Press release: International Court of Justice Ruling in the DRC v. Uganda Case: Ensuring a Victim-Focused and Effective Implementation of the Reparations Order

On 9 February 2022, the International Court of Justice (ICJ) ordered Uganda to pay $325 million in reparations to the Democratic Republic of the Congo (DRC)  for damages to persons, property and natural resources resulting from Uganda’s military intervention in the wars in the DRC between 1998-2003. This follows on from the 2005 judgment in which the ICJ ruled that Uganda’s (direct and indirect) military actions in this period had violated the principle of non-intervention.

In this ruling, the Court also established that Ugandan armed forces were culpable of having «committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population, destroyed villages and civilian buildings, failed to distinguish between civilian and military targets and to protect the civilian population in fighting with other combatants, trained child soldiers, incited ethnic conflict […] and committed acts of looting, plundering and exploitation of Congolese natural resources».

This latest ruling represents an important recognition by an international court of the right to reparations for the victims of the wars in the DRC. It also reaffirms the reparation duties held by occupying powers for damages resulting from its direct and indirect actions that violate international law.

While the amount awarded is far below the $11billion requested by the DRC, it nonetheless represents the largest reparation awarded so far for gross violations of human rights and international humanitarian law by an international court.

We also welcome that the Court moved away from the application of a strict nexus between reparations and demonstrating exact injury. The Court thereby acknowledges that the particular context of the DRC conflict posed significant challenges to evidentiary fact-finding due to the large number of victims and belligerent factions as well as the destruction or inaccessibility of evidence.

However, we regret the opacity of the Court with regards to the methodology applied to (i) assess which evidence was accepted as having sufficient probative value and (ii) determine the amount of compensation awarded for each damage.

The ICJ decided to award reparations as a global rather than an individual sum. In effect, this means that the Court has left to the DRC the difficult task of devising a methodology for determining the equitable distribution of the awarded reparations to the victims.

We welcome the DRC’s stated commitment to set up a Victims Compensation Fund to this end. It will be essential to ensure  that the creation of this Fund, as well as the development of a methodology for the identification of victims and reparation modalities, happens in close consultation with victims and victims associations.

We also call on the Congolese authorities to develop a comprehensive and coherent overarching policy on reparations, to also address the needs of other victims of human rights abuses in the country’s multiple conflicts and to ensure the execution of reparation rulings by the Congolese courts.

The ICJ ruling should also serve as a reminder to the Congolese authorities that the passing of time cannot erase the grave human rights abuses committed in the DRC.

Finally, we regret that the Court has decided not to stay seized of the case until the final payment of the reparations. In light of the demonstrated inability of the DRC and Uganda to come to a mutual agreement on the reparations issue and Uganda’s rejection of the ICJ’s rulings, a mechanism to ensure post-adjudication compliance with the Court’s order would have been desirable.

We call on the Ugandan government to constructively engage with the Congolese authorities on the matter and to fully comply with the ICJ’s reparations order.

Coming at a time of improved relations between the DRC and Uganda, we are convinced that the timely execution of the ICJ’s reparations ruling would contribute to further rebuilding relationships between both countries.

Press release: Publication of the expert report on Belgian colonial past: Signatories call for a holistic and inclusive justice process

On the occasion of its presentation to Parliament, the signatories commend the publication of the report written by the multidisciplinary team of experts mandated by the Special Parliamentary Commission on Belgium’s Colonial Past. This report is a new milestone towards a better understanding of the Belgian colonial era. It constitutes an important contribution to a peaceful debate on this issue between the different segments of contemporary Belgian society.

Claims about the historical harms of colonisation and their contemporary consequences in terms of structural racism have been present for many years in the Belgian public debate, but have gained renewed interest since the ‘Black Lives Matter’ movement. It was this social mobilisation, led mainly by Afro-descendant groups in Belgian society, that led to the establishment of the Special Commission in July 2020. The report of the Commission’s experts must therefore be appreciated against the demands for justice regarding Belgium’s colonial past.

In this respect, the report shows certain limitations that should be noted. First of all, this report was born out of a narrow process of truth establishment, mainly contained within Belgian public institutions. As mentioned several times, the Special Commission that commissioned this expert report is a political commission, controlled by the different Belgian political parties. Its work is, for the time being, not open to representatives of Belgian civil society, nor to civil societies from formerly colonised countries. Therefore, the experts’ report is not the result of an inclusive and open process, in contrast to the established good practices of transitional justice in terms of truth-establishment.

