Ugandan ICC Fugitive No More? The Hunt for Joseph Kony et al.

Further to our series on ICC fugitives, some reports have emerged that Okot Odhiambo, one of the top LRA leaders indicted by the International Criminal Court (ICC), has been killed in battle with the Ugandan People’s Defense Forces.  [Update: This rumor has still not been substantiated].  Odhiambo does not enjoy the name recognition of his boss, Joseph Kony, but he has been associated with serious international crimes and other human rights abuses.  Ugandan authorities are apparently trying to confirm the rumors (although it has been speculated in the blogosphere that this may be a ploy to divert attention from the controversial legislation addressed to gay and lesbian persons). By way of background, the first arrest warrants issued by the ICC Office of the Prosecutor in 2005 were against Joseph Kony and four of his Lord’s Resistance Army (LRA) henchmen.

Of the four, Dominic Ongwen and Okot Odhiambo are still at large.  Vincent Otti and Raska Lukwiya are now dead—the former was apparently executed on Kony’s orders and the latter died in combat with the Ugandan People’s Defense Forces (UPDF).  There have been rumors in the past of other deaths (including Ongwen’s in 2005, which was proven false by DNA tests), but these have not been substantiated.  The remaining LRA defendants have been on the run in one of the most inaccessible and insecure parts of the world, which sits at the juncture of a set of nations with only the most tenuous control over their hinterlands: the Republic of South Sudan (RSS), the Central African Republic (CAR), Southern Darfur State in Sudan, the disputed Kafia Kingi enclave between Sudan and RSS, and northeastern Democratic Republic of Congo (DRC).  Dense foliage confounds aerial surveillance, and the LRA’s areas of activity are generally outside established communications networks.  The remaining few hundred LRA fighters are reportedly living a nomadic lifestyle, traveling in small bands with their wretched abductees—including a number of children—in tow.  They are rumored to be a fractured bunch, suffering from low morale and increasingly alienated from their messianic leader with whom they communicate by courier. These apparent schisms within the LRA offer an opportunity to divide and conquer by weakening Kony’s protective network and sources of support.

Uganda, its Western partners, NGOs, and the Security Council have all endorsed a policy of encouraging defections.  Regional forces and NGOs have been dropping “come home” leaflets and broadcasting related messages through the radio and from helicopter-mounted speakers in areas where there have been LRA sightings.  Many of the 33 individuals who defected in 2012 indicated that these efforts influenced their decision to desert the LRA.  Indeed, this defections strategy has motivated some high-profile desertions (including one of Kony’s abducted “wives”), which have undoubtedly generated valuable, if dated, information about Kony’s whereabouts and modus operandi.  Moreover, some key LRA leaders have been captured (e.g., Caesar Achellam in May 2012) or killed (e.g., Vincent Binany Okumu in January 2013).

Uganda has enacted, let partially lapse, and re-activated an amnesty law that encourages the defection of individuals engaged in an armed rebellion in exchange for promises of impunity and reintegration.  The Amnesty Act established an Amnesty Commission, which has to date issued over 12,000 certificates of amnesty to LRA fighters.  While such amnesty opportunities may be acceptable for breaches of laws penalizing mere membership in the rebel group, or for forms of armed rebellion, they raise acute international law, human rights, and fairness concerns when they purport to extinguish liability for the commission of international crimes.  These concerns suggest that the Ugandan authorities must work to find the right balance between encouraging LRA members and abductees to leave the group, while prosecuting those most responsible for serious human rights violations.  Moreover, the international community—and particularly donors—must maintain its support for regional efforts toward the demobilization, disarmament, reintegration, and rehabilitation of current and former child soldiers as well as and LRA abductees so that these individuals have something to “come home” to.

The United States has made significant contributions to the regional Kony manhunt and related efforts to suppress the LRA and rehabilitate LRA-affected regions.  The Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, signed into law by President Obama in 2010, states that it is the policy of the United States to “work vigorously” to:

eliminat[e] the threat posed by the Lord’s Resistance Army to civilians and regional stability through political, economic, military, and intelligence support for a comprehensive multilateral effort to protect civilians in affected areas, to apprehend or otherwise remove Joseph Kony and his top commanders from the battlefield, and to disarm and demobilize Lord’s Resistance Army fighters; and … further support comprehensive reconstruction, transitional justice, and reconciliation efforts.

The Legislation also authorized the President to “provide assistance to respond to the humanitarian needs of populations in northeastern Congo, Southern Sudan, and Central African Republic affected by the activity of the Lord’s Resistance Army.” In 2011, President Obama with bipartisan support launched Operation Observant Compass and sent 100 combat-equipped military advisors drawn from U.S. Special Operations Forces to assist the UPDF and an African Union Regional Task Force (AU-RTF) in their efforts to track Kony and “remov[e him] from the battlefield.”  This is on top of the provision of substantial matériel (including communications equipment, logistical support, tactical equipment (e.g., night vision goggles), and vehicles) to this initiative.  This operation has since been re-authorized and expanded and is estimated to cost in the range of $4.5 million per month.  The advisors are meant to be just that—they are not mandated to engage LRA forces unless necessary for self-defense.   However, they are now authorized to conduct joint patrols with their regional counterparts.

