Conflicting Impulses: The Debate on Amnesties in the Case of Uganda’s Thomas Kwoyelo and Beyond

by Mark Kersten

This past summer, Uganda did something it had never done before: it put a rebel from the notorious Lord’s Resistance Army (LRA) on trial for international crimes. The trial of Thomas Kwoyelo marked yet another fascinating twist in Uganda’s experience of confronting past atrocities. The government’s Directorate of Public Prosecutions alleged that Kwoyelo was guilty of 12 charges of grave breaches of the fourth Geneva Convention and 53 counts of violating Uganda’s penal code. Last week, however, judges deemed prosecuting Kwoyelo unconstitutional and ordered him to be set free.

The primary obstacle to trying any former rebels in Uganda is the state’s Amnesty Law (2000) which was passed with the backing of powerful local northern Ugandan leaders. It effectively guarantees that any individual who either escaped or was captured and subsequently renounced rebellion can be granted reprieve from any prosecution. The trial of Kwoyelo raised, once again, unresolved issues about the use of amnesty laws in societies emerging from violent political conflicts characterized by widespread atrocities.

During three months of research, I had the opportunity to attend much of Kwoyelo’s trial and speak to many of those involved and affected by his case. From its inception, there was always something peculiar and uncomfortably political about the proceedings. The case opened, quite literally, to the tune of a marching band.

While rather clumsy in their approach – much to the chagrin of the presiding judges – Kwoyelo’s defense team argued that prosecuting their client was unconstitutional. Because other former combatants, including some who were senior to Kwoyelo, had been granted amnesty, trying Kwoyelo constituted an infringement of his right to fair treatment and equality before the law. Not being able to decide on the constitutionality of the case, the ICD referred it to the Constitutional Court, which agreed with the defense and ordered Kwoyelo to be granted an amnesty and be released:

“We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find.

We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith.”

The importance of the Kwoyelo trial, both legally and politically, is rather obvious. Had Uganda successfully tried and convicted Kwoyelo (and they still might), it would have given the government a plank upon which to build a complementarity challenge to the ICC’s jurisdiction, something the government had expressed interest in doing. However, the spectre of a successful trial also instigated fears in northern Uganda. Former senior rebel commanders explained their uneasiness of potentially becoming the Government’s next targets for trial if Kwoyelo was denied amnesty. The instability incurred by revoking thousands of amnesties would be absolutely devastating to a region and people eager to move forward.

Of course, the granting of an amnesty and the defeat of the government’s case against Kwoyelo is equally as controversial. International human rights groups sent representatives to monitor the trial and provide assistance to government lawyers. Predictably, Human Rights Watch argued that amnesties “for crimes such as war crimes and crimes against humanity run counter to international law and practice.” In the wake of the Kwoyelo verdict, Amnesty International released a statement which declared that:

“What we are witnessing here is simply pervasive impunity for serious crimes and human rights violations…Neither Thomas Kwoyelo, nor others accused of committing war crimes should be granted amnesty.”

Human rights groups and fervent human rights advocates and scholars have been engaging in what amounts to talking amnesties out of reality. They claim not only that it is morally and legally wrong to grant amnesties but ominously warn that doing so is to risk ever becoming a functioning, liberal democracy.

However, that granting amnesties for crimes such as those allegedly committed by Kwoyelo “run contrary to international law and practice” is not obvious. To borrow from the decision in an Appeal’s Chamber ruling at the Special Court for Sierra Leone: a duty to prosecute international crimes and a prohibition on the use of amnesties may be crystallizing, but has not yet crystalized.

Numerous researchers have illustrated that the use of amnesties for serious international crimes has actually increased in frequency. States clearly see no contradiction between granting amnesties and their international obligations. So frequent is the use of amnesties that Michael Scharf once quipped:

“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.”

Ellen Lutz, an opponent of the use of amnesties, concedes:

“it is one thing to argue that a direction is the one in which the law both ought to and is moving, and another to assert that an international legal norm has been solidly established.”

It is worth noting that, while some argue that the ICC marks a fundamental challenge to the use of amnesties in such contexts, the Rome Statute remains silent on the subject. While the question of amnesty was raised in Rome Statute negotiations, it was left, in the words of Darryl Robinson, “to the faithful and familiar friend of diplomats, ambiguity” as well as the discretion of the Court’s Prosecutor.

