Amnesty or accountability: the fate of high-ranking child soldiers in Uganda's Lord's Resistance Army.

• Author: Yarbrough, Stella

Abstract

In May 2013, Uganda surprisingly resurrected its amnesty provision for two more years (2) after having let it lapse only a year earlier, (3) Uganda's vacillation likely represents its competing desires to grant amnesty to low-level actors in the Lord's Resistance Army (LRA) and to end impunity for decades of gross human rights violations in accordance with international criminal law. However, instead of crafting an amnesty provision that would satisfy both of these needs, Uganda reinstated the same "blanket" amnesty, or all-inclusive pardon, found in the Amnesty Act of Uganda (2000) (Act). (4) As a result, high-level LRA actors like Thomas Kwoyelo and Caesar Acellam find themselves in a legal purgatory of indefinite detention: too culpable in the eyes of Ugandan officials to release, but too difficult to prosecute as they are entitled to amnesty under the terms of the Act. (5)

This Note proposes a factor-based amnesty process, which would allow Ugandan officials to determine the level of culpability of each applicant and grant or deny amnesty accordingly. This case-by-case method is likely the most effective way of ensuring that a balance is struck between the aspirations of the people of a war-torn country for peace and the increasingly rigorous demands for justice in international criminal law.

"Abducted children are trained to be used as weapons. They are like guns. So when you capture a child soldier--how can you hold them accountable? Why would you punish the gun and not the hand that holds if'? (1)

TABLE OF CONTENTS I. INTRODUCTION II. A COMPLICATED HISTORY: THE LRA, THE ACT, AND THE ICC REFERRALS A. 1986-2000: The Beginnings of the LRA and Child Abductions B. 2000-2008: Navigating Between Amnesty and Prosecution in Negotiating a Cease to Hostilities C. 2008-2013: Wavering Between Amnesty and Prosecution III. AMNESTY IN THE "AGE OF ACCOUNTABILITY" A. Domestic Amnesties Under the Rome Statute B. The Duty to Prosecute Under International Treaty Law 1. The Geneva Conventions 2. The Genocide Convention 3. CAT 4. African Charter on Human and Peoples' Rights C. Amnesty and the Duty to Prosecute Under Customary International Law D. The Duty to Prosecute in International Jurisprudence E. Peace and Justice: The Legacy of South Africa's Amnesty IV. PROPOSAL FOR A NEW AMNESTY ACT IN UGANDA V. CONCLUSION: APPLYING THE PROPOSED AMNESTY PROVISION TO KWOYELO AND BEYOND I. INTRODUCTION

In November 2012, I gathered with a handful of former child soldiers under the shade of an impressive acacia tree in Gulu, Uganda. (6) We listened as a representative of the Amnesty Commission (Commission), the Ugandan agency responsible for pardoning those involved in armed rebellion against the government, gave an informal presentation on the amnesty process. (7) The recently returned combatants were especially eager to know their legal fate; as only months before their return, the government of Uganda had repealed the portions of the Amnesty Act of Uganda (2000) (Act) that gave the Commission the authority to grant amnesty. (8)

The Commission officer intimated that the returnees would likely be pardoned--a kind untruth as amnesty was legally unfeasible at the time. A man whose lips had been partially shorn off during his years of captivity listened with particular gravity. (9) After the presentation, he explained to the Commission officer that he had planned to take his life the next day if he could not secure a governmental pardon; the presentation, however, had given him enough hope to refrain. (10)

A few months later, the Ugandan government's reinstatement of the Act changed the Commission officer's untruth into reality. The Gulu returnees, as well as any other low-level applicants that have since defected from the Lord's Resistance Army (LRA), can be granted amnesty until May 2015 when the Act is set to expire again. However, not all former child soldiers will be pardoned. (11)

Unlike the returnees in Gulu, Caesar Acellam Otto and Thomas Kwoyelo remain in indefinite detention. (12) These men were also abducted by the LRA at young ages; they were also compelled to commit atrocities at the threat of losing their lives. (13) Moreover, in 2011, the Ugandan Constitutional Court ruled that Kwoyelo, a high-ranking former child soldier who was captured in action in the Democratic Republic of Congo (DRC), was entitled to amnesty under the blanket provision contained in the Act. (14) Despite this ruling and its affirmation by the Ugandan Court of Appeal, (15) Kwoyelo has been unofficially held in a Kampala prison for 5 years. (16) Caesar Acellam has been held without charges for 2 years. (17)

