NKUMBA UNIVERSITY

SCHOOL OF LAW
INDEX NO:

2011/AUG/LLB/B9430.

COURSE:

LAW

COURSE UNIT: INTERNATIONAL CRIMINAL JUSTICE

LECTURER:

PROF. OKUMU FABIUS ALIYA

DATE OF SUBMISSION: 23/04/2015

QUESTION

With the use of relevant examples examine the view that it was pre-mature for
the Ugandan Government to refer the Lords Resistance Army Case to the ICC.

INTRODUCTION
The lords Resistance Army is a product of Ugandas bloody political history, its not
right to trace the LRA from 1986 but rather from Pre-Museveni Governments or post
independence Governments , the Obote 1 Government controlled this country from 1962
-1970 and was later over thrown by the Amin regime , the Obote ii government bounced
back to power in 1980 after the over throw of Idi Amin with the help of Tanzanian forces
and the Ugandan national liberation army(UNLA) which restored Obote ii. Between
1982 1985 Obote used the UNLA to attack pro NRA communities in Luweero triangle
which is well documented. Its believed that over 300,000 Ugandans were killed within that
period1
The fall of the UNLA gave birth to the rise of Uganda peoples democratic army (UPDA),
which were remains of the UNLA fighters that greatly fought against the NRA in the early
1986. As a result of superiority and modern fighting machinery the UPDA were defeated, and
other went to exile in South Sudan and a few remained. Its believed that in 1986 at the age
of 24 Joseph Kony joined the UPDA2 , due to intensity of the war the UPDA disintegrated
forming the Holy spirit movement(HSM) led by Konys cousin Alice Auma Lakewena a
self styled God the holy ghost (spirit) , who was later defeated in Busoga by the NRA,
Upon her defeat, her father Severiano Lukoya, a self proclaimed God the father picked
up that spiritual mantle to led the group, his rebel tenure was however short lived, unable to
rally his troops (army) he returned back to Gulu and set up a cult shrine, upon his
retirement Joseph kony another self proclaimed God the son step in to the bridge,
Kony emerged as the final member of Ugandas trinity of evil, he later recruited from the
UPDA to form the Lords salvation Army which changed name to the united Christian
army and finally obtained its current name in 1992 to be known as the Lords Resistance
army. The remainder of the demoralized UPDA were granted amnesty through negotiations
with their top commander LT Col Angelo okello. Kony told his men that he wanted to
govern Uganda through the Ten Commandments. He relatively had little support from the
population but due to strong military strength from the NRA the population soon lost

1 THE DEFENDANT MAGAZINE VOLUME 2 2006

2 UPDF/PPU/LIRA MEDIA CENTRE REPORT/DOCUMENTARY OF 2008 TITLED
SEEING THE LIGHT AT THE END OF THE TUNNEL

hope in kony and their support reduced3, this greatly hungered kony who turned against the
very people he claimed to be fighting for and committed many atrocities against them such
as murder ,rape ,torture, sex slavery, abduction of young boys and turning them in to perfect
killing machines, and many other inhuman treatment, That at one point the UN under
secretary general for Humanitarian Affairs Jan Egeland called the situation in
northern Uganda as one of the worst and most forgotten Humanitarian crisis in the
world. Its upon such Background that five of the top commanders of the LRA were indicted
before the ICC namely Joseph kony, Vincent otti, Dominic ongwen, okot odahimambo,
and Ruska Lukinya, and the arrest warrants against them was released on early 8th July
2005.
THE ICC
The international criminal court is an international court that came in to force in 2002
aimed at prosecuting perpetrators of war crimes and crimes against humanity, its a creature
of the Rome statute4 which was given birth to by the post world ii international tribunals
such as the Nuremberg trials, ,later the international tribunal for former yogosolvia and also
the international criminal tribunal for Rwanda in 1995.
After the domestication of the Rome statute 2005, Uganda created the war crimes division
which was meant to handle matters of the LRA but to date no such matter has been
handled by this war crimes tribunal instead the LRA question was referred to the ICC by
the Ugandan Government
Now a great number of researchers have argued and said that it was a premature move
by the government and a variety of explanations have been given for such reasoning
which include among many of the following while others

have argued that it was

the

right time and the right call by government to refer the LRA rebels as discussed below

