Thursday, 27 October 2016

To Participate or Not? Getting Victim Participation Right in the Kwoyelo Case

Colonel Thomas Kwoyelo, a former commander of the Lord’s Resistance Army (LRA) is currently on trial before the International Crimes Division (ICD) in Uganda. He is charged with committing war crimes and crimes against humanity during a two decades-long war that ravaged northern Uganda. In preparation for the main trial, the ICD has so far held three pre-trial hearings in April, August, and September 2016 respectively.

On September 23, 2016, the ICD issued a landmark ruling on victim participation, allowing victims to participate in the proceedings akin to their right of participation before the International Criminal Court (ICC). Due to its recently adopted Rules of Procedure, victims in proceedings before the ICD are entitled to a wider range of rights than in criminal proceedings before ordinary courts. However, the exact extent of when and how victims can intervene and participate is not regulated in detail. As the case against Kwoyelo is the first case before the ICD, it is now setting the stage for victim participation at the ICD and creating a precedent for future cases. This article will analyse the rulings the ICD pre-trial judge has issued so far and the implications for victim participation in the remaining proceedings.

In the pre-trial hearing held from September 21 – 23, the defense made preliminary objections against the competence of the pre-trial judge to hear the case and the legality of the pre-trial hearing. The pre-trial judge rejected victims’ counsels’ request to make oral submissions on these points in response. In her view, the issues had been raised by the defense and, therefore, victims’ counsels’ views were considered irrelevant.

The pre-trial judge’s reasoning for rejecting victims’ counsels’ request is unsatisfactory.  According to Rule 35(1) of the Rules of Procedure, all organs of the ICD must take into account the best interest, rights, and needs of victims when making decisions. When interventions are denied, it is therefore necessary to analyse whether or not the issue at stake affects victims’ interests, rights, and needs. The mere fact that an issue was raised by the defense should not be sufficient grounds to deny interventions by victims’ counsels. In this particular instance, a ruling issued in accordance with Rule 35(1) might not have led to a different outcome. However, it would have been an important reference for future interventions. It would have also addressed a gap in the Rules of Procedure, which are quite vague about when victim counsels can intervene.

The pre-trial judge in the hearing on September 23 also ruled on a number of points regarding victim participation. Firstly, she decided that the mode of victim participation at trial stage should follow the ICC model, which means that the trial chamber can allow interventions from victims’ counsels at different stages of the trial. It would not limit interventions to the sentencing stage, as practiced in ordinary courts in Uganda.

This ruling is a welcome move towards streamlining victims’ rights at the ICD with those granted by the ICC. Given the similar jurisdiction and parallel prosecution of members of the same rebel group, victims at the ICD should have the same rights as those participating at the ICC. However, it is noteworthy that decisions concerning victim participation can vary between different trial chambers at the ICC. A thorough analysis of past ICC decisions on victim participation should therefore form part of the ICD trial chamber’s assessment of when to allow interventions by victims’ counsels. The ICD’s decision also demonstrates that more consistent rulings by the ICC trial chambers would be important to guide decisions in local international crimes procedures such as in Uganda.

Secondly, the pre-trial judge ruled on the application process for victims and ordered that victims apply formally to the ICD Registry. After having received the victim applications, the Registry is tasked with determining the victim status of each individual applicant. This ruling is important to ensure clarity for all parties concerned as to who will participate in the proceedings and eventually be entitled to reparations. However, it is doubtful whether the Registry currently has the structures and resources to process victim applications, especially if they are filed in large numbers. For example, the ICD Registry to date has not been able to conduct community outreach due to lack of resources. The ICD as an institution thus needs to ensure that the Registry has the capacities to manage this process.

With regard to the determination of victim status, Rule 6(2) of the Rule of Procedure requires the pre-trial judge to consider the status of victims. The order that the Registry is to accept or reject the applications does not necessarily contradict this stipulation because Rule 6(2) only requires a consideration rather than a determination. However, to respect Rule 6(2), the pre-trial judge should pronounce the decisions on the applications during the hearing. For victims, this can serve as an important form of recognition.