Although Kony’s trackers have come very close to capturing him, their efforts have been hindered by a whole host of challenges, including: the continued need for training and capacity-building among local forces; variable permission to operate in DRC; the unrest in neighboring CAR following the Seleka alliance coup, which suspended the program for a spell; a lack of coordination between the troops of different sending states; the difficult terrain and triple canopy jungle; potential intelligence leaks; the area’s porous borders; and, at times, a lack of resolve among the regional troops.  In addition, in the past, there were allegations that Sudan was providing safe haven to LRA bands in retaliation against Uganda for its support of the Sudan People’s Liberation Movement, although this support appears to have subsided. A major challenge to effectuating Kony’s capture has been the dearth of real-time information about his whereabouts and movements.  By the time word emerges of Kony’s appearance, he has moved on, leaving a trail of destruction, abduction, displacement, and poaching behind him.  One solution to this obstacle is the development of better telecommunications capabilities in LRA-affected communities (building cell towers, distributing cell and Thuraya satellite phones with geo-location capacities, providing high-frequency radios, and creating hotlines and tip lines), so people have a quick, secure, and costless ways to contact Kony’s pursuers in the event that the LRA passes through an area.  Such efforts will have the secondary effect of contributing infrastructure to the much needed development of these regions.

The United States has also added Kony, Ongwen, and Odhiambo to its War Crimes Rewards Program (WCRP).  This Program originally applied only to indictees of three ad hoc tribunals dedicated to adjudicating crimes committed in the former Yugoslavia (ICTY), Rwanda (ICTR) and Sierra Leone (SCSL).  The U.S. Congress amended the law in January 2013 to allow rewards to be offered for information leading to the arrest or conviction of foreign nationals charged by any international tribunal, including hybrid and mixed tribunals (such as the Bosnian Special Chambers or the proposed mixed chambers for the DRC and Syria).  In April 2013, Secretary of State John Kerry designated the ICC’s LRA defendants into the expanded program.  The program does not authorize the payment of a “bounty” for delivering a fugitive “dead or alive”; rather, designees must be fully prosecuted before any rewards will be issued.  Nor does the program apply to government agents (U.S. or foreign) who furnish information “while in the performance of his or her official duties.”  Thus, members of the UPDF and U.S. special forces may be ineligible for rewards (although the former’s friends or relatives could conceivably benefit if they provide the actionable information).

In parallel with this effort, the Department of Defense (DoD)’s African Command (AFRICOM) also manages its own rewards programs in areas in which it operates.  The DoD program enables the payment of rewards for the provision of information with the primary goals of force protection and counter-terrorism, including the arrest of wanted persons and the capture of weapons caches.  Rewards can be paid in connection with the Kony operation on either ground since the LRA has been on the United States’ Terrorist Exclusion List since 2001, and Kony has been on the list of Specially Designated Nationals and Blocked Persons created by Executive Order 13224 since 2008.  The DoD rewards, while not subject to the same restrictions as the WCRP, tend to be smaller than those of the WCRP and can also be paid collectively and in kind (with, e.g., food, vehicles, non-lethal equipment, infrastructure improvements, and local amenities).  Moreover, they can be paid close to immediately upon the provision of information.  An expansion of this program could amplify incentives to provide useful information to U.S. personnel in the region.  Both programs have benefited from an aggressive marketing campaign involving posters, fliers, and other “bling.”

Since the ICC arrest warrants were issued, Uganda has created a specialized International Crimes Division (ICD), with jurisdiction over war crimes, crimes against humanity, and genocide.  The Ugandan Supreme Court, which has had difficulty constituting itself for lack of a quorum, is set to hear an appeal of Thomas Kwoyelo, a mid-level LRA commander who is being prosecuted in the ICD, even though he is ostensibly entitled to amnesty under the Amnesty Act.  There is, of course, some chance that Uganda would choose to prosecute the LRA defendants itself in the event that they are captured alive.  President Museveni referred Uganda to the ICC in 2004, effectively outsourcing these prosecutions notwithstanding a relatively effective and fair judicial system.  Given that the regional and domestic politics have evolved since the time of the referral, Museveni may decide to invoke complementarity and assert Uganda’s prerogative to prosecute Kony et al. domestically.  (Uganda’s Minister of Justice, however, has indicated Kony would be sent to the ICC for trial).  Given that the ICC has its hands full with its current caseload, an admissibility challenge coupled with a robust domestic process may not be entirely unwelcome.

In sum, while there are areas where current efforts could be plussed up, the hunt for Joseph Kony obviously does not lack for high level attention or resources.  Accordingly, capturing the LRA fugitives may just be a matter of time, persistence, and patience.  Assuming they allow themselves to be captured alive… 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).