While Uganda's reinstatement of its amnesty provision benefits low-level actors like the Gulu returnees, it will not benefit high-level actors such as Acellam and Kwoyelo. (18) Given Uganda's competing interests in ending the decades-long violence and meeting the demands of international criminal law, (19) the disparate treatment of high- and low-level actors would not only be acceptable but advisable. This disparate treatment, however, is not enabled by the amnesty provision that Uganda has extended. Indeed, by not implementing a system for discerning which actors are entitled to amnesty, high-level LRA actors likely are doomed to indefinite detention, and Uganda, as well as other central African nations, remains unprepared to process high-level rebel actors in the event they are seized or surrender.

This Note proposes that the government of Uganda enact a new amnesty provision in May 2015 when the current Act expires. Part II of this Note provides a historical sketch of the origins and activities of the LRA and the government's attempts to reach a peaceful resolution after decades of violence. Part III locates the role of domestic amnesties in the greater context of international customary and treaty law in the "age of accountability," (20) arguing for a continued presence of amnesty provisions in transitional justice schemes despite the international trend toward ending impunity. Part IV proposes an amnesty provision that satisfies the need to pardon low-level actors while enabling the Commission to withhold amnesty on a discretionary basis. Lastly, Part V looks forward to the potential application of the proposed provision to the challenging case of Kwoyelo--the first high-ranking member of the LRA to be tried domestically in Uganda. This Part further postulates the extended application of the proposed amnesty to other central African nations that find themselves faced with an onslaught of LRA activity in their territory.

2. A COMPLICATED HISTORY: THE LRA, THE ACT, AND THE ICC REFERRALS

   In the two decades since the beginning of the LRA, the government of Uganda has applied several legal, political, and martial tactics in an attempt to bring peace to a country whose history had been plagued by violence. (21) None of these tactics, however, has been as successful in terms of ending hostilities and removing combatants from the field as a nationwide amnesty.

   1. 1986-2000: The Beginnings of the LRA and Child Abductions

      The LRA is a nonstate militia rooted in a wave of spiritual, political movements that swept through Northern Uganda in the 1980s. (22) Since its inception, the LRA has had an amorphous political agenda. At times the militia called for government rule based on the Ten Commandments; other times it simply demanded the end of Yoweri Museveni's tenure as president of Uganda. (23) The LRA's founder, Joseph Kony, claims to be possessed by spirits that dictate his actions. (24) He is known for his unspeakably brutal tactics, making him almost as notorious as his movement. (25)

      Although the LRA began as one of many resistance movements in the 1980s, (26) it proved to be the most difficult to disarm. (27) Because Museveni's national army, the Uganda People's Defense Force (UPDF), ravaged the Gulu, Pitgum, and Pader districts of Northern Uganda in its attempts to quash the LRA, support for the LRA in these areas initially grew. (28) The LRA also received financial support from the Sudanese government in the early 1990s. (29) Meanwhile, the Ugandan government funded the South Sudanese rebel group, the Sudanese People's Liberation Army, breeding political instability in Southern Sudan and creating a convenient site for a rebel militia. (30)

      In 1999, however, the two governments entered into the Nairobi Peace Agreement wherein they promised to cease providing aid to rebel armies in their respective territories. (31) Following this agreement, Uganda and Sudan also entered into a joint military operation, termed Operation Iron Fist, which aimed to remove LRA operatives from Southern Sudan. (32) Instead of disabling the militia as planned, however, Operation Iron Fist merely drove the LRA back into Northern Uganda. (33) At this time, the LRA began supplementing its numbers by the now infamous process of child abduction. (34)

      Once abducted by the LRA, children are subjected to galvanizing experiences such as being compelled to kill or maim their own family members or other children. (35) The LRA uses the ensuing fear of reprisal as a tool to dissuade the children from returning home. (36) The abductees then go through an intense period of integration and homogenization, during which they are trained to wage war and forced to participate in frequent killings. (37) Those that survive integration are assigned to a variety of positions within the army, including carrying supplies, participating in armed hostilities, or, for girls, watching over other children, or becoming sexual consorts for Kony's favored commanders. (38)

   2. 2000-2008: Navigating Between Amnesty and Prosecution in Negotiating a Cease to Hostilities

      From 1986 to 2006, it is estimated that 54,000 to 75,000 people were abducted by the LRA. (39) The majority of those who have returned from abduction since 2006 have been under 30 years old. (40) While a greater number of...