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Juba Agreements on Accountability and Reconciliation Raise
Questions
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a final peace agreement until the ICC warrants were withdrawn.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.
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