Amnesty is a case of International law
Nov 30, 2008
THE Juba peace process brought to the fore the old debate on restorative justice against retributive justice as a means of remedying the injustices caused to the people of Northern Uganda during the 21-year-old armed conflict between the UPDF and the Lord’s resistance Army (LRA) rebels.
By Vincent Babalanda
THE Juba peace process brought to the fore the old debate on restorative justice against retributive justice as a means of remedying the injustices caused to the people of Northern Uganda during the 21-year-old armed conflict between the UPDF and the Lord’s resistance Army (LRA) rebels.
While the former emphasises amnesty and reconciliation, the latter focuses on punishment for the perpetrators. But to what extent is amnesty legitimately available to the suspects if it is established that they committed grave international crimes?
Implicit in the question of amnesty for these crimes are political and legal considerations. However, amnesty for perpetrators of international crimes is essentially a legal issue.
International Law
Granted, international law does recognise a measure of amnesty as an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal conflict. But in its current state, international criminal law seems to unequivocally frown upon blanket amnesty for perpetrators of serious offences such as genocide, crimes against humanity and war crimes.
The Government in a bid to end the LRA enacted an Amnesty Act in 2000. The Act purported to grant blanket amnesty for ‘all Ugandans who engaged in a war of armed rebellion against the government since 26th January 1986’.
The Act received severe criticism from several human rights organisations, both local and international which called for its repeal.
Due to international pressure to bring to justice the perpetrators of the northern Uganda atrocities, President Museveni disregarded the Amnesty Act.
He then referred the situation to the International Criminal Court (ICC). Two years later, the ICC unsealed warrants of arrest for the LRA leaders.
In apparent attempts to undercut the ICC investigations, the Uganda government and the LRA subsequently signed two agreements. They were the Comprehensive Solutions to the Northern Uganda Conflict and Reconciliation and Accountability.
The objective of the two pacts was to induce the withdrawal of the ICC warrants against Kony and his senior commanders — Vincent Otti, Okoth Odhiambo, and Dominic Ongwen. Despite the agreements, the ICC is actively pursuing the suspects’ arrests.
The Government argued that amnesty and the withdrawal of the ICC indictments would provide the necessary incentive for the cessation of hostilities by the LRA.
The ICC will not drop charges against LRA unless the Government shows its ability to bring the LRA to justice in a credible criminal justice system where blanket amnesty is not an option.
In Sierra Leone, the 11 year civil war pitting the government and the Revolutionary United Front, cost an estimated 200,000 lives as well as maiming and displacing tens of thousands of others.
In 1999, Sierra Leone and the rebels signed the Lome Peace Accord, which purported to extend blanket amnesty to people who may have been involved in the atrocities. However, during the signing of the accord, the special representative of the UN secretary general for Sierra Leone was under instructions to append his signature on behalf of the UN with the disclaimer that the amnesty provision would not apply to international offences of genocide.
Crimes against humanity, war crimes and other serious violations of international humanitarian law. Indeed, when the Special Court was established, its statute expressly outlawed any amnesty in respect of crimes.
The Sierra Leone case is peculiar also in the sense that the Special Court operated concurrently with the Country’s Truth and Reconciliation Commission. On some occasions though, the two appeared to operate at cross-purposes.
The South African truth and reconciliation process remains one of the most successful models in modern transitional societies. Established under the 1995 Promotion of National Unity and Reconciliation Act as a constitutional compromise to avert continued bloodshed, the commission offered amnesty to people who candidly and publicly confessed their political crimes.
They included people who had committed international offences such as crimes against humanity, one of which was apartheid itself under the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
The South African Truth and Reconciliation Commission was however, without controversy. In the countdown to its establishment, many South Africans called for Nuremburg-style trials of white officials who were seeking amnesty before agreeing to relinquish power.
The commission’s emphasis on amnesty as opposed to retributive justice caused resentment to many South Africans, including Steve Biko’s family.
The family petitioned the country’s constitutional court, arguing that the amnesty provisions violated the right to legal redress and were a breach of South Africa’s international law obligations.
Although the Constitutional Court dismissed the petitioners’ claim, they did not fully address the legality of the amnesty causes under international law.
Given the position of the international criminal law on this subject, the South African amnesty clauses would not be a barrier to future international prosecutions of apartheid atrocities.
Indeed, among many black South Africans, there is lingering resentment over blanket amnesty for their oppressors, some of whom continue to deny the atrocities they committed.
Sooner rather than later, the Ugandan government ill have to make a decision how to move forward in light of refusal of the LRA to sign the Juba peace agreement.
Whichever way Uganda decides to go, one thing is clear — international law does not permit blanket amnesty for perpetrators of crimes against humanity and related atrocities.