1. Lack of protection to the local population in northern Uganda

3 UPDF/PPU/LIRA MEDIA CENTRE REPORT/DOCUMENTARY OF 2008 TITLED SEEING THE

LIGHT AT THE END OF THE TUNNEL

4 THE ROME STATUTE

Researchers and local leaders such as Acholi religious leaders peace initiatives and
Acholi parliamentary group have all stated that since 2002 , and 2003 when it was
rumoured that the government would refer the LRA to the ICC there was great risk to
the population whom the LRA saw as possible witnesses and according to Dooms &
Viasseroot5 researchers, they reported that the LRA abducted over 20,000-25,000
children but over 12,000 of these were abducted right after the Rumours reached the
rebels that government would refer them to the ICC. This was between 2002 and 2005
.this was also witnessed in the case of prosecutor Vs Thomas lubaga were it was reported
that he increased his attack on civilian population when the indictments were made against
him and he also interfered with witness for example its reported that he stole identities of
witnesses who were supposed to testify that they were Lubagas child soldiers but later
denied being child soldiers . Also in the recurrent case of prosecutor Vs uhuru Kenyatta it
was also seen that upon his indictment by the ICC witnesses were at risk and intimidated and
many withdrew their testimonies hence failure of the case. It was premature to refer the
rebels to the ICC without government putting in to place adequate security detail to
protect the population like the old saying goes an injured animal is twice as deadly than
as it was before. So government ought to have foreseen the risk to the community ,
according to Bishop Odama of the Acholi religious leaders peace initiatives said the
government had released a wild dog on the people of Acholi through these referrals.
however in a recent interview with daily monitor the army commander Gen Katumba
Wamala and the UPDF spokesman Lt Col Paddy Akunda told the paper that the
UPDF. Had

all the military might to protect the civilian and besides theses civilians

were already in protected villages commonly known as internally displaced peoples

camps IDPs so there was no way these referrals would be a risk to the civilian6
however the army is claim of protection draws a lot of questions as the Defendant
magazine of 2004 in one of its editions in an article titled life in the camp is a dogs
life said that only two soldiers were on duty when the rebels attacked pabbo camp
and burnt down the entire camp killing over one hundred twenty two people in a single
day . This surely pours dust on governments ability to protect the IDPs hence prove that it
was premature to refer the rebels to the ICC . Without enough security to the locals
5 Dooms & Viasseroot
6 DAILY MONITOR FEB 2014

Also the prematurity of the referrals was evidence by the rebels increased attacks on
humanitarian workers as reported by the BBC news of October 2005 in an article titled
NGO attacks condemned in Uganda7 in which it was reported that the LRA attacked
world food programme, red cross, and medicines and forties all relief organisation operating
in northern Uganda all these were done during the aftermath of the indictments so
government ought to have foreseen such attacks before the referrals

2. Referrals hindered the efforts of the amnesty Act and Amnesty Commission to
restore peace
According to the Acholi religious leaders peace initiatives(ARLPI) and the Acholi
parliamentary group8 the referrals were made in total disregard of the efforts put in place
by the Amnesty Act of 2000 which granted blanket amnesty to the rebels. According to
Justice Peter Onega Amnesty commissions chairperson prosecution was not good for the
culture of Amnesty and reconciliation that has been developed ever since the commission was
set up. He further believes that given the history of Uganda that has for long suffered
rebellion, killings, wars and tribal mistrusts, reconciliation was the best option at the
moment9. Bishop Odama Chairman of the Acholi Religious Leaders peace initiative
(ARLPI) also adds and says you cannot have one arm forgiving and the other arm punishing
the same group of rebels10. And the LRA on June 29th 2007 agreed to be subjected to
alternative justice measures other than the ICC11. Actually according to the amnesty
commission a total of 26,000 rebels have been granted amnesty and have been resettled
back to their communities by the end of 2004 notable among them is former LRA
7 BBC NEWS OCTOBER 2005
8 ACHOLI TIMES 3RD PUBLICATION OF 2006
9 DAILY MONITOR NEWSPAPER WORLD COURT SIGNS KONY ARREST WARRANT.BY
FRANK NYAKIRU 2005
10 DEFENDER MAGAZINE VOLUME 2 2006 AND REPORTED ON LEADERSHIP
MAGAZINE OF FEB 3RD 2007
11 SUDAN-UGANDA: JUNGLE BOOST FOR PEACE PROCESS NOVEMBER 17 2006
AVAILABLE http/www

