’s provisions. Although the Annex is silent regarding the ICC warrants, the Principal Agreement suggests that the GoU might mount an admissibility challenge in order to allow the domestic mechanisms provided for therein to move forward.
Whether or not the ICC trials go ahead, if the Juba process is concluded such that the Principal Agreement and the Annex are implemented, there will an ongoing need for civil society monitoring. Although the Annex does not lay out the substantive law and procedure for national trials, simply noting that it should be “expeditiously prepared” by the GoU, it is possible to highlight areas of particular concern for civil society. Because the Rome Statute represents an international consensus on various issues relating to war crimes and crimes against humanity, it, along with other international standards, could serve as useful benchmarks against which to assess domestic trials.
Fair trial standards
In assessing whether national trials conducted in accordance with the Juba agreements might render the Uganda cases inadmissible before the ICC, one element of considerable discussion has been the extent to which fair trial standards are respected. Research by Human Rights Watch has indicated that international fair trial standards and practice are adhered to inconsistently in Uganda. However, the “inability” prong of an admissibility determination considers whether there is a total or substantial collapse or unavailability of the national judicial system, not the extent to which international fair trial standards are respected. Thus when using the Rome Statue as a bar, the Ugandan judicial system need not be in complete conformity with international judicial standards. Uganda is, however, obligated through other international commitments such as the International Covenant on Civil and Political Rights and by the Ugandan constitution to ensure that the trials contemplated by the Principal Agreement and the Annex meet basic standards of judicial independence and procedural fairness. Civil society may play an important role in ensuring that those commitments are respected.
Definition of crimes and punishment
Uganda has not domesticated the Rome Statute and therefore international crimes such as crimes against humanity and war crimes, two of the principle atrocities occurring in the north, do not exist in Ugandan criminal law. A particularly important issue is therefore how the law to be applied in the High Court—the law that the Annex states is being “expeditiously prepared”—will define such crimes and whether the available punishments will be proportional.
The language of the Principal Agreement and the Annex suggest that crimes will be defined and punished in accordance with international standards: i) a recital appearing in the Principal Agreement and the Annex “recalls” the parties’ “commitment to preventing impunity and promoting redress in accordance with the Constitution and international obligations” and “recalls…the requirements of the Rome Statute,” ii) the Annex references the fact that prosecutions in the High Court shall focus on individuals “alleged to have committed grave breaches of the Geneva Conventions” and iii) the Principal Agreement mentions the fact that individuals alleged to bear responsibility for “crimes amounting to international crimes” shall be tried in formal courts. It is worth noting, however, that in the context of “formal justice processes” Article 6.3 of the Principal Agreement provides, “legislation shall introduce a regime of alternative penalties and sanctions which shall 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 will be important to scrutinize these alternative penalties in order to ensure that they are proportionate to the crimes committed.
Prosecutorial strategy
The Annex provides that those who “planned or carried out widespread, systematic or serious attacks directed against civilians or who are alleged to have committed grave breaches of the Geneva Conventions” will be investigated and prosecuted, while the ICC’s mandate is to prosecute those “most responsible.” The Annex certainly captures those “most responsible” so the High Court could prosecute those indicted by the ICC, and the Annex gives Uganda even wider jurisdiction to hold lesser criminals to account in both formal trials and through traditional justice. Nevertheless, it will be important to monitor who is prosecuted domestically as there is a danger that politics could interfere with bringing all of those “most responsible” to justice. This danger will be attenuated if ICC trials do not proceed.
Traditional justice
The role of traditional justice has been a controversial aspect of the struggle against impunity in northern Uganda. On the one hand, critics such as academic Tim Allen, highlight the ways in which traditional justice has been inconsistently applied and manipulated to serve certain stakeholders’ interests. On the other hand, proponents such as the Refugee Law Project argue that forgiveness-based traditional justice such as that contemplated in the Annex is more meaningful to victims than retributive international justice. By trying serious criminals in the High Court while subjecting others to traditional justice, it seems that the Principal Agreement and its Annex seek to forge a balance. As the architecture of this balance is implemented, it will be important to monitor whether victims feel that the process is fair and holds perpetrators, both those tried in the High Court and those meted traditional justice, accountable in a meaningful way.
Conclusion
The Principal Agreement and its Annex raise important questions about the extent to which the elaboration of mechanisms for accountability at the national level may lead to jurisdictional challenges in respect of the Uganda cases before the ICC and the extent to which international standards may be met in national level prosecutions. Civil society can play an important role in the latter regard. In particular, civil society should pay attention to judicial independence and procedural fairness, the definition of crimes and the proportionality of punishment, who is prosecuted and the balance between formal proceedings and traditional justice.
For more information, see:
- Dolan, Chris, “Whatever happened to true justice?” Daily Monitor, June 7, 2007.
- A Human Rights Watch Memorandum, “Benchmarks for Assessing Possible National Alternatives to International Criminal Court Cases Against LRA Leaders,” May 2007.
- For more information on this research and regarding the Principal Agreement generally, see Human Rights Watch’s “Analysis of the Annex to the June 29 Agreement on Accountability and Reconciliation – Human Rights Watch’s Fourth Memorandum on Justice Issues and the Juba Talks,” February 2008.