Complicating matters is emerging empirical evidence that amnesties can make a positive contribution to democratization and respect for human rights. The most fervent human rights advocates would like us to believe that only trial-based accountability can create the ripe conditions for a state to transition from violence and atrocity to respect for rights and the rule of law. However, as demonstrated by Tricia Olsen et al and Louise Mallinder, the uncomfortable truth may be that the use of amnesties, when combined with trials, is likely to have positive effects on democracy and human rights. Mallinder and Mark Freeman have both written extensively on the issue of amnesties and their work suggests that given their possible utility and positive contribution, amnesties should not be thrown out with the bathwater.

None of this is to say that amnesties are “good” or “bad” or that even that it would have been better for Kwoyelo’s trial to have proceeded. On the contrary, any monolithic claims regarding the use of amnesties are guaranteed to be unhelpful and potentially harmful. This post is intended to highlight the contested nature of amnesty laws for international crimes. As Freeman writes, it remains “[p]remature to assert that an amnesty is no longer worth the paper it is written on”. In the cozy New York offices of the UN and leading human rights groups, it may be easy to say that amnesties are always wrong and should never be granted. But on the ground, it isn’t so obvious. Interestingly, it isn’t so obvious in the courtroom either.

http://opiniojuris.org/2011/09/27/conflicting-impulses-the-debate-on-amnesties-in-the-case-of-ugandas-thomas-kwoyelo-and-beyond/

4 Responses

  1. As to the legal claim that amnisties are permissible, there is no need to assess the existence of a practice and opinio juris of states since the prohibition directly flows from the interpretation of clearly established obligations of human rights law.

    In the Barrios Altos case (Barrios altos v. Peru), judgment of 14 March 2001 (Merits), the IACHR made the following interpretation of the American Convention on Human Rights:

    “41. This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non- derogable rights recognized by international human rights law.
    42. The Court, in accordance with the arguments put forward by the Commission and not contested by the State, considers that the amnesty laws adopted by Peru prevented the victims’ next of kin and the surviving victims in this case from being heard by a judge, as established in Article 8(1) of the Convention; they violated the right to judicial protection embodied in Article 25 of the Convention; they prevented the investigation, capture, prosecution and conviction of those responsible for the events that occurred in Barrios Altos, thus failing to comply with Article 1(1) of the Convention, and they obstructed clarification of the facts of this case.  Finally, the adoption of self-amnesty laws that are incompatible with the Convention meant that Peru failed to comply with the obligation to adapt internal legislation that is embodied in Article 2 of the Convention.
    43. The Court considers that it should be emphasized that, in the light of the general obligations established in Articles 1(1) and 2 of the American Convention, the States Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse, in the terms of Articles 8 and 25 of the Convention.  Consequently, States Parties to the Convention which adopt laws that have the opposite effect, such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention. Self- amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the  aims and spirit of the Convention.  This type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation.
    44. Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have  occurred in Peru, where the rights established in the American Convention have been violated.”

    The reasoning of the IACHR can be applied to the ICCPR or the ECHR whose provisions do not differ on this respect (See also the General Comment number 20 of the UN Human Rights Committee, par. 15: “The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.”; This has been reaffirmed in General Comment number 31, par. 18).

    This state of the law does not leave room for any “policy argument” (no matter whether acurate or not) as to the opportunity of granting amnesty for grave human rights violations.

  2. Dear Etienne,

    Many thanks for your thoughtful response. I agree that there is a growing jurisprudence and recognition within many international courts that amnesties run contrary to a states’ duty to prosecute and investigate serious crimes as well as the victim’s right to justice and truth. That being said, this is not reflected in state practice. Dozens of states, including democratic states like Spain and emerging democracies like South Africa, have retained amnesties for grave human rights violations. In my humble view, the Barrios Altos case illustrates more the direction in which many nations and courts are moving but is not a reflection of the current practice of states emerging from violent political conflict.

    While I did not have the space to consider these issues more broadly, it remains important to consider that some types of amnesties may be useful and appropriate. Conditional amnesties with democratic legitimacy and which are linked to reparations (I am borrowing from Louise Mallinder here) may contribute greatly to peace and reconciliation.

  3. Well, apart from the question of amnesty, an obvious problem with the charges is reliance on the grave breaches regimes of the Geneva Conventions which is only applicable in international armed conflicts…

  4. Dear Tamás,
    Many thanks for your comment. You are absolutely correct. Kwoyelo’s defense counsel raised this issue in the early stages of the trial but the issue was largely marginalized in the proceedings as the question of the trial’s constitutionality took center-stage. It would have been fascinating had the prosecution been required to produce evidence that the conflict was an IAC and thus that Kwoyelo was subject to prosecution under the Geneva Conventions. The government would almost certainly have had to provide evidence of Khartoum’s and South Sudan’s involvement in the war, which is known to many but has rarely – if ever – been officially acknowledged.

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