spokesman Sam kolo, Onen Kamdul, Opio makafi, Opoka Ray , Col Acellam smart , Brg
Muzee Banya and many other all these rebels left the bush due to the benefits of the
Amnesty commission and they have been resettled to their communities through the mato
oput system. Its also wise to note that amnesty is an international mechanism to resolve
conflicts. so it was premature to refer the rebels in isolation of the great role played by the
amnesty commission and amnesty Act. However its important for one to note that the
Rome statute supersedes the Amnesty Act and the crimes for which the LRA
commanders are charged do not fall under the blanket protection arm of the amnesty
Act this was clearly expressed in the supreme courts recent pronouncement in the long
awaited judgement in the case of Uganda Vs Thomas kweyelo in which the attorney general
appealed against the early ruling of the constitutional court that the respondent was entitled
to amnesty under the Amnesty Act and that the Amnesty commission and the DPP had
erred in law by not granting him the Amnesty certificates .but the supreme court held that
amnesty was granted on individual basis and there was nothing like blanket amnesty
therefore there was no discrimination on the side of the DPP and the Amnesty commission in
refusing to award Thomas kweyelo the amnesty certificate. Its also wise to note that Much
as they can get amnesty but the Rome statute looks at the gravity of the offence of war
crimes and crimes against humanity to be beyond the Act and thereby justified under the
amnesty Act to prosecute the LRA meaning it was mature to refer them to the ICC.
3. Referral led to the failure of peace talks
The pre-maturity of the referral to the ICC has also been justified as its believed to
been behind the failure of the peace talks between government and the LRA in 2004/5
and also the 2006 peace talks in juba South Sudan12. Its said that since the government
had already referred the LRA to the ICC the peace talks of 2004/5 and 2006 became
illegal since the matter was already in court and government did not take the peace talks
seriously and this was evidenced by the governments launching of operations iron fist 1
and 2 led by Gen salim sahel even during the peace talks. This made the LRA to lose trust
in the talks hence fallout. the same was seen in the 2006 peace talks in which the LRA
demanded that the indictments against their top commanders be withdrawn before it signs
the final peace agreement and governments failure to yield to such demands led to the
collapse of the peace talks hence

operation lightening thunder so the fact the referral

12 ACHOLI RELIGOUS LEADERS PEACE INITIATIVES

hindered peace Talks in 2004/5 and 2006/8. This shows that it was surely pre-mature to
refer the LRA to the ICC. But it also remarkable to note that even the 1993-94 peace
talks failed regardless of the fact that such referrals were not made. By then the LRA
simply used this safe heaven process and cessation of hostilities to buy ropes , abduct ,kill,
regroup and negotiate arms with the Sudan government , so the argument that the
referrals failed the peace is unfounded since early peace talks failed even without
such referrals.
4,

The referral of the LRA was actually not premature based on the principle of

complementarily under international law which is under article 17 of the Rome statute,
under this principle the ICC is justified to complement or assist a state party to the Rome
statute in prosecution of her war criminals in case where a state calls for help form the
ICC13 or in case the country has failed to prosecute the criminal14 or its unwilling to do so
like it was the case with the Sudanese president Omar el Barshel and also in the case of
Prosecutor Vs Thomas lubaga were the Congo government referred the matter of Lubaga to
the ICC who was charged with war crimes and crimes against humanity including the use of
child soldiers . The ICC may also come in under the complementarily principle if it fears
or feels that the accused people are like not to get due process of justice , this was seen in the
Darfur were the American secretary for state John Kerry said that much as a special court
was set up in Sudan to try those who took part in the conflict in Darfur it has been reported
that secret trials are being conducted under this special court were sentences are past against
unrepresented defendants and confessions are obtained through torture, now for this
reason Kerry holds that ICC interventions were warranted in the Darfur case .So the ICC
was justified in coming in to the matter since Uganda did not have enough resources to
apprehend the rebels since they now operated in Uganda , south Sudan, Congo and central
African republic. But it should be noted that the complementary principle means the ICC is a
court of last resort, now the biggest question is t had Uganda exploited all other means to
bring the conflict to an end such as peace talks, penal laws, negotiations, traditional methods
such as mato oput, conciliation governments. Actually its on record that the people of
northern Uganda who were the major victims of the LRA prefer to stop this conflict in a
peaceful way they say since they are the major victims this conflict their request for mato
13 ARTICLE 17(1) OF THE ROME STATUTE 2002
14 ARTICLE 17(2) OF THE ROME STATUTE 2002

