Zbornik radova Raskršća međunarodnog krivičnog prava, 107-116 str.)
AUTOR(I) / AUTHOR(S): Charles A. Khamala
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DOI: 10.46793/CrossrICL.107K
SAŽETAK / ABSTRACT:
Between 1986 and 2006, the Lord’s Resistance Army perpetrated crimes against humanity and war crimes against its own Acholi ethnic group in northern Uganda. Problematically, international criminal law’s dominant retributive and deterrence aims ignore the context in which atrocity crimes are committed. First, shortcomings in the ICTY’s global sentencing approach in Čelebići become apparent if compared to the Rome Statute’s three-tiered sentencing approach in Ongwen. Thus, considerations that LRA commanders, including Ongwen and Kwoyelo – suffered abductions and conscriptions as children – were merely mitigating factors, but did not exonerate them from culpability before the International Criminal Court and the Ugandan High Court’s International Crimes Division, or secure reparations for them. Second, despite conviction, they are both indigent and cannot compensate victims. Yet, while the ICC’s Trust Fund for Victims compensates victims in Ongwen’s case, Kwoyelo’s victims required the ICD to recognize the state’s secondary duty to pay reparations that perpetrators cannot afford. This paper constructs a normative framework based on command responsibility in the Čelebići case to compare and contrast the sentencing disparities in Ongwen and Kwoyelo under the Rome Statute and Ugandan law. Notably, a sentencing gap exists in Ugandan law. It lacks a reparations regime. Yet, some Acholi people were victimized not only directly by the LRA’s attacks, but also indirectly upon the state’s failure or neglect to protect them from the LRA, while displaced into IDP camps. Consequently, despite Kwoyelo’s indigence and inability to pay compensation they received reparations. Innovately, invoking the customary international law principle that states have a responsibility to prevent atrocity crimes, failure to do so, in itself, gives rise to a duty to pay compensation, the Ugandan Judiciary using theories of collective responsibility, enforced reparations from the state.
KLJUČNE REČI / KEYWORDS:
Dominic Ongwen, reparations, Rome Statute, Thomas Kwoyelo, Uganda’s International Crimes Division
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