Amnesty according to the Merriam Webster dictionary is, ‘the act of an authority (such as a government) by which pardon is granted to someone or a large group of individuals often before a trial or conviction.’ Article 8 of the Rome Statute of International Criminal Court defines War crimes as, ‘acts carried out during the conduct of a war that violates accepted international rules of war. These acts include but are not limited to; intentionally killing civilians, prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, war time sexual violence, the conspiration of children in the military, genocide or ethnic cleansing, etc.’ The greatest question that we should be asking ourselves today in regards the LRA combatants is, ‘Should rebels who turn themselves in, be allowed to escape justice for potential war crimes through Amnesty? Or must they be prosecuted even at the risk of discouraging reconciliation which is one of the main tenants of the principles of Amnesty. These were the main facts in contention in the case of Thomas Kwoyelo versus Uganda (Constitutional Petition 36 of 2011) [2011] UGCC10.
Thomas Kwoyelo was a commander in the rebel group called the Lord’s Resistance Army (LRA). He has been in prison since 2009 when he was captured by the Ugandan Peoples Defense forces. He is awaiting trial at the International Crimes Division (ICD) of the High Court in Uganda, which is specially designed to handle war crimes and crimes against humanity. He appeared before the International Crimes Division for plea taking, where his indictment was amended from 12 counts to 53 counts of War Crimes under Article 147 of the fourth Geneva Convention section 2(1)(d) and (e) of the Geneva Convention Act, Cap 363 (Laws of Uganda).
The Court observed that the rationale behind amnesty laws is to offer blanket immunity to criminals in this particular instance, the LRA rebel combatants who abandoned the group and renounced involvement in the war. The amnesty laws in Uganda also apply equally to other Ugandan nationals in other rebel groups, of which the Allied Democratic Forces is the most prominent. Court analyzed the issue of applicability of the amnesty laws in Uganda. Who is eligible and ineligible to be granted amnesty? Justice Peter Onaga held that there is need to grant discretion to judicial officials on who they can give amnesty, because judicial officers have no choice but to grant amnesty to anyone who applies for it. However, this must be carried out in pursuit of justice.
National amnesty laws are founded to shield perpetrators from prosecution for serious human rights violations and war crimes and to bring reconciliation between the perpetrators and the rest of the people in society. It is believed that some of the participants in these war crimes want a way out but are afraid of the harsh legal sanctions such as life imprisonment for their actions. Amnesty comes in as a motivation for some of these war combats to come clean and make amends for their acts without being severely punished by the Law. However, according to the state in the above case, recourse should be made on the type of offender to some of these offences. For example, in the present case, Thomas Kwoyelo was a commander in Chief of the LRA group, making him a principal offender. He was the face of the LRA, he influenced and coerced others to join the war and was the leader in carrying out the war crimes. This was the defense the state used to give amnesty to the other soldiers who were accessories before, during and after the war crimes that were committed by the LRA rebels in Uganda and Congo.
The Inter-American Court on Human Rights, has issued a number of rulings on the same issue, finding that states cannot neglect their duty to investigate, identify, and punish those persons responsible for war crimes, and crimes against humanity by enforcing amnesty laws or other similar domestic provisions. Blanket amnesties have the effect of protecting all individuals without regard to the nature of the crimes committed. Before shielding individuals suspected of committing serious human rights violations and war crimes using amnesty, investigations should be carried out by the state and those found guilty of committing these war crimes ought to be punished. Otherwise, these same criminals will use it as a defense to carry out war crimes, knowing that in the long run Amnesty laws will exonerate them. Amnesty will end up being a ‘sword’ and not a ‘shield’. This will also contravene the whole essence of Criminal Law, which is to stop crime in society through punishment/sanctions.
This principle is affirmed in the Juba Agreement that states that, ‘For formal Courts, once amnesty is provided for under the constitution, they shall exercise discretion over individuals who are alleged to bear particular responsibility for the most serious crimes especially crimes amounting to international crimes during the course of conflict.’
The accused Thomas Kwoyelo as a principal offender was denied amnesty and indicted for the alleged commission of international war crimes as provided under section 2(1)(d) and (e) of the Geneva Conventions Act Cap 363 (Laws of Uganda).
In conclusion therefore, before granting amnesty to perpetrators, regard should be given to the nature of violation or war crime, the type of offender the accused is. Regard should also be made to the fact that international laws complement the national laws. In case of conflict of legal principles in international laws and national laws, national laws will take precedence.
Written by;
Jochebed Nassimbwa And Imecu Rebecca Eriechu