(Cape Town) – Legal and organizational issues that have emerged during Uganda’s first war crimes prosecution pose challenges for Uganda in seeking to ensure justice for victims of the most serious crimes, Human Rights Watch said in a briefing paper released today. Uganda’s early experience may provide relevant information to other countries seeking to hold domestic trials for serious crimes committed in violation of international law – genocide, war crimes, and crimes against humanity.
In recent years, there has been increasing focus on making it possible for national courts to conduct trials of serious crimes. In particular, states parties to the International Criminal Court (ICC) have devoted greater attention to complementarity – the principle that national courts should be the primary vehicles for prosecuting genocide, war crimes, and crimes against humanity.
The 29-page briefing paper, “Justice for Serious Crimes before National Courts: Uganda’s International Crimes Division,” provides a snapshot of progress from Uganda’s complementarity-related initiative: the International Crimes Division (ICD). The ICD is a division of the High Court with a mandate to prosecute genocide, war crimes, and crimes against humanity, in addition to crimes such as terrorism. Based on research by Human Rights Watch in Uganda in September 2011, this briefing paper analyzes the ICD’s work to date, the obstacles it has encountered, and challenges both for the future work of the ICD and for national accountability efforts more broadly.
“National war crimes trials should provide accountability for crimes committed in Uganda,” said Elise Keppler, senior international justice counsel at Human Rights Watch. “However, outstanding questions remain for the International Crimes Division if it is to succeed in reaching its potential as a forum for delivering meaningful justice.”
The briefing paper is part of a body of work on complementarity by Human Rights Watch, which includes research relating to Bosnia, Democratic Republic of Congo, Guinea, and Kenya.
The one case now before the ICD involving war crimes is that of Thomas Kwoyelo, a member of the Lord’s Resistance Army (LRA) rebel group. The case is challenging the very legal framework within which the ICD operates, Human Rights Watch said. Its outcome is likely to be decisive as to whether cases involving serious crimes committed by LRA members during the two-decade conflict in Northern Uganda with the Ugandan government can proceed.
The challenges include whether Uganda’s Amnesty Act will ultimately bar cases against members of the LRA, and whether Uganda’s law implementing the ICC’s Rome Statute can be used to prosecute crimes from the conflict.
The paper focuses on the importance of credible justice, including accountability for crimes committed both by the LRA and the Ugandan armed forces, and the need to provide adequate support and time for the accused to properly prepare a defense.
The briefing paper also evaluates the impact of structural inadequacies in the ICD, such as frequent rotation of staff on and off the division and the lack of an adequate witness protection and support scheme.
“The experience of the International Crimes Division may offer insights to other states facing the task of prosecuting war crimes before domestic courts,” Keppler said.
The Ugandan government should ensure that crimes committed by both the LRA and the Ugandan army are addressed and that legal obstacles are surmounted, Human Rights Watch said.
Donors have provided funding for the ICD, including for such significant needs as promoting protection of witnesses and providing interpreters. But other crucial areas – notably defense representation – remain underfunded.
Donors should review their support to ensure that funding is adequate. Donors should also highlight the importance of the ICD addressing crimes committed by both the LRA and the Ugandan army.
“The Ugandan government will have to provide uncompromised backing for the ICD to ensure fair, effective trials,” Keppler said. “Donors also have a critical role to play, not only by funding key needs, but also by stressing the importance of justice for crimes committed by both sides.”
The northern Ugandan conflict, which raged for more than two decades, has been characterized by serious violations of human rights and humanitarian law by the LRA and the Ugandan army. Following a request by the Ugandan government to the ICC Office of the Prosecutor (OTP), the OTP opened an investigation into northern Uganda in 2004. The ICC issued warrants in 2005 for LRA leaders for war crimes and crimes against humanity, which are outstanding.
The idea for the ICD came about during peace talks between the LRA and the Ugandan government in Juba, Southern Sudan, from 2006 to 2008. The talks produced agreements which provided that Uganda’s government would establish a “special division” to hold national trials of serious crimes. While the LRA leadership never signed the talks’ final agreement, the Ugandan government made a commitment to carry out the agreement unilaterally to the extent possible.
The International Justice Program of Human Rights Watch is developing a wider body of work on complementarity. Researchers have conducted fact-finding on domestic accountability efforts in 2010 and 2011 in Bosnia, Democratic Republic of Congo, Guinea, and Kenya.