Secondly, the report only partially fulfils the objectives set by the Commission itself. It essentially addresses Belgium’s colonial past in the current Democratic Republic of Congo, and does not address the cases of Burundi and Rwanda. Similarly, the report is essentially focused on the actions of the Belgian state, and only slightly covers the role of non-state actors. Yet the commission is mandated to examine the role and structural impact that not only the Belgian state and the Belgian authorities, but also non-state actors such as the monarchy, the church and the private sector had on the colonial phenomenon.

The signatories hope that this report will serve as a basis for an actual Transitional Justice process, whose tools (truth, justice, reparation and guarantees of non-repetition) are now established to be relevant to tackle colonial liabilities and continuities. The report offers a number of avenues for reflection that the Commission should materialize into concrete plans for reforms and in an open and inclusive framework. In this regard, the Commission is particularly expected to publish a work plan for its upcoming work and to clarify its engagement strategies with all stakeholders. This report should not be a mere contribution to History, but the basis for an articulated response to the demands for justice, for the past and the present.

In conclusion, the signatories welcome the initiative of the Belgian Parliamentarians to take up the debate on the colonial period and to try to objectify what is at stake. However, ASF wishes to recall that only a holistic and inclusive process of justice is capable of healing the wounds of Belgian society in order for its different segments to live together harmoniously and to restore the dignity of the victims of Belgian colonisation in Africa.

Signatories

  • African Futures Action Lab
  • Avocats Sans Frontières
  • Bamko-cran asbl
  • CaCoBuRwa
  • Christophe Marchand

Reparation to victims of international crimes in the Democratic Republic of Congo, a major challenge in the fight against impunity

ASF has been active in the fight against impunity and the field of international justice for over 15 years in the DRC. During that time, the organization has witnessed great progress but regrets that current mechanisms are still not up to the challenges at stake.

As conflicts persist and condemnations in international crimes are more and more regular, victims still struggle to effectively receive the reparations that are granted to them by courts and tribunals. This represents a major issue as reparations are considered fundamental to achieving an effective process of reconciliation in the DRC. To this day, despite the 28 million USD granted to more than 3.300 victims, only one reparation ruling has been partially executed.

This obviously constitutes a major issue in itself but this is not the only problematic aspect about the reparations granted. Their form raises two major issues as well. First, they can only be granted through judicial decision, limiting access to justice for many victims. Secondly, Congolese law only allows the allocation of individual and monetary reparations.

The nature of the crimes committed, the prejudices suffered and their impact on large portion of the population require an adapted response. ASF considers that the Congolese legal system in its current state does not meet the standards required for these international crimes trials. International criminal law, for example, provides for the possibility of collective and non-pecuniary reparations, provisions which have not yet been incorporated into national legislation.

ASF addresses those challenges through its project “Pursuing the fight against impunity of grave crimes committed in the DRC”, funded by the European Union, and implemented in partnership with RCN Justice et Démocratie and Trial International. ASF’s and its partners’ strategy revolves around 4 axes: access to justice for victims, capacity building of field actors, awareness-raising and advocacy.

Thanks to the collaboration between ASF, its partners and the bar associations of Northern Kivu, Ituri and Maniema, more than 500 victims of international crimesinternational have been able to benefit from legal assistance in 2020. To make sure they benefit from the best services possible, ASF and its partners organized training sessions on reparations and their execution to the attention of lawyers, but also training sessions on data collection in the context of international crimes for civil society organizations.

Finally, ASF and its partners work to raise awareness of victims of international crimes and lead an advocacy effort to denounce the non-execution of the judicial decisions in favor of victims.

According to ASF, there is an urgent need for a thorough review of the place given to victims and reparations in the many international justice trials taking place in the DRC. For if these challenges are not met, the whole transitional justice process in the country is at risk. Its success is fundamental to enable the population to regain confidence in its institutions and to hope to achieve real reconciliation at national level.

