The first domestic war crimes trial in Uganda
.. (ICD) International Crimes Division in Gulu (district), northern Uganda
.. a specialised domestic court system to try suspects accused of committing international crimes
.. (ICD’s history) International Crimes Division (ICD), a division of Uganda’s High Court set up in 2009 by the Ugandan government as part of its efforts to implement the 2008 Juba peace agreements between the Ugandan government and the LRA
.. (Juba Peace Talks) abuse of complementarity clause ; ICD blocked the reach of the ICC to the LRA leaders ; though Juba Peace Agreement was not concluded, move ahead with setting up of the ICD
.. (ICD’s jurisdiction) The division has the authority to try genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime defined in Uganda’s Penal Code Act, the 1964 Geneva Conventions Act, the 2010 International Criminal Court Act (ICCA), or any other criminal law.
.. (delay trend) one major challenge facing Ugandan justice system
Defendant
.. Thomas Kwoyelo, a former Lord Resistance Army (LRA) combatant
.. the rebel group (LRA) has been engaged in war for two decades
.. captured during the Uganda People's Defence Forces’s (UPDF’s) operation in March 2009
.. charged with grave breaches of the Geneva Conventions under the Ugandan Geneva Conventions Act
.. the first of the rebel group to be tried
.. amnesty was denied, (while other high ranking LRA commanders were)
.. his trial is selective ?
.. three preliminary objections (amnesty, access to prosecution file, GC Law)
Implication
.. Sudan’s involvement in terms of whether armed conflict of international character
.. if ICD turns out to be successful, will the ICC drop warrants it already issued ?
Question
.. complementarity under Rome Statute vs. domestic amnesty legislation ?
.. anyway, here, Kwoyelo is not sought by the ICC
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LRA’s Kwoyelo to be charged in Uganda’s first domestic War Crimes trial
JULY 8, 2011 BY HAGGAI MATSIKO
Former Lord Resistance Army (LRA) combatant, Thomas Kwoyelo will on July.11 appear before the Uganda International Crimes Division in Gulu, northern Uganda –in the country’s first domestic war crimes trial.
Kwoyelo, is the first of the rebel group – that has for two-decade been engaged in a war that was characterized by extensive violations of human rights especially in Northern Uganda – to be tried. And holding the trial in Gulu is intended to increase its visibility and resonance with the communities that were most affected by the crimes committed during the conflict, according to Human Rights Watch.
“Domestic war crimes prosecutions are essential to ensuring perpetrators of serious crimes committed during the conflict in northern Uganda do not escape justice,” said Elise Keppler, senior international justice counsel at Human Rights Watch. “But trials must be fair and credible, and witnesses need adequate protection. This first trial before the International Crimes Division will test whether these standards are being met.”
Kwoyelo , captured during UPDF’s operation lightening thunder on March 2009 as the army flushed out the LRA of the DRC forests, is charged with grave breaches of the Geneva Conventions under the Ugandan Geneva Conventions Act. He was initially charged in June 2009 with crimes under Uganda’s penal code before being transferred to the regular prison system.
In August 2010, he was charged with violations of Uganda’s 1964 Geneva Conventions Act, including the grave breaches of willful killing, taking hostages, and extensive destruction of property in the Amuru and Gulu districts of northern Uganda.
Since then, he was held for a time in Gulu Prison and was later transferred to Luzira prison, a maximum security facility near Kampala, where he has been for the rest of his detention.
Kwoyelo is the first person to be tried by Uganda’s new International Crimes Division (ICD), a division of Uganda’s High Court set up in 2009 by the Ugandan government as part of its efforts to implement the 2008 Juba peace agreements between the Ugandan government and the LRA.
The division has the authority to try genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime defined in Uganda’s Penal Code Act, the 1964 Geneva Conventions Act, the 2010 International Criminal Court Act (ICCA), or any other criminal law.
ICCA which defines crimes against humanity, war crimes, and genocide as domestic offenses in Uganda, does not contain any explicit provision stating that it can be applied to crimes committed before the law’s enactment in June 2010, and so according to Uganda’s Directorate of Public Prosecutions (DPP), it should not be. This would severely restrict its use to prosecute crimes committed during most of the conflict in northern Uganda.
According to the Amnesty Commission, Kwoyelo applied for amnesty but he was not granted. The commission referred the case to the Directorate of Public Prosecutions as required under the act when individuals are in custody. But the DPP has not responded to the Amnesty Commission’s request.
However, over 12,000 people including high ranking LRA commanders like Brigadier Kenneth Banya and Brigadier Sam Kolo Otto, as well as Lt Col. Opio Makasi, have all received amnesty under the act over the last several years.
Kwoyelo case: Apply international fair trial principles
By Sharon Nakandha , Monday, July 18 2011
Thomas Kwoyelo recently became the first suspect to appear before the newly-established International Crimes Division. We have to commend our country for initiating this critical step towards ensuring that Uganda has a specialised domestic court system in place to try suspects accused of committing international crimes.