Thirdly, there is need for the pre-trial judge to identify the evidentiary threshold that victims have to meet to prove their victim status. This is not regulated in the Rules of Procedure. However, to make the process accessible for victims, they should not be required to prove their victim status beyond reasonable doubt. For example, Pre-Trial Chamber II at the ICC ruled in a decision dated March 9, 2012 regarding the situation in Uganda that for proof of identity a “statement signed by two witnesses attesting to the identity of the victim applicant” can replace an official identification document.

Fourthly, the pre-trial judge ruled that victims’ counsels have the right to produce evidence in addition to the defense and the prosecution. There is need for more clarity on what this ruling entails and to what stages of the proceedings the right to produce evidence applies. According to the Rules of Procedure and the Sentencing Guidelines, at sentencing stage, victims can produce evidence on the harm suffered as a result of the crimes the defendant is accused of. There is no provision, however, on whether this right applies during evidentiary hearings.  It is unclear whether the pre-trial judge’s ruling was intended to respond to this lacuna and allows victims’ counsels to introduce evidence before sentencing. During the last pre-trial hearing the defence lawyers rightly noted that “it was difficult to draw a distinct line between the victims represented by the prosecution and those represented by the victims’ lawyers.”  Therefore, if victims are allowed to produce evidence during evidentiary hearings, it would be necessary to clearly determine for which purposes such evidence can be introduced in order to avoid a potential perception that victims’ counsels are acting as a second prosecutor.

Finally, the prosecution was ordered to disclose the evidence of the case to the victims’ counsels. This is a welcome interpretation of Rule 21, which only requires disclosure to defense. Access to the case file will enable victims’ counsels to identify evidence that might pose a risk to victims when disclosed and to request protective measures, such as redaction, where necessary.

The Kwoyelo trial is in many ways the first of its kind in Uganda. The pre-trial judge’s decision to allow victim participation in line with the rights of victims before the ICC set an important precedent. It is now important that future decisions provide further content and clarity as to the extent of victims’ right to participation, thereby establishing a framework for participation in future ICD proceedings.

Monday, 10 October 2016

Why the ICC Should Reconsider its Decision on In Situ Proceedings in Uganda

On December 6, 2016, the International Criminal Court (ICC) will start the trial of Dominic Ongwen, a former commander of Lord’s Resistance Army (LRA), who is charged with committing war crimes and crimes against humanity in northern Uganda. One topic that has repeatedly generated discussion in the case of Ongwen is the possibility of the ICC holding in situ hearings in Uganda.

At a status conference held on May 23, 2016 in The Hague, the prosecution, the defense, and the victims’ representatives agreed that the trial chamber should consider holding in situ proceedings. The parties suggested holding the opening of the trial in Uganda, and preferably in Gulu. In addition, the prosecution and one of the victims’ representatives suggested that the trial chamber conducts a judicial site visit of the four locations (Pajule, Odek, Lukodi and Abok) where Ongwen allegedly committed the crimes with which he is accused.

On July 18, 2016, Trial Chamber IX of the ICC rejected these requests, citing among other reasons, security concerns and logistical difficulties involved in moving the trial to Uganda. The trial chamber also said that a decision on a judicial site visit to northern Uganda could best be made “at a later stage of the proceedings, after having heard, at least in part, the evidence to be presented at trial.”

Nevertheless, the court in its ruling acknowledged that holding the proceedings in northern Uganda would bring justice closer to the affected communities and also noted that its decision had been made “without prejudice to re-considering the matter at a later time.”

This is the second time that the court has rejected a request for in situ hearings in Ongwen’s case. In September 2015, Pre-Trial Chamber II recommended that Ongwen’s confirmation of charges hearing be held in Uganda, but this request was denied because the Ugandan Government expressed security concerns in the run up to presidential and parliamentary elections, which were about to begin.

