Jane Patricia Bako is a International Criminal Justice Officer with Avocats Sans Frontieres and Lecturer of Law at Uganda Christian University. The views and opinions expressed in this commentary do not necessarily reflect the views and opinions of the Open Society Justice Initiative or Avocats Sans Frontieres.
The International Crimes Division (ICD), formerly known as the War Crimes Division, was established in 2008 as part of the fulfillment of the Peace Agreement on Accountability and Reconciliation[pdf] that was signed between the Government of Uganda and the Lord’s Resistance Army (LRA) in 2007. Clause 4 of the agreement provided that Uganda was to establish a special court to try those who committed crimes during the conflict in northern Uganda.
Originally, the ICD had jurisdiction over war crimes, crimes against humanity, and the crime of genocide, but through Legal Notice No. 10 of 2010 [pdf], its jurisdiction was extended to terrorism, human trafficking, piracy, and other international crimes.
There are currently two major trials before the ICD: Uganda vs Thomas Kwoyelo and Uganda vs Kabambwe Ali and 35 others (hereafter referred to as the Mukulu case because the main defendant is the former rebel commander of the Allied Democratic Forces, Jamil Mukulu). In the Mukulu case, the accused are alleged to have committed crimes including terrorism, aiding and abetting terrorism, crimes against humanity, murder, and aggravated robbery. Thomas Kwoyelo, on the other hand is facing, 67 counts of crimes against humanity and violations of Common Article 3 of the Geneva Conventions under customary international law and other offenses under Uganda’s penal code for his alleged role as a former combatant in the LRA.
Victims’ Participation Before the ICD
Victims’ participation in criminal proceedings in Uganda is a new practice that many legal practitioners do not understand very well. In my recent visit to the ICD, Justice Mukiibi Moses noted that the government of Uganda itself is not appreciating that the ICD is a court that needs special attention compared to courts that oversee ordinary criminal offenses.
In June 2016, the ICD adopted the Rules of Procedure and Evidence [pdf], which among other things, provides for victims’ participation. With the adoption of the Rules of Procedure, the ICD became the first court in Uganda to give an opportunity to victims to participate in its proceedings. Rule 3, defines a victim as someone who has suffered harm either directly or indirectly as a result of acts or omissions that constitute crimes under the ICD.
Comparing Victims’ Participation Before the ICC and the ICD
One of the main differences is that of context. The International Criminal Court (ICC) has been operational for well over a decade and has staff with extensive knowledge and experience on how the victim participation regime operates under the Rome Statute. In contrast, victim participation is new to Ugandan courts given the fact that they are guided by the common law system, which does not recognize victim participation. The ICD also lacks the relevant staff capacity and resources to fully carry out its mandate in terms of victim participation.
Many of the legal provisions regarding victims participation are similar in the two jurisdcitions. Article 68(3) of the Rome Statute of the International Criminal Court (ICC) grants victims the right to participate before the court by allowing their views and concerns to be presented at various stages of the proceedings, including at certain times during the pre-trial stage. The ICC also takes into consideration the rights of the accused to ensure that the trial is fair and impartial. It is important to note that this provision of the Rome Statute does not specify a timeframe within which the victims can participate in the proceedings and therefore it is up to the judges to decide the appropriate time.
In addition, for the victims to be allowed to participate in the proceedings, they are required [pdf] to apply in writing to the Registrar expressing their interest in doing so. The ICC Rules of Procedure and Evidence (RPE) [pdf] allow victims to choose to participate either through their legal representative or through the common legal representative appointed by the court. According to the RPE, the Registry of the ICC coordinates the whole process by referring victims to a list of counsel maintained by the Registry or suggest one or more common legal representatives. This provision illustrates the role of the victims in the process of appointing their legal representative and ensuring that their rights are respected, promoted, and protected.
The ICD Rules of Procedure also provide for victims’ participation starting from the pre-trial stage. As a general principle, the ICD is expected to take into account the interests of victims as provided under Rule 35 of the ICD Rules. The draft Registry Guidelines of the ICD [on file with author] elaborate in detail the concept of victims’ participation ranging from the selection of the victims’ representative, the role of victims’ counsel, and how the victims’ should initiate their participation.
