On August 13, 2024, the International Crimes Division (ICD) of the High Court of Uganda delivered its long-awaited verdict in the case of Uganda versus Thomas Kwoyelo, a former commander and colonel in the rebel group the Lord’s Resistance Army. Mr. Kwoyelo was convicted on 44 counts of crimes against humanity, war crimes, and other serious crimes—including murder, rape, enslavement, torture, unlawful imprisonment, and pillaging—committed during the decades-long armed conflict in Northern Uganda between the LRA and the Ugandan government. This judgment, which Kwoyelo may still appeal, represents a significant milestone in the pursuit of justice and accountability and a crucial step toward acknowledging the suffering of the victims of these horrific mass atrocities. It also concludes a complex and protracted judicial process that spanned 13 years.
Kwoyelo was initially indicted on 93 counts; however, in December 2023, the court acquitted Kwoyelo of 14 charges and directed him to defend himself against the remaining 78 charges. In its judgment, the trial panel dismissed and acquitted Kwoyelo of 34 counts and convicted him of 44 counts, which include 10 counts of sexual and gender-based crimes.
Uganda People’s Defence Forces captured Kwoyelo in the Garamba National Park in the Democratic Republic of Congo in 2009. His trial was meant to commence in July 2011; however, the proceedings stalled when Kwoyelo petitioned the Constitutional Court, arguing that he was eligible for amnesty and that his prosecution violated his constitutional right to equal treatment. The Constitutional Court ruled in his favor and ordered the ICD to halt the trial. In 2015, following a successful appeal by the Attorney General, the Supreme Court overturned this decision, allowing the trial to resume.
Pretrial proceedings commenced in 2016 and lasted nearly two years, during which the court addressed various preliminary motions related to jurisdiction, applicable laws, witness protection, disclosure of evidence, and other procedural matters. Given that the crimes Kwoyelo was alleged to have committed predated the enactment of the International Criminal Court (ICC) Act in 2010, the Director of Public Prosecutions (DPP) could not charge him under the ICC Act without infringing on the principle of legality. Under Article 28(7) of Uganda’s 1995 Constitution, no one can be charged or convicted for actions that did not constitute a criminal offense when they occurred. Additionally, a person can only be convicted if the law clearly defines the offense and prescribes its penalty.
Instead, the DPP brought charges against Kwoyelo under customary international law and Common Article 3 of the 1949 Geneva Conventions. The DPP also brought alternative charges under the Penal Code Act. In 2018, the ICD confirmed the 93 charges against Kwoyelo, paving the way for the main trial to commence in September 2018.
During the pretrial proceedings, Dominic Ongwen, one of the five LRA commanders indicted by the ICC, surrendered and was transferred to The Hague for trial. As a result, Uganda became one of the few countries to conduct parallel criminal proceedings at both the national and international levels for crimes committed during the same armed conflict. These parallel proceedings highlighted stark differences between the courts with respect to capacity, legal and institutional frameworks, resources, and facilities. These disparities were not lost on the victims and their advocates, who perceived those involved in Ongwen case to have received better support and representation than their counterparts in the Kwoyelo case. At one of the hearings, Kwoyelo was quoted as having requested to have his case transferred to the ICC so that he could benefit from the expedited proceedings.
Ongwen’s trial, which began years after Kwoyelo’s, ended in 2021 with his conviction on 61 counts of war crimes and crimes against humanity and a 25-year prison sentence. In February 2024, the ICC issued an order for reparations for victims of Ongwen’s crimes.
With the conviction of Kwoyelo, victims anticipate reparations similar to those ordered in the Dominic Ongwen case. However, unlike the Rome Statute, which explicitly provides for reparations for victims upon conviction and establishes a mechanism for their fulfillment, the ICD lacks any specific legislative provision in this regard. Instead, under the ICD rules, it is left to the discretion of the trial panel to order the convicted person to pay compensation to victims in addition to any other lawful punishment. The court may also impose fines or other reparative orders deemed fit and proper. The rules require the trial chamber to consider victims’ views when determining the nature of reparations they are to receive. However, the rules are silent on the specific forms of reparations or how they would be fulfilled.
Since Kwoyelo has been in detention for 15 years and has no discernible assets, any order for reparations is unlikely to be fulfilled unless the government assumes responsibility for them, as mandated under the UN Basic Guidelines on the Right to Remedy and Reparations. Considering how long it has taken to deliver justice and the magnitude of the material, moral, physical, and psychological harms victims endured, the trial panel exercising its discretion must order the Ugandan government to provide adequate reparations to victims of Kwoyelo’s crimes, in accordance with its obligations under international law.
The trial of Thomas Kwoyelo offers valuable lessons for states aiming to prosecute international crimes within domestic courts. A key lesson is the importance of a robust legal framework that clearly defines international crimes, outlines victims’ rights, and stipulates how they can participate in the different stages of the proceedings. The legal framework should also include provisions for reparations, specify various forms of reparations, and designate the institution responsible for implementing the reparations. Furthermore, it should put in place witness protection measures to ensure the safety of both witnesses and victims during the judicial process.
Adopting procedures that align with the country’s legal system and available resources is equally important. While the ICC provides vitally important standards and best practices for international crime cases, national courts often do not have the capacity and resources to meet these standards. Thus, domestic courts must create procedures suited to their resources and legal context while ensuring that victims’ rights, and the accused’s right to a fair trial, are upheld without compromise.
Expertise in international criminal law is critical for the effective investigation, prosecution, and adjudication of international crimes. Investing in the development of this expertise at the national level is thus essential. This includes incorporating international criminal law in the university law curricula to build a pool of lawyers with specialized knowledge in the field. It is also important to include it in ongoing professional development and training for legal practitioners, judges, and law enforcement officers involved in these cases.
Prosecuting international crimes efficiently and with integrity demands significant financial and logistical resources. The government must first distinguish divisions handling international crimes from those handling ordinary crimes. It must then allocate adequate resources for thorough investigations, effective prosecutions, and meaningful victim participation in international crimes proceedings.
Finally, it is necessary to invest in public outreach and communication because, given the nature and magnitude of the crimes, all Ugandans have a vested interest in knowing the progress of the legal proceedings and the decisions made by the court. This transparency is essential for building trust in the judicial process, dispelling any misconceptions about it, and fostering meaningful participation of victims.
The conclusion of the Thomas Kwoyelo trial signifies a pivotal moment in the quest for justice for the victims of the atrocities committed during the armed conflict in Northern Uganda. Despite the lengthy and complex judicial process, Kwoyelo’s conviction underscores the importance of holding perpetrators of international crimes accountable. It is crucial for the Ugandan government to now fulfill its obligation to provide adequate reparations to the victims, ensuring that their suffering is acknowledged and their dignity is restored.
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PHOTO: Thomas Kwoyelo takes the stand at a court hearing in Gulu, Uganda, in January 2020. (Sarah Kasande/ICTJ)
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