Djugu killings: Significant evolution of Congolese jurisprudence on reparations

The Djugu 2 trial came to an end on 1 April 2021. It concluded with 21 defendants being sentenced to life imprisonment for crimes against humanity by murder, arson, destruction, pillaging and persecution, and 11 defendants being acquitted. The 219 civil parties were also granted most of their claims for reparations, both individual and collective, including rehabilitation measures, thus breaking with the practice of awarding only damages.

Restitution was also ordered as individual reparations. Among the collective reparations measures, the Ituri Military Tribunal ordered the DRC to set up a health centre in each village for the medical and psychological care of the victims; to take measures to search for the unaccounted-for bodies and to provide the victims with the means to organise their mourning; to erect a monument in each village that had been attacked; and to take appropriate measures to put an end to the activities of the armed group CODECO. This is a particularly relevant reconciliation of the different reparation measures provided by international law, namely compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition.

This verdict is an important step in the fight against impunity in Ituri, a region that is the scene of significant inter-community and ethnic tensions. This trial concerns in particular the crimes committed by the armed group “Cooperative for the Development of Congo” (CODECO) against the Hema community in the territory of Djugu, between December 2017 and March 2020. CODECO claims to defend the interests of the Lendu community (farmers) against the Hema community (herders and traders). The CODECO militia had intensified its attacks in the territories of Djugu, Irumu and Tchomia after the death of its leader Matthieu Ngudjolo and the arrest of his main lieutenants.

The Djugu trial covered crimes committed in these territories between December 2017 and March 2020. The defendants were accused of having launched several widespread and systematic attacks against the civilian population, killing more than 800 people, burning more than 400 homes and displacing 200,000 people.

This decision sends a strong signal to the armed groups operating in the region who continue to violate the rights of the civilian population, as well as to the Congolese state, whose responsibility is also recognised by the Court. The DRC was thus ordered to pay reparation in solidum for having failed in its mission to protect the population. Almost all of the victims, witnesses and informants reported the presence of the Congolese national police and the Armed Forces of the Democratic Republic of Congo in the localities where the attacks and other reprehensible acts of which the defendants are accused were committed.

The proceedings were conducted in accordance with the law and the principles of a fair trial, in particular the legal time limits, despite the difficulties linked to the persistent insecurity caused by the presence of CODECO in the vicinity of Iga Barrière.

This verdict does not, however, mark the end of the judicial process for the victims of this case. Victims very rarely obtain the reparations to which they are entitled. The procedure for the execution of other forms of reparation is thus far from clear. The challenge now is to ensure that :

– The indigence of victims is recognised and they are exempted from the costs of the preparation of the case and the enforcement procedure;
– The administrative and judicial authorities proceed with the preparation of the judgment to make it enforceable;
– The administrative and judicial authorities proceed with the effective enforcement of the judgment;
– Victims effectively receive the reparations to which they are entitled as soon as possible.

Continue reading “Djugu killings: Significant evolution of Congolese jurisprudence on reparations”

JUSTICE NOW ? Tackling legacies of Europe’s colonial past in the wake of Black Lives Matter

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ASF co-organizes an interdisciplinary conference with the Anthropology Department at MIT, and the European Network Against Racism from the 22nd to the 26th of March 2021. Over the course of five half-days, scholars, activists, and policy makers from Africa, Europe and North America will address issues related to Europe’s colonial heritage and the global demands for justice in the wake of the Black Lives Matter protests. Participation is free but registration is required.

The Black Lives Matter demonstrations in the US in the summer of 2020 following George Floyd’s killing in Minneapolis also sparked mass uprisings against systemic racism across Europe. These protests not only expressed solidarity with the American movement, but also called for European states to examine their own structural, race-based inequities, as well as their colonial pasts in Africa and the legacies thereof. Building on decades of anti-racism activism, Afro-diasporic and other activist groups in Europe have made demands ranging from the removal of statues of colonial figures and the renaming of public spaces, to the return of artifacts  taken from African colonies and held in European museums, and financial reparations for the violences of colonization.

These demands have begun to yield fruits. In Belgium, for instance, a Special Commission tasked with examining Belgium’s colonial past in the Congo, Rwanda, and Burundi was established in July 2020. And, in a major step in the contemporary fight against racism and discrimination in the European Union, the EU’s 2020-25 Action Plan, delivered in September 2020, asserted the link between colonialism and the perpetuation of stereotypes and discrimination in European societies.