The writer is a Ugandan lawyer based in Nairobi, Kenya and working for an International NGO
THE Juba peace process brought to the fore the old debate on restorative justice against retributive justice as a means of remedying the injustices caused to the people of Northern Uganda during the 21-year-old armed conflict between the UPDF and the Lord’s resistance Army (LRA) rebels.
While the former emphasises amnesty and reconciliation, the latter focuses on punishment for the perpetrators. But to what extent is amnesty legitimately available to the suspects if it is established that they committed grave international crimes?
Implicit in the question of amnesty for these crimes are political and legal considerations. However, amnesty for perpetrators of international crimes is essentially a legal issue.
International Law
Granted, international law does recognise a measure of amnesty as an accepted legal concept and a gesture of peace and reconciliation at the end of a civil war or an internal conflict. But in its current state, international criminal law seems to unequivocally frown upon blanket amnesty for perpetrators of serious offences such as genocide, crimes against humanity and war crimes.
The Government in a bid to end the LRA enacted an Amnesty Act in 2000. The Act purported to grant blanket amnesty for ‘all Ugandans who engaged in a war of armed rebellion against the government since 26th January 1986’.
The Act received severe criticism from several human rights organisations, both local and international which called for its repeal.
Due to international pressure to bring to justice the perpetrators of the northern Uganda atrocities, President Museveni disregarded the Amnesty Act.
He then referred the situation to the International Criminal Court (ICC). Two years later, the ICC unsealed warrants of arrest for the LRA leaders.
In apparent attempts to undercut the ICC investigations, the Uganda government and the LRA subsequently signed two agreements. They were the Comprehensive Solutions to the Northern Uganda Conflict and Reconciliation and Accountability.
The objective of the two pacts was to induce the withdrawal of the ICC warrants against Kony and his senior commanders — Vincent Otti, Okoth Odhiambo, and Dominic Ongwen. Despite the agreements, the ICC is actively pursuing the suspects’ arrests.
The Government argued that amnesty and the withdrawal of the ICC indictments would provide the necessary incentive for the cessation of hostilities by the LRA.
The ICC will not drop charges against LRA unless the Government shows its ability to bring the LRA to justice in a credible criminal justice system where blanket amnesty is not an option.
In Sierra Leone, the 11 year civil war pitting the government and the Revolutionary United Front, cost an estimated 200,000 lives as well as maiming and displacing tens of thousands of others.
In 1999, Sierra Leone and the rebels signed the Lome Peace Accord, which purported to extend blanket amnesty to people who may have been involved in the atrocities. However, during the signing of the accord, the special representative of the UN secretary general for Sierra Leone was under instructions to append his signature on behalf of the UN with the disclaimer that the amnesty provision would not apply to international offences of genocide.
Crimes against humanity, war crimes and other serious violations of international humanitarian law. Indeed, when the Special Court was established, its statute expressly outlawed any amnesty in respect of crimes.
The Sierra Leone case is peculiar also in the sense that the Special Court operated concurrently with the Country’s Truth and Reconciliation Commission. On some occasions though, the two appeared to operate at cross-purposes.
The South African truth and reconciliation process remains one of the most successful models in modern transitional societies. Established under the 1995 Promotion of National Unity and Reconciliation Act as a constitutional compromise to avert continued bloodshed, the commission offered amnesty to people who candidly and publicly confessed their political crimes.
They included people who had committed international offences such as crimes against humanity, one of which was apartheid itself under the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid.
The South African Truth and Reconciliation Commission was however, without controversy. In the countdown to its establishment, many South Africans called for Nuremburg-style trials of white officials who were seeking amnesty before agreeing to relinquish power.
The commission’s emphasis on amnesty as opposed to retributive justice caused resentment to many South Africans, including Steve Biko’s family.
The family petitioned the country’s constitutional court, arguing that the amnesty provisions violated the right to legal redress and were a breach of South Africa’s international law obligations.
Although the Constitutional Court dismissed the petitioners’ claim, they did not fully address the legality of the amnesty causes under international law.
Given the position of the international criminal law on this subject, the South African amnesty clauses would not be a barrier to future international prosecutions of apartheid atrocities.
Indeed, among many black South Africans, there is lingering resentment over blanket amnesty for their oppressors, some of whom continue to deny the atrocities they committed.
Sooner rather than later, the Ugandan government ill have to make a decision how to move forward in light of refusal of the LRA to sign the Juba peace agreement.
Whichever way Uganda decides to go, one thing is clear — international law does not permit blanket amnesty for perpetrators of crimes against humanity and related atrocities.
The writer is a Ugandan lawyer based in Nairobi, Kenya and working for an International NGO