Introductory background to the Amnesty Act

According to Kaufman (2005:63), in general, amnesty refers to a formal or informal agreement between the ruling authority and those who for some reason are rebelling against this authority, by exempting the latter from facing any kind of prosecution and punishment from the former. Although the practical implementation of it differs between different contexts, the granting of amnesties to war criminals is however not a new phenomenon. While amnesty in the past was based on religious foundations with a focus on mercy and forgiveness, more modern forms of amnesty are in comparison based on a political strategy rather than religious commitments (du Plessis, 2005:193-195; Oomen and Marchand, 2007:170; van Zyl, 2005).

As described in the previous chapter, after the failed 1994 peace talks and the 1996 incident, the Acholis in Northern Uganda began mobilising at the grassroots level in search of a peaceful resolution to the conflict through a comprehensive amnesty. What began as a local initiative pushing for amnesty following the renewed attacks in Northern Uganda after the failed 1994 peace talks, resulted in the establishment of the ARLPI in 1998 (Allen, 2006:78). Although this initiative by the ARLPI did not result in any direct negotiations, it was decisive in the process of lobbying for the Amnesty Act, which is described more thoroughly below in

117 the following section (Allen, 2006:78). Finally, after years of persistent activism by Acholi religious and traditional leaders in the ARLPI, as well as other NGOs, and despite Museveni’s declared preference for a military solution to the ‘LRA problem’, the Amnesty Act was passed by the Ugandan Parliament in December 1999, and was enacted by the government in 2000 (Allen, 2006:74; Hovil and Lomo, 2005; Oomen and Marchand, 2007:170-171).

Even if President Museveni after referring the situation in Northern Uganda to the ICC, initially promised Moreno-Ocampo that the Amnesty Act of 2000 would be amended to exclude the LRA’s top leadership, this never happened (Allen, 2006:82; Oomen and Marchand, 2007:172). The 2007 agreement between the warring factions could instead have lead to amnesties on a large scale, as it allowed for amendments to be made on the Amnesty Act in the other direction (Oomen and Marchand, 2007:172).

But although this question concerning amnesties was brought back again during the latest rounds of peace negotiations from 2006 onwards, and formalised as one of the main provisions to deal with the issue of justice in the 2007 agreement, the LRA commanders had made it clear since 1994 that they would settle for amnesty if they could trust President Museveni in securing their personal safety. Amnesty procedures were therefore almost from the very beginning of the conflict one of the local remedies offered to the LRA, long before the ICC became involved in the process (Oomen and Marchand, 2007:170).

4.3.1.1 The Amnesty Act

In the Act amnesty is defined as ‘a pardon, forgiveness, exemption or discharge from criminal prosecution or any other form of punishment by the State’. The Amnesty Act provides an offer of amnesty for any Ugandan citizens, including the members of the LRA, who have engaged in armed rebellion and committed crimes against the State since January 26th 1986, which is the day that the current administration under President Museveni took office (Allen, 2006:74; Hovil and Lomo, 2005:6-7; Oomen and Marchand, 2007:170).

The Amnesty Act gives former combatants an amnesty package which consists of money, basic utilities and advice on housing and employment possibilities. In addition to this, the amnesty regulation seeks to offer the high-ranking LRA combatants the opportunity of living an ordinary life that is no worse than the one they lived in the bush. But except from promising not to return to the bush and start fighting again, the rebels do not have to give

118 truthful confessions of the crimes they have committed in return (Hovil and Lomo, 2005:7-8; Pham et al quoted in Oomen and Marchand, 2007:171-172).

All persons seeking amnesty must report to designated individuals to hand in their weapons, but also renounce and abandon all involvement in the war or armed rebellion (Oomen and Marchand, 2007:170). In return for doing so, these persons are granted an Amnesty certificate protecting them from prosecution and punishment, as well as providing them with DDR assistance. In practical terms, with regards to the situation in Northern Uganda, by claiming amnesty from the Ugandan state this means that the Amnesty Act allows former LRA combatants not only to avoid national state prosecution, but also ICC prosecution (Allen, 2006; Hovil and Lomo, 2005:7-8; Oomen and Marchand, 2007:171).

The Amnesty Act illustrates how, after many years of unsuccessfully trying to use the military option as a stick to hit the LRA and defeat it, the GoU moved away from it by instead using amnesties as a carrot to offer the rebels a more peaceful return from the bush (Hovil and Lomo, 2005; Oomen and Marchand, 2007:172). The Acholis themselves initially expressed enthusiastic support for the prospects of peace that came along with the introduction of the Amnesty Act, as it promised amnesty to all rebels in Uganda who surrendered. This initial and cautious optimism was, however, soon torn apart by Museveni’s lack of enthusiasm, which is illustrated by the military offensive ‘Iron Fist’ in 2002, described in the previous chapter, and later with the involvement of the ICC being analysed in the following subsection (Allen, 2006:74; Dunn, 2007:136; Hovil and Lomo, 2005; Oomen and Marchand, 2007).