oput , reconciliation and lasting solution to the conflict should be respected15. so the inability
by government to exploit other means before running to the court of last resort show that the
referrals were premature
5, Also some researchers most prominently Dr sarah Nouwen say that the documents
used to refer the rebels to the ICC were generally pushed and a creature of the ministry of
defence as opposed to the solicitor general or attorney general who were constitutionally
mandated to handle legal issues on behalf of the government on this basis such researchers
claim government rushed to push the matter to the ICC in a show of hurry, bad faith as
opposed to justice. On that note the Uganda government is believed to have used its
military propaganda to n refer charges against the LRA to the ICC instead of tasking
the attorney general to thoroughly investigate the crimes committed by all parties taking
part in the conflict such as the LRA, UPDF, government officials, civilians, and NGOs
So the inability by the Ugandan government to offer the Attorney General time to carry
such investigations and its referrals on only one party to the ICC is a show of bad faith
birthed within the governments ill motive in peaceful resolutions to the two decade
conflict hence a clear sign that government was pre-mature in her referral before
investigations by Attorney General but rather basing her evidence on sources from the
ministry of defence which was itself a party to the conflict there is bias at play. A
monkey cant be judge in matters of the forest. actually governments lack interest and desire
to protect herself from prosecution for the crimes in northern Uganda is well expressed by
the provisions of article 70 clause 17 of the international criminal court Act which gives
all powers to consent to prosecutions upon the attorney general , for sure one does not need
rocket science to discover that the Attorney General will not, or can consent to prosecution
of government officials leave alone the president under the war crimes tribunal . But it also
remarkable to an extent to note that it was the army and ministry of defence who were in
the battle field preferably one could say they had the right to use information from the
ministry of defence . As seen article 14(2) of the Rome statute which provides that as far as
possible, a referral shall specify the relevant circumstances and be companied by such
supporting documentation as is available to the state referring the situation 16. This shows
15 THE INTERNATIONAL CRIMINAL COURT. AN OVER VEIW OF THE AFRICAN
STITUATION BY ANTHONY NJONOGE ( A NO PEACE WITHOUT JUSTICE REPORT)
16 ARTICAL 14 ROME STATUTE

that government was justified in using documents from ministry of defence as per the above
provision.
6

One can agree with Sarah Nouwen when she says that the documents used to refer

the LRA to the ICC were drafted by foreign international lawyers who completely
had no knowledge of the alternative justice mechanism in the region17 such as the Acholi
justice system of conflict resolution such as the mato oput which literally means forgiving
and reconciling this system has for many years worked in the Acholi tradition and a
similar system was used in Rwanda after the 1994 genocide where the Gahaha courts
and truth tellings were used and turned out to have restored peace and sanity in Rwanda so
one would be right to say that government s inability to explore such mechanism
but rather opt for referral of LRA to the ICC was surely a pre-mature move. However
lawyers and international law practitioners and organs such as the international committees
of the red cross will greatly disagree with the with the above assessment on the traditional
Acholi mato oput system on grounds of humanity and desire to protect the human race
, its notable to know that the atrocities committed by the rebels are war crimes, and
crimes against humanity provided for under article 7and 8 of the Rome statute respectively
and the main interest of the ICC is to protect the human race in punishing those who
commit crimes which are of grave violations to international convention in regards to rules
of war fare which no other means other than the international criminal justice system can
solve the matter as evidenced by the Nuremberg trials , the ICTY, ICTR, cases therefore
one is justified in saying the traditional mato oput system does not work in such grave
atrocities committed by the LRA hence justifying the referral to the ICC.
Also the failure by the ICC to investigate crimes and atrocities committed by the
government agents is a sign of such pre-maturity in handling the LRA question by the
government . actually many people especially DR. Sarah Nouwen have blamed the
ICC for this failure and says that actually the ICC prosecutor Mr Luis Moreen ocampo
took up and accepted the LRA case in exchange for referrals against Ugandas atrocities
in Congo ,so if such matters are to be found to be true in fact then this would surely
mean that the prematurity in the referrals of the LRA since it was just an exchange
mechanism. Museveni and Ocampo decided to sacrifices the LRA at the favour of the

17 complementary in the line of fire

UPDF, there has also been reports of the famous London hotel conference18 in which its
reported that ICC chief prosecutor Mr. Luis Ocampo Sat side by side with President
Museveni in 2003 to announce their corporation in the hunt for LRA , this showed
that ICC was surely not ready to prosecute the UPDF which meant that the referrals
were premature and the prosecutor of the ICC was one side minded, actually Amnesty
international requested investigations by the ICC should also include the governments
army as well and Richard Dicker Director of the international justice programme at
the human rights watch (HRW) also affirmed the sentiment by stating that the ICC
prosecutor cannot ignore the crimes that Uganda government troops allegedly
committed19but the biggest question one would then ask would be will the ICC receive
cooperation from government if it started investigating it . But to great a extent its
notable to state that the ICC has not completely refused to investigate crimes committed
by the government , actually in response to questions by Gulu district LC V chairman
Ojara Martin mapenduzi the ICC prosecutor fatuto Ben Suda said the ICC will for
now concentrate on investigating the LRA. And not the UPDF but could do so if need
arise. So this means that the ICC is still open to investigations against the UPDF and this is
a clear sign that the referral were mature and well founded.
7