As many of us may know, the major challenges facing our justice system today is the somewhat unnecessary delay in the courts in regard to concluding matters that come before them. I, like many others, acknowledge that this trial may raise very complex questions to determine, but the International Criminal Division should not follow this delay trend. For the accused person and the victims of the 20-year LRA conflict, who are keenly monitoring this case, inordinately long delays of the trial process may make justice lose its true meaning and value.
Our main focus should be on ensuring that whatever the verdict, the peace that the people of northern Uganda are now enjoying, is maintained and that our country never suffers a conflict of that nature and magnitude again.
Further, the International Criminal Division and other stakeholders in the justice system should explore avenues through which the victims of this conflict can be compensated for the pain and suffering they have undergone during and after the conflict.
The court should quickly establish its outreach section, which will update the victims of this conflict and the public at large, on the progress of the Kwoyelo case and others before it. This will allow people to understand the proceedings before the court and give them an opportunity to acknowledge that it has a role to play in ensuring accountability and justice for international crimes.
Ms Nakandha is a lawyer with Avocats Sans Frontieres-Uganda
snakandha@gmail.com
War crimes: Kwoyelo still has sympathizers
Written by Sunrise Reporters, Tuesday, 19 July 2011
After two years since he was captured by the Uganda People's Defence Forces (UPDF) Kwoyelo appeared before a panel of four judges and was charged with 53 counts of murder, hostage-taking, destruction of property and causing injury. He denied all charges.
Kwoyelo's trial is the first of its kind since the International Criminal Court in the Hague (ICC) indicted his rebel colleagues Joseph Kony, Vincent Otti, Okot Odhiambo and Raska Lukwiya.
Principal Judge Justice Yorokamu Bamwiine said Ugandans and the international community have a feeling that justice must be done and it is there to be done. The trial is being presided over by Justices Akiiki Kiiza, Elizabeth Ibanda Nahamya and Alfonse Owiny Dolo - all judges of the War Crimes Division of Uganda's High Court, renamed International Crimes Division.
Gulu district chairman Martin Ojara Mapenduzi, said the trial is an eye opener for the LRA commanders still in hiding as well as some senior figures in the government that they cannot commit crimes with impunity and get away with it.
Two of the five LRA commanders indicted by ICC remain at large and are believed to be leading an on-going rebel assaults in parts of the Democratic Republic of the Congo, South Sudan's Western Equatorial State and in the Central African Republic.
However, others like Lino Owor Ogora, the Team Leader Research Advocacy and Documentation at the Justice and Reconciliation Project in Gulu, Kwoyelo's trial is selective.
"I think the war crimes division really wanted to have a case on the ground because we are failing to understand why and how they arrived at Kwoyelo," he said.
Update on the trial of Thomas Kwoyelo, former LRA combatant
JULY 12, 2011
Human Rights Watch attended the opening of the trial of Thomas Kwoyelo
The ICD sat as a panel of three, presided over by Justice Dan Akiiki-Kiiza. The prosecution opened proceedings by seeking to enter an amended indictment. The new indictment extends the counts against Kwoyelo from 12 charges of grave breaches under the fourth Geneva Convention (incorporated in domestic law as the Ugandan Geneva Conventions Act of 1964) to 65 charges in all. It added 53 alternative counts of penal code violations such as murder, kidnapping, and aggravated robbery. The charges were translated into Luo, Kwoyelo's mother tongue, and read to him, and he pled not guilty to all counts.
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. The objections have not been formally lodged and accepted by the court but will be before the court to deliberate on when it resumes on July 25.
Immediately before the trial opened, the ICD held a public information session led by the registrar of the High Court, the judges from the ICD, and the principal judge. Questions posed by the public, which reflected both a wide interest in and general understanding of the significance of the trial, included issues relating to victim and witness protection, victim participation, application of the Geneva Conventions Act, prosecution of gender-based crimes, and Uganda's Amnesty Act. Plans to make the proceedings available on a screen outside the courthouse to enable the large number of interested people to follow the trial are being discussed and should be in place by the time the second hearing takes place.
Kwoyelo’s Mum (Mother) Begs Gov’t To Pardon Her Son
July 22, 2011 ; By Ronald Odongo, lira.
Rujulina Oyeka, 75, a resident of Acutcam village, Pabbo Sub County, Amuru district said her son should be forgiven for all the alleged crimes which he reportedly committed while serving as the LRA operations commander. “He was also abducted by the rebels at the age of 15 on his way from Ogwera Primary School. His bosses instructed him to do whatever he did while in the bush. … “
While in the bush, Kwoyelo used to look after casualties until around 1996 when he was promoted to the rank of Lieutenant Colonel and made a commander, according to Ogil (John Ogil 32, Kwoyelo’s brother). Kwoyelo who was captured in December 2009 by the joint forces during operation lightning thunder in Garamba national park in the DRC, on Monday denied all the charges against him at the War Crimes Division of the Gulu High Court. His lawyer, Caleb Alaka asked court to compel the state to grant Kwoyelo amnesty which he applied for in 2010.