Based on discussions with community members and representatives of civil society organizations working in Gulu, this article reflects on why the ICC should reconsider its decision to not hold hearings in Uganda.

Among other reasons, many people still strongly feel that that the trial should be held in Uganda. As one victim said, “a court process that takes place far away will not make us happy. We shall not know exactly what happened. It should take place nearby so that victims who suffered can follow it and, if possible, attend.”

The above comment indicates that some victims may not objectively interpret the ICC’s decisions in terms of the costs and security required. They will view it as a denial of participation in the process of justice. In the words of one community member: “In order for us to accept that the court case against Ongwen is the truth, it should be held in Uganda.”

Others, however, hold contrary views. Rosalba Oywa, a civil society practitioner living in Gulu said, “Looking at Uganda today, you can never know what will happen if the trial is held here. Ongwen stands a fair chance of getting justice in The Hague. You can never predict the level of intimidation that might be made against witnesses. After all the trial will be broadcast live, and in either case it is still the same judges who will try him. It will only be a change of venue but not a change of procedure.”

Another community member said, “It is not bad if he is tried outside. In Uganda there is corruption. If he is brought here the victims’ lawyers can even be bribed.”

These concerns are serious and reflect some of the reasoning of the trial chamber against in situ proceedings.  However, the argument in favor of an in situ hearing is reinforced by the fact that many victims live in a context where traditional and cultural mechanisms of justice are still very much a part of their daily lives. In line with traditional justice mechanisms of the Acholi, disputes are settled in open meetings presided over by local leaders and elders, and everyone has the right to attend and follow proceedings. Even if part of Ongwen’s trial was to be conducted in northern Uganda, many victims would be able to physically attend, a factor which will appeal to their local understanding of justice.

As one community member said, “Ongwen should be brought to Uganda so that victims see and hear the proceedings by themselves.”

Jackson Odong, who works with the Refugee Law Project in Uganda said, “I think it would be of benefit, especially in an African setting where people believe by seeing and touching. It would reinforce the confidence and belief in the court and enable people to participate. There will be more participation if the trial is held in Uganda compared to if it is held in The Hague.”

There is also evidence showing that a physical presence by the ICC in the field increases the local population’s willingness to engage with the court. One example is the numerous outreach visits that have been conducted by the ICC field office in Uganda, which have not only increased awareness about the ICC, but also motivated thousands of victims to register to participate in the case of Ongwen.

Another example can be drawn from past field visits by prominent ICC representatives to northern Uganda that were helpful in shaping a positive perception of the ICC in the region. In May 2010, the then ICC President, Judge Sang-Hyun Song, visited northern Uganda. Among other events, he attended a town hall meeting that was attended by approximately 350 people, which was a record for an ICC outreach meeting in Gulu.

In 2010, the public had a very negative attitude toward the ICC, so when community members were given an opportunity to ask questions, some people spoke harshly against the court. However, those who attended the meeting, including myself, watched admiringly as the president calmly answered the questions and justified the intervention of the ICC in northern Uganda. During the same visit, Judge Song held another community meeting that was attended by a record 670 people from Lukodi and surrounding villages.

More recently, in February 2015, ICC Prosecutor Fatou Bensouda visited northern Uganda. Like the ICC president before her, she attended a number of meetings with different sections of the population, including religious and traditional leaders, locally elected representatives, and members of civil society organizations. At these meetings she explained the position of the ICC and answered hundreds of questions.  Bensouda went a step further by visiting several communities that had been affected by the conflict, including Lukodi. Her visit had a big impact upon many community members who attended, an event that many still recall fondly. As a local leader in Lukodi said, “I was very happy with her visit. It made me believe that she had come in her capacity as the ICC prosecutor to verify for herself what had happened in Lukodi. It made me believe that the truth would come out.”