4.3.1.2 The ICC undermining the Amnesty Act

As previously mentioned, at the press conference in London on January 29th 2004, the ICC’s Chief Prosecutor Moreno-Ocampo and President Museveni went public with the Court’s decision to start investigating the situation in Northern Uganda after the latter’s referral of the conflict in December 2003. This was followed up with the Court’s announcement that it would proceed with formal investigations in July 2004, and finally the arrest warrants against the LRA leadership in October 2005 (Allen, 2006; Oomen and Marchand, 2007; RLP, 2004). The ICC arrest warrants are thereby aimed at bringing justice to the Acholis for the atrocities being committed against them by the LRA through targeting its leadership as most responsible in this regard. However, a combination of an extremely bad timing for when it

119 issued the indictments and a rather inappropriate one-way communication in this case was perceived as hampering the efforts being made by the local civil society organisations working on the ground in Northern Uganda to support the peaceful return and reintegration of former rebel combatants under the auspices of the Amnesty Act (Hovil and Lomo, 2005; Ruaudel and Timpson, 2005:12). The main reason for this hostility was that the Amnesty Act up until that stage had been the only transitional justice mechanism providing the rebels with an incentive to leave the LRA, and the intervention by the ICC was clearly perceived by some, if not most of these NGOs as undermining their only viable exit strategy in this situation. The Amnesty Act has often been described as being in line with Acholis tradition about forgiveness and reconciliation and the amnesty process has received wide support, especially in Northern Uganda (Allen, 2006:82; Hovil and Lomo, 2005; Ruaudel and Timpson, 2005:12).

Being the first and thereby also the landmark case of the ICC, it is important for the Court to establish itself as a international legal force to be reckoned with by overcoming the expectations of total failure by its sceptics, and it apparently decided to brush aside these local worries from the very beginning (Nielsen, 2008). These were seemingly confirmed as the LRA in late 2005 increased its attacks in the North and started targeting relief organisations, resulting in that some of them were forced to put their operations on halt (Allen, 2006:189- 191; Dunn, 2007). Questions have therefore been raised about whether Moreno-Ocampo has taken the political context into consideration at all when deciding to undertake investigations. Concern about a lack of such a consideration has also been raised about the timing by starting investigations while the conflict is still raging, and how the ICC communicates with the public through its announcements could result in the LRA targeting the civilian population (Hovil and Lomo, 2005; Ruadel and Timpson, 2005).

In relation to this political context and also being at the core of the ‘peace vs. justice’ debate, the ICC investigations in Northern Uganda highlights two very different perceptions of justice. Whereas the ICC by deriving its jurisdiction from the Rome Statute of 1998, it is the institutional cornerstone and embodiment of the international criminal justice fight against impunity primarily through punishment and accountability (du Plessis, 2005; Hovil and Lomo, 2005; Oomen and Marchand, 2007:166-170; van Zyl, 2005). In Northern Uganda many people are, on the contrary, operating with a totally different mindset concerning what restorative and retributive justice implies, as evidenced by the findings in many of the studies

120 and surveys undertaken by local NGOs (Oomen and Marchand, 2007:175-177). This is illustrated by the RLP’s (2004:8) statement concerning the ICC’s involvement:

According to the majority of the people who support the Amnesty Law, criminal justice—in this sense, punishing the LRA leaders for the crimes they have committed- must lead to an end of the conflict. Seen from their perspective, criminal justice is a process of confessions, forgiveness, cleansing, reconciliation, responsibility, restoration, rehabilitation, stability, and continuity. Unlike the adversarial nature of existing national and international concepts of criminal justice, the sense of justice described here is consensual and restorative with the primary aim of re- establishing social cohesion and ending communal violence.

But beyond contradicting the local history, traditions and perspectives, there seems to be a genuine fear, if not outright hostility, as to whether the investigations by the ICC is a genuine conflict resolution method at all, evidenced by the fact that five years down the line it has clearly failed in bringing about an end to the conflict. On the contrary, by merely aiming at arresting and prosecuting the five worst and most wanted perpetrators the ICC only deals with the direct symptoms of the conflict rather than the needs of the wider society by addressing its deeper root causes (Hovil and Quinn, 2005; Ruaudel and Timpson, 2005). If one is to believe the subsequent reactions expressed by the local NGOs on behalf of the population in Northern Uganda, the ICC has demonstrated a complete incompatibility as a transitional justice mechanism that is able to bring about a sustainable peace.

Among those who underline the local Amnesty Act instead of ICC prosecutions are the two RLP researchers Hovil and Lomo (2005). Through their research they found that although the impact the Act could have had is being undermined both by the GoU’s lack of support by emphasising the military option through Operation Iron Fist, and the challenge by the ICC intervention, it seems to be a widespread support for amnesty among the victims of this violent conflict (Hovil and Lomo, 2005). Based on these findings they draw the following conclusion (Hovil and Lomo, 2005:24):

It is extraordinary that, after 19 years of civil war, many of those who have suffered most are willing to allow Kony to be granted amnesty if he voluntary leaves the bush. This is not an indication of their support for him, or of empathy for what he is doing, but reveals the fact that they are willing to allow him to be granted amnesty if it means an end to the war. In other

121 words, the desire for long-term stability outweighs the demands of modern justice as articulated in international law. This clearly raises huge questions with regard to issues of impunity.