Uganda’s Controversial First War Crimes Trial: Thomas Kwoyelo
July 12, 2011 by Mark Kersten
The International Crimes Division of Uganda’s High Court was set up in the wake of the Juba Peace Talks (2006-2008), the latest attempt to resolve the seemingly intractable conflict between the Lord’s Resistance Army and the Government of Uganda. In the context of widespread fears that LRA leader Joseph Kony would not sign the peace agreement unless the ICC arrest warrant against him was dropped, the International Crimes Division was viewed as an institution which could circumvent the need to bring LRA leaders to the ICC. In the end, however, Kony refused to sign the final Juba Peace Agreement. Nevertheless, the Government of Uganda moved forward and established the Division. Kwoyelo, who was captured in 2009, is the Division’s first defendant.
The biggest controversy at the trial has to do with whether or not Kwoyelo should receive amnesty. In 2000, the Government of Uganda passed the Amnesty Act which was intended to provide protection from prosecution as an incentive to LRA combatants who defected. The record of the Amnesty Act remains uncertain – some say it has been effective in getting LRA combatants to defect; others disagree. It has been a rather confused process. Those “most responsible” for atrocities in the LRA, including Joseph Kony, have been offered full amnesty by the government only to have it revoked and then offered again.
Selective ?
Kwoyelo’s defense counsel argue that he should be granted amnesty. Kwoyelo has appliedto Uganda’s Amnesty Commission and many believe there is no legal reason to bar him from receiving amnesty which does not stipulate that anyone should be excluded. In other words, it is a blanket amnesty. However, to date, he has not received a verdict and his application is “pending”. Further complicating matters is that other LRA members with higher seniority in the rebel group have successfully received amnesty. Caleb Alaka, Kwoyelo’s chief Defense Lawyer argued:
“High officers in the LRA…were granted amnesty. Since the brigadiers were granted amnesty, the denial by the directorate of public prosecutions…infringes on [Kwoyelo's] constitutional rights to fair treatment.”
In other words, by trying Kwoyelo while amnestying others, Kwoyelo’s defense raises the specter that this constitutes a violation of the constitutional guarantee of equality before the law.
Some will say this argument is irrelevant because amnesty laws for international crimes run contrary to the international duty and obligation to prosecute. That is not so clear, particularly in this case. Kwoyelo is not one of the LRA commanders sought by the ICC. Further, despite the high rhetoric of human rights groups, as numerous legal scholars have pointed out, the international duty to prosecute may be crystalizing but has not yet crystalized. Amnesties continue to be used as much, if not more frequently, in negotiated peace settlements and, to quote the renowned legal academic Michael Scharf on this issue:
“a ‘rule’ that is so divorced from the realities of State practice…cannot be said to be a binding rule at all, but rather an aspiration.”
To date, the international community has not vehemently demanded that other captured LRA leaders like Brigadiers Sam Kolo and Kenneth Banya, who have received amnesty, must be prosecuted. It is unclear why Kwoyelo should be treated substantially differently than either Kolo or Banya. More specifically, if Kwoyelo’s case is unlike others and the Government feels he must be prosecuted, the reasons for denying him amnesty and thus necessitating his prosecution must be made clear to him and his defense. Indeed, you would think this should happen before his trial.
There are numerous other interesting dynamics to consider during this trial that both international lawyers and conflict resolution observers should be keen to keep an eye on. For lack of time, I will briefly consider two.
First, Kwoyelo’s charges are based on violations of Uganda’s 1964 Geneva Conventions Act. The Act requires that the violations be done in the context of an international conflict, understood here as a conflict between two or more states. In order to demonstrate that Kwoyelo’s acts occurred in the context of an international conflict, rather than a civil war, the prosecution may have to provide evidence that external actors were directly involved in the war. In order to do so, the prosecution would presumably have to illustrate that the government of Sudan was a party in the conflict. While it is clear by now that Khartoum used the LRA as a proxy group against Southern Sudan’s SPLM/A, the Government of Uganda has never produced direct evidence of it.
Second, the trial – if conducted fairly and legitimately – will certainly set a key precedence for international criminal justice as it relates to Uganda. In 2008, the ICC rejected an admissibility case to have the Court’s warrants against Kony and other senior LRA members dropped. While one trial may not be sufficient, if the International Crimes Division can successfully try LRA combatants, attempts to challenge the ICC’s warrants may receive new life.
Note: an earlier version of this post incorrectly stated that Kwoyelo has twice applied for amnesty. He has only applied once.
Uganda opens first war crimes trial ; July 22, 2011
Overview of the civil war in Uganda
The insurgency and the fighting between the rebels and Ugandan forces claimed the lives of tens of thousands of people and saw nearly two million displaced.
The civil war effectively ended in 2006 when a peace process was launched, but Kony and his top commanders have remained elusive and continued to commit atrocities in remote areas of neighbouring countries. (Kony at large)
Troops from Congo, Uganda and Sudan began a joint offensive in late 2008 against the LRA after Kony repeatedly failed to show up to sign a peace deal with Kampala, but they have failed to capture him.
Uganda:Thomas Kwoyelo tried for crimes against humanity , July 22,
In 1993, the United Nations Security Council adopted a report from the Secretary-General and a Commission of Experts which concluded that the Geneva Conventions had passed into the body of customary international law, thus making them binding on non-signatories to the Conventions, like the LRA, whenever they engage in armed conflicts.
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