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Adequate Penalties Needed Along With Trials
Crucial to Justice and Peace Are Penalties Reflecting Gravity of Serious Crimes

9 July 2007
Human Rights Watch - http://www.hrw.org/


Provisions for trials in the June 29 agreement between Uganda and the Lord’s Resistance Army (LRA) are welcome, but any national trials for the most serious crimes should include penalties in the event of convictions that reflect the gravity of the crimes, Human Rights Watch said today. Punishments that are fair and fit the crime are critical for ensuring justice and peace in northern Uganda.

Since July 2006, peace talks between the Ugandan government and the LRA have been taking place in Juba, the regional capital of southern Sudan, seeking to end the two-decade conflict in northern Uganda. On June 29, the parties signed an agreement in Juba on accountability and reconciliation, a critical item on the peace talks’ agenda. There is now a one month recess for consultation and establishment of annexes to implement this agreement.

In 2005, the International Criminal Court (ICC), based in The Hague, issued arrest warrants for LRA leaders for crimes against humanity and war crimes. Ugandan government forces have also been responsible for human rights violations that should be prosecuted. The June 29 agreement provides that “formal courts” in Uganda will exercise jurisdiction over individuals who allegedly “bear particular responsibility” for the most serious crimes. The ICC favors national trials where possible. Such trials, however, should meet the following substantial benchmarks: credible, independent, and impartial prosecution; adherence to international fair trial standards; and penalties that are appropriate and reflect the gravity of the crime.

The latest Juba agreement recognizes that trials are needed for the most serious crimes committed in northern Uganda, and this is welcome,” said Richard Dicker, International Justice Program director at Human Rights Watch. “But the agreement leaves open the question of penalties if there are convictions. Penalties should reflect the gravity of the crimes, with imprisonment as the principal penalty.”

The agreement provides that “a regime of alternative penalties and sanctions” will be introduced for “non-state actors” and will “replace existing penalties.” The Ugandan penal code includes lengthy prison terms, along with the death penalty, for some serious offenses. The death penalty should not be allowed. It is not permitted at international criminal tribunals, and Human Rights Watch opposes the death penalty in all circumstances as a cruel and inhuman punishment.

If national courts handed down a slap-on-the-wrist sentence in the event of convictions for the most serious crimes, it would simply not pass muster,” said Dicker. “Such trials would be tainted even if they were otherwise fair and credible.”

The ICC’s arrest warrants for four LRA leaders on war crimes and crimes against humanity are a chance to ensure justice for some of the most serious crimes committed in northern Uganda and to show would-be perpetrators that no one is above the law, thereby helping to promote a peace that is durable. If the benchmarks for national alternatives detailed above cannot be met, the ICC would remain the appropriate forum to try the LRA leaders for whom the ICC has issued arrest warrants. Notably, imprisonment is the principal penalty of the ICC and of other international criminal tribunals which deal with genocide, war crimes, and crimes against humanity.

Under the ICC’s Rome Statute, the ICC judges decide whether a trial in domestic courts is an adequate alternative. Moreover, its provisions also suggest that if a national alternative does not meet the Rome Statute’s requirements, it can be brought back to the ICC for trial.

It’s for the ICC judges to decide whether a national trial provides an adequate alternative, including by taking into account the penalties provided,” said Dicker. “Moreover, a case can be returned to the ICC if it does not meet benchmarks for national prosecutions.

As for national trials, the accountability and reconciliation agreement also does not address full incorporation of international crimes and theories of criminal responsibility into domestic law. These are necessary for charges to reflect the gravity of the most serious crimes and culpability where a defendant is not accused of directly committing crimes, which is often the case when leaders are tried.

The agreement also recognizes the need for an overarching framework on justice that includes formal criminal jurisdiction and complementary alternative justice mechanisms. Broader accountability measures are important components to rebuilding conflict-affected societies, Human Rights Watch said.

Background

The conflict in northern Uganda began in 1986 and has been characterized by serious crimes under international law and by other human rights abuses by the LRA and, to a lesser extent, by government forces. The LRA has been responsible for numerous willful killings, beatings, large-scale abductions, forced recruitment of adults and children, rape against girls whom it assigns as “wives” or sex slaves to commanders, and large-scale looting and destruction of civilian property. Abuses by government forces have included extrajudicial executions, rape, torture and cruel, inhuman and degrading treatment, arbitrary detention, and forced displacement.

In December 2003, Ugandan President Yoweri Museveni invited the ICC to investigate the LRA. In July 2005, the court issued warrants for the arrest of the top five LRA leaders – Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen. Lukwiya was killed in 2006.





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