In conclusion, the above comments indicate that many people hold the view that an in situ hearing in northern Uganda would not only bring justice closer to the people, but also increase the popularity of the ICC among the population. The ICC in northern Uganda is viewed in a more favorable light today by many people compared to when it first intervened in the Ugandan situation in 2004. This is demonstrated, inter-alia, by the huge interest victims have shown for participation in Ongwen’s trial. If a few visits by prominent ICC officials could have such a big impact, imagine what an in situ hearing could do for the ICC.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda. The opinions expressed above do not necessarily reflect the views of Open Society Justice Initiative.

Landmark Ruling on Victim Participation in the Case of Thomas Kwoyelo

Colonel Thomas Kwoyelo is a former LRA commander who is currently facing charges of war crimes and crimes against humanity before the International Crimes Division (ICD) of the High Court in Uganda. Kwoyelo has been in detention since he was captured by the Ugandan Army in 2008. Kwoyelo first appeared before the ICD in 2011, but the start of his trial was delayed as a result of preliminary objections raised by the defense lawyers that he was entitled to amnesty.  Two pre-trial hearings were held in April and August 2016 respectively, in preparation for the main trial, which is scheduled to start later this year.

From September 21 to 23, 2016, the International Crimes Division (ICD) sitting at the High Court in Gulu held a third pre-trial hearing. Among other factors, this hearing was necessitated by the fact that the ICD in June 2016 had developed and approved new rules of procedure (ICD Rules 2016), which called for the holding of a pre-trial conference, and also by the fact that Kwoyelo’s privately appointed lawyers were not present at the previous hearing.

One of the key decisions that emerged out of this hearing was a landmark ruling on victim participation, where the court decided that victims would be allowed to participate in proceedings through their legal representatives. The court, however, ruled that the nature and extent of their participation would be determined at a later date by the trial chamber. This is the first ruling of this nature in Uganda and sets a precedent in Ugandan jurisprudence.

Prior to the above ruling, the court grappled with the question of whether or not the presiding judge, Honorable Justice Susan Okalany, was legally mandated to preside over proceedings before the ICD. According to Rule 6 of the ICD Rules 2016, “The head of the Division [ICD] shall designate a Judge of the Division to preside over the pre-trial proceedings.” In the opinion of the defense, while Justice Okalany is a judge of the High Court, she was not specifically appointed to the ICD, and therefore Rule 6 barred her from presiding over any proceedings of the ICD.

The second objection raised by the defense was in regard to the legality of the current pre-trial hearing. The defense argued that in the pre-trial hearing held on April 4, 2016, the ICD Rules had not yet been developed and approved by the court, and therefore following the approval of these rules, there was need for a court order instructing the ICD proceed de novo. They argued that the absence of a court order in this regard made any pre-trial hearing held after April 4, 2016 illegal.

The defense was overruled in both instances raised above, with the court noting that Article 139 of the Ugandan constitution mandated the High Court to handle all matters civil or criminal. The court also noted that ICD judges were not specifically designated to serve only within the ICD but that there was an established practice within the High Court where judges were assigned to carry out assignments in other court circuits without segregation. She also noted that there were no special qualifications for ICD judges that distinguished them from other judges of the High Court in Uganda. The court also ruled that the adoption of the ICD Rules after April 2016 had no impact on the current proceedings.

Following the above ruling, the defense said they were not satisfied and requested a stay of proceedings to enable them to appeal the court’s decision in a higher court. This request was also denied. The court noted that judges of the High Court were not permanently assigned to the ICD and that within the ICD legal framework any judge of the High Court could handle a pre-trial hearing and issues required for settlement before commencement of the main trial. The court also noted that appeals were a matter of statute, which meant that appealing against interlocutory rulings was not permissible and that for decisions to be appealed against, they had to be final. In the words of the presiding judge, “appealing against every decision of the court during trials would make it impossible to finish trials, undermine procedure, and open the court to an abuse of the process.” The court therefore ordered for proceedings to resume.

