Recent reports indicate that the Allied Democratic Forces (ADF), an Islamist rebel group established by militant Ugandans with the intention of overthrowing the Ugandan government, is behind the killing of innocent civilians in the Beni territory of North Kivu Province in the Democratic Republic of Congo (DRC). The group is likely carrying out these atrocities in order to destabilize the DRC government and also draw international attention to their activities.
This is not the first time the ADF or a rebel force of Ugandan origin is alleged to have attacked innocent civilians in the DRC. There are continued reports of attacks by other groups, such as the Lord’s Resistance Army (LRA), in parts of the DRC. Like the ADF, the LRA is a rebel group composed of disgruntled Ugandans whose actions caused untold suffering to the people of Northern Uganda before extending its activities to South Sudan, DRC, and the Central African Republic (CAR).
The question of regional security arising from the continuous activities of “cross-border” rebel groups, like the ADF who commit atrocities in both Uganda and the DRC, was at the top of the agenda during the most recent diplomatic meeting between the Presidents of Uganda and DRC. However, beyond the usual political rhetoric on the need to bring an end to the atrocities routinely committed by these rebel groups, it is important for us to ask the difficult question of how and when these groups will be held accountable for the massive crimes they have committed in the DRC.
The arrest warrants issued by the International Criminal Court (ICC) against high ranking LRA commanders Joseph Kony, Vincent Otti, and Dominic Ongwen only cover crimes allegedly committed in Northern Uganda. Following the arrest of Ongwen in the CAR, there were expectations in some circles that the ICC Prosecutor’s request for additional time to investigate the case could result in charges being brought for crimes committed in other countries where the LRA operated. Victims in CAR, in particular, urged the ICC to try Ongwen for crimes committed in their country.
The UN Secretary General commended the decision to transfer Ongwen to the ICC as a “step forward in efforts to bring justice to the thousands of victims of LRA violence in Uganda, South Sudan, the Democratic Republic of the Congo and CAR over the past 28 years.” However, can we genuinely argue that victims outside Uganda have received justice when no charges are brought against the perpetrators specifically for the crimes that were committed against them?
With open ICC investigations in the DRC and CAR, Prosecutor Fatou Bensouda had the opportunity to extend Ongwen’s case to include charges concerning atrocities in the two countries, but she did not do so. Despite acknowledging that the LRA allegedly committed atrocities in places other than Uganda, the additional charges eventually brought against Ongwen did not cover grave crimes committed in the DRC or CAR. So far, no explanation has been offered for this decision. With little hope for prosecutions in domestic courts, the victims of these crimes in the two countries are now left with only one option – following the ICC proceedings against Ongwen for only the crimes he allegedly committed in Uganda.
Victims of ADF atrocities in the DRC face a similar dilemma. Following his arrest and extradition to Uganda, Jamil Mukulu, the alleged leader of the ADF rebel outfit, has only been charged with crimes committed on the territory of Uganda. According to Section 4 of Uganda’s Penal Code Act, Ugandan courts only have jurisdiction where crimes are committed in Uganda or in the case of treasonable offenses (which may be committed outside Uganda), they will have jurisdiction if the acts in question are committed by Ugandan citizens or persons ordinarily resident in Uganda.
On the other hand, the ICC Act of Uganda, which provides for the prosecution of atrocity crimes, such as crimes against humanity, war crimes, and genocide, could provide a window for Ugandan courts to bring justice to victims of ADF and LRA crimes in the DRC by charging its nationals for crimes committed outside Ugandan borders. Reliance could be placed on the fact that the ICC Act allows for persons to be charged for such crimes if committed within Uganda and elsewhere.
However, this has not happened to date. This may be attributed to the complexities that could arise if, for example, Ugandan prosecutors and investigators require evidence of atrocities committed on DRC territory. In addition, in the absence of an extradition agreement between Uganda and the DRC, despite earlier negotiations, it is difficult for suspected Ugandan perpetrators of such crimes to be transferred to their home country for prosecution purposes. Although several LRA Ugandan rebel leaders, including Thomas Kwoyelo, who is currently appearing before the International Crimes Division of Uganda, have been arrested on DRC territory, resulting charges have only covered crimes committed in Uganda. In the end, these limitations are a disservice to victims of “Ugandan” rebel groups operating in the DRC.
So far, the DRC national military courts that have until now exercised jurisdiction over serious crimes committed in the country have only tried crimes committed by Congolese nationals on DRC territory. This is despite reports showing that the DRC authorities have arrested a number of Ugandans linked to rebel activities. The result is an impunity gap that appears to benefit rebel groups such as the LRA and ADF whose crimes in Eastern DRC are well documented albeit with no resulting accountability proceedings.
One way of ensuring that such groups are held responsible for crimes committed on Congolese territory is by looking at accountability for atrocities from a regional rather than a national perspective. The African Union and Great Lakes regional organs should lead strategic interventions that integrate accountability for grave crimes committed by both state and non-state actors within their broader policy framework. This may necessitate amendments to the criminal laws of each country and also a resumption of discussions on an extradition treaty between Uganda and the DRC in order to allow for swift accountability proceedings against nationals of either country for grave crimes committed in their wide rebel territory. This would inevitably be an expensive process that may necessitate closer collaboration among the judicial, investigative, and prosecutorial authorities of each country.
In the past, there have been proposals to establish a hybrid tribunal for the DRC to allow for trials of perpetrators of international crimes. These discussions have been stalled because of reservations from some state officials that a model of this nature could allow for external interference, which may impact on the country’s sovereignty and independence. This mechanism, however, presents a good opportunity to deal with cross-border perpetrators of atrocities on Congolese territory.
Speaking to DRC experts on possible solutions to this dilemma, one can easily sense their disillusionment, particularly with regard to the approach that has been taken by the Congolese government and other international actors. Discussions of likely solutions appear to prioritize politically expedient approaches over accountability.
National and international courts, such as the ICC, need to recognize and address the regional complexities of conflicts in countries like the DRC. Deliberate efforts should be undertaken to bring justice to victims of serious crimes committed by cross-border rebel groups who remain outside the long arm of the law because of mere technicalities. If all accountability mechanisms avoid this challenge victims will not have recourse to justice and perpetrators will continue to commit crimes with impunity.