At the ICD, a victim may be accorded a lawyer of his or her own choice at a cost, if he or she can afford one. If a victim is unable to afford a lawyer, the Registrar of the ICD will assign one for him or her. When there is a large class of victims, the Registrar shall, for the purposes of ensuring the efficiency of the proceedings, request that victims choose a common counsel. However, it is possible that this could lead to the problem that at the time of appointment, victims’ counsel may not know who their clients are, and along the same line, victims have very little say regarding the lawyers who may be appointed. This happened in both the Kwoyelo and Mukulu cases.
The victims, through their counsel, shall then make written applications to the Registrar expressing their need to participate in the proceedings. However, this poses a particular challenge in Uganda’s common law system and for the court to carry out this mandate, it will involve expertise, resources, and setting up a special unit to handle the issues specific to victims, which the ICD has not been able to do.
At the ICC, Article 68(1) of the Rome Statute provides for the safety, physical, and psychological well-being, dignity, and privacy of victims and witnesses while Rule 17(2)(a)(iii) of the RPE makes a provision for medical and psychological assistance for victims. However, this provision only applies to victims who testify before the court, also known referred to as dual-status victims. Victims who only participate without providing formal testimony as not provided access to such assistance.
Similarly, under Rule 34(3)(b) of the ICD Rules of Procedure, the Registrar may, in consultation with relevant government authorities, assist the witness and victims to obtain medical and psychosocial support. However, currently the ICD has not been able to undertake this role due to financial constraints. In Avocats Sans Frontieres’ work with victims in the Kwoyelo case, we have had to engage a psychologist for all the outreach activities we have conducted in the affected areas as outlined in the indictment in order to avoid scenarios of re-traumatization. The ICD has yet to have a discussion on how the victims who will be testifying before the court will be handled in order to avoid cases or re-traumatization during the process.
One difference between the two jurisdictions pertains to protective measures that may be provided to victims who testify or appear physically before a trial chamber. Rule 87 of the ICC’s RPE provides for protective measures when requested to ensure the security of dual-status victims. Protective measure may include: testifying in private session, concealing the identity of a victim or witness from the public records of the chamber, and prohibiting the prosecutor, defense, or any other participant in the proceeding from disclosing such information to a third party.
The ICD, on the other hand, does not have clear mechanisms used to ensure the safety of victims who may testify before the court. To make matters worse, Uganda does not have a witness protection law, thus leaving the safety of victims and witnesses at stake.
The ICD is a unique court that requires significant support to be able to handle the complex cases brought before it. These complex cases require more human resources and financial support compared to ordinary criminal proceedings in order to ensure that trials are executed without prejudice to the rights of all parties and with adherence to international fair trial standards.
A victims and witnesses unit should be established to protect both victims and witnesses participating in cases. The witness protection bill, currently before the First Parliamentary Council, should therefore be passed into law in order to support the work of the ICD Registry in ensuring the security of those participating in court proceedings.
The ICD Registrar should be supported in her mandate. For example, creating a section at the court to specifically handle victims’ participation would be a tremendous step toward. There is also an imminent need for a section of the ICD to handle the well-being of victims, especially in terms of psychosocial support. It is important that this is considered to avoid scenarios of re-victimization.
Making the concept of victims’ participation a reality is of paramount importance. Despite all the efforts of the ICD to ensure victims’ participation, more needs to be done, especially when implementing the Rules of Procedure and Evidence. Borrowing some of the best practices of the ICC and applying them to the Ugandan context is one way to help ensure the adjudication of cases brought before the ICD includes meaningful participation of victims. Ensuring participating victims know who their counsel is and establishing a witness and victims unit are ways to achieve this.
The ICD has shown that it has the willingness to ensure that victims participate in the proceeding. However, challenges remain at the ICD in terms of financial support and willingness from the Ugandan judiciary at large to appreciate the uniqueness of the ICD in terms of its operations, as seen in the latest postponement of the Kwoyelo case. It is hoped that if this ICD is given all the support it requires, then victims’ rights will achieve new milestones in Uganda.