On the second day of the hearing, the defense raised more preliminary objections. The first objection was in regard to the status of the victims’ lawyers present in the court. The defense noted that “the victims’ counsels appeared to represent an unknown set of victims because under international law victims would ordinarily have applied for participation in the case, and thereafter the court would determine if they could participate or not, and if they were entitled to reparations.” The defense argued that at the moment it was difficult to draw a distinct line between the victims represented by the prosecution and those represented by the victims’ lawyers. The defense requested the court to come up with guidelines regarding the participation of victims and the role of the victims’ counsel, which they believed was unclear. The prosecution, for their part, stated that they had no objection to the participation of the victims’ lawyers in the trial.

The victims’ lawyers responded to the defense’s objections by informing the court that they had a list of victims that they intended to submit for participation. The victims’ lawyers further argued that victims needed to participate at all stages of the trial. As one victims’ lawyer noted: “If victims do not participate during the process and come at the end, then what would be the purpose of their participation?”

The second preliminary objection was in regard to the accused’s failure to understand the charges against him because all documents being used were in English, and Kwoyelo only understands Acholi. The defense requested that the indictments, the summary of the case, and all written statements against the accused be translated into the Acholi language. As noted by one of the defense lawyers, “It is not the defense lawyers who are on trial but rather the accused. Every statement therefore needs to be translated.”

In reply, the prosecution argued that informing the accused of the indictments against him did not necessarily call for the translation of all the documents into writing and that oral submission was in itself adequate. The prosecution also argued that interpretation of all documents would cause an unnecessary delay and would require a lot of resources. As an alternative, the prosecution suggested that an interpreter be assigned to Kwoyelo.

The third preliminary objection raised by the defense was in regard to the disclosure of evidence by the prosecution. The defense noted that disclosure had not been made in conformity with the law because much of the evidence had been redacted without authorization of the court. The defense also contended that some evidence had not yet been disclosed to them. In response to this, the prosecution promised to disclose all evidence and to apply to the court for redaction and non-disclosure where necessary.

Finally, the defense requested that the court facilitates Kwoyelo’s lawyers with resources to prepare for the trial. They specifically requested financial support, researchers, vehicles, computers, and other facilities that would enable them to prepare for the trial. In reply to this request, the prosecution noted that while the accused was entitled to assistance to enable him to prepare for his trial, any assistance offered had to be within the means of the State.

After listening to arguments from the defense, the prosecution, and the victims’ lawyers, the court made the decisions below.

On victim participation, the court found that there was a consensus in all submissions that victims should participate in proceedings. The court therefore ruled that victims would be allowed to participate in a manner similar to provisions of the International Criminal Court (ICC) Rules of Procedure and Evidence. The court directed that victims apply formally to the ICD Registrar for participation and that each application was to be made individually and considered on its own merit. The court ordered the Registrar to compile a list of all victims for purposes of formal recognition. The court also ruled that the victims’ lawyers would be at liberty to provide evidence to the prosecution and the defense. The court finally ruled that the extent of participation of victims at different stages of the trial would be subject to determination by the trial chamber.

In regard to the defense request for translation of all documents into Acholi and for facilitation with resources, the court ordered that the ICD Registrar provide the defense team with research funds and transport to help Kwoyelo in preparing for his defense. The court also ordered the appointment of an Acholi interpreter to be paid by the ICD Registry throughout the trial. In addition, the court ordered that the summary of the case and indictments be translated into Acholi to enable Kwoyelo to understand the charges against him.

On the disclosure of evidence, the court ruled that the prosecution had not acted in accordance with the law in redacting or withholding evidence without prior permission. The court therefore ordered the prosecution to disclose evidence to the court within 15 days in accordance with Rule 21(4) of the ICD Rules 2016. The court also ruled that the prosecution makes disclosure of unrestricted evidence to the defense and the victims’ counsels within 15 days. The court also directed that the prosecution applies to the court in the event that they wished to redact or withhold evidence.

The next pre-trial hearing is scheduled to take place on October 31, 2016.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in Northern Uganda.