Also the prematurity in the referral of the LRA can be seen in such a way that

government of Uganda did not put in consideration the best interest of the affected
population , according to the journal for international law and international relations20
research has shown that most victims in northern Uganda desired truth telling
commonly known as mato oput traditional system of conflict resolution and
reconciliations, others however desired reparation by the ICC and commemorations as a
method of recognising their suffering as opposed to prosecution by the ICC , many
whom the Acholi times a local press media talked to said these are our children, brothers,
and sister, mothers and fathers, aunties and uncles. What do you want us to do with them ,
they were taken away from us, forced to commit wrongs against us, its not that we are
happy for what they did, but should we throw them to the dogs and lions?, we can at best
18 complementary in the line of fire
19 ICC: INVESTIGATE ALL SIDES IN UGANDA ,A CHANCE FOR IMPARTIAL ICC
INVESTIGATIONS IN TO SERIOUS CRIMES 2006
20 Volume 2(2)

reconcile with them through mato oput not court, so this shows that it was for sure
premature

to refer the matter before government putting in to consideration the desire of

the affected community. But contrary to what the community desires , the mato oput
system comes with great weakness putting into consideration the magnitude of the of the
offences committed by these rebels especially the top five commanders, these are
grave violations of international conventions and amounts to international crimes such as
war crimes and crimes against humanity which is far beyond the mato oput. According
Nicolas opio a researcher of law he says mato oput would best work for murders
between clans as a means to avoid revenge but not these crimes committed by the LRA.

CONCLUSION.

In general context Uganda being a partner state to the Rome statute it was under obligation
to refer the LRA to the ICC especially under the complementarily principle and also since the
offences were grave but in doing so the government ought to know that the ICC is a court of
last resort which should only be referred to when all other mechanisms have completely
failed, methods such as those mentioned in the research above ought o first be exploited
before ICC comes at play since research shows that the ICC aims at justice at the expense of
peace yet the people in most of these war affected area prefer to have a rest from the conflict
through peaceful means. and its also remarkable to note there are situations were justice
and peace may not move along the same path so in my own option i feel there is no evil in
fronting peace first, keep the gun silent and later proceed to peruse justice , because insisting
on justice first will mean the rebels remain in the brush for fear of prosecution and continue
committing atrocities against un armed civilian population, yet if peaceful mechanisms such
as peace talks, reconciliation, truth telling, mato oput, amnesty, and reintegrations were
taken up then such mass killings, rape, defilement, cutting of ears and lips ,burning of

internally displaced peoples camps and cooking people in pots would have come to an end.
So honestly which is the greater evil and which was the quicker solution to solve the
problem of the civilian population in northern Uganda ,peaceful resolutions or referral to the
ICC and continued fighting .its on the above reasoning that i conclude and say that to a great
extent the referrals were premature.

REFERENCES

1. THE ROME STATUTE

2. CASE LAW.

3. THE DEFENDANT MAGAZINE. LIFE IN IDP CAMPS IS A DOGS LIFE

4. LEADERSHIP MAGAZINE. WORLD COURT SIGNS KONY ARREST

WARRANT 3RD EDITION VOL 2 2005

5. THE LIVING JOURAL VOLUME 2(2) 2006

6. JOURNAL FOR INTERNATIONAL LAW AND INTERNATIONAL RELATIONS.

7. DAILY MONITOR NEWSPAPER WORLD COURT SIGNS KONY

ARREST WARRANT.BY FRANK NYAKIRU 2005
8. DEFENDER MAGAZINE VOLUME 2 2006 AND REPORTED ON
LEADERSHIP MAGAZINE OF FEB 3RD 2007
9. BBC NEWS 2004. HUMANITRIAN ATTACKS IN UGANDA CONDERMED
10. THE DEFENDANT MAGAZINE VOLUME 2 2006
11. UPDF/PPU/LIRA MEDIA CENTRE REPORT/DOCUMENTARY OF 2008 TITLED
SEEING THE LIGHT AT THE END OF THE TUNNEL