As these movements against racism unfold across North America and Europe, what does examining them transversally — across geography, history, and domains of practice — make visible about present opportunities for addressing Europe’s colonial past in Africa and its contemporary legacies? How might actions in different countries and regions amplify one another? What mechanisms are available in and across the arenas of law, policymaking, community organizing, and the arts for obtaining redress for these harms? What lessons can be carried over from historical undertakings?

This symposium, convened by the Department of Anthropology at MIT, in collaboration with Avocats Sans Frontières (ASF), aims to provide a platform for scholars, activists, and policymakers from Europe, North America, and Africa to tackle these questions. Over the course of five half-days of virtual panels and roundtable discussions, experts in areas such as transitional justice, racial justice, colonial and decolonial studies will share their experiences in the development of anti-racist and decolonial movements in and across their respective contexts.

The present moment offers a historic opportunity to both investigate and support anti-racist and decolonial efforts across national contexts and arenas of practice. We warmly invite you to join us in this cross-disciplinary gathering. Please direct inquiries to conveners at justicenowsymposium@gmail.com.

Register for the symposium! You can see the preliminary program here.

Continue reading “JUSTICE NOW ? Tackling legacies of Europe’s colonial past in the wake of Black Lives Matter”

Tunisia : The Truth and Dignity Commission report available in English !

On July 24th 2020, the Truth and Dignity Commission’s (IVD) final report has finally been published in a special issue of the Official Gazette of the Tunisian Republic. This report concludes the Commission’s work, which included the hearings of nearly 62.000 victims, the transfer of 204 cases to specialized criminal chambers in charge of prosecuting the perpetrators of human rights’ violations and economic crimes. Its mandate covered crimes committed between July 1955 and December 2013, date of the promulgation of the organic law n°53-2013 on establishing and organizing transitional justice. In its final report, in addition to establishing historical facts, the IVD drew a list of victims of the revolution entitled to receive reparation, as well as recommendations to the Tunisian state to undertake structural reforms. The report  especially addresses governance and corruption issues with a reparation plan for “victim regions”.

The publication of this document comes one year after the announcement by the IVD of the finalization of its report. In accordance with article 67 of the organic law on transitional justice, the IVD had handed over the report to the President of the Republic, the Head of the Assembly of People’s Representatives (APR), the President of the High Judicial Council and the Head of government on March 27th 2019. Its publication in the official gazette was essential to trigger the follow-up phase, including the development of a government’s action plan and the creation of a specific parliamentary commission to monitor its implementation. The delay to publish the report was in breach of both the organic law and the Constitution, which article 148(9) states that “[t]he State undertakes to apply the transitional justice system in all its domains and according to the deadlines prescribed by the relevant legislation.”

The completion of this first phase was commended by both the IVD and civil society organisations, organised in a coalition since 2016, to ensure that the process was on track and its integrity preserved. Transitional Justice is indeed key in the political transition initiated after the revolution and the fall of Ben Ali’s regime. Over the last five years, the Tunisian civil society has played a decisive role in overcoming the odds faced by the IVD and the overall transitional justice process. The civil society remains committed to contribute to the diffusion of the IVD report, in collaboration with the government and the APR, alongside the strengthening of the specialized criminal chambers to fight against impunity..

The executive summary of the report is also available in English on the IVD website.

It is currently being translated into French and will be made available as soon as it is made public.

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Truth and Reconciliation Commission: Belgium’s opportunity to deal with the injustices born of its colonial past

>> Read the Policy Brief <<

The issue of prejudices born out of colonisation, which has long been relegated to the background of public discourse, has recently gained momentum in Europe; particularly in Belgium.

A proposal for a Truth and Reconciliation Commission is currently being debated by Belgian parliamentarians. Belgium thus has a historic opportunity to confront its colonial past, to address the underlying roots of the contemporary injustices faced by its Afro-descendant population and to establish new relationships with the formerly colonised societies.

However, the ongoing process presents a risk of a partial and one-sided approach to the colonial issue, as well as the temptation to ignore its contemporary consequences by classifying the colonial period as part of history. This is reflected both in the make-up of the Commission, which is not very representative of the issues that it will have to address, and in its mandate, which seems to be limited to symbolic issues. There is also a lack of transparency in the discussions around the truth and reconciliation process, which take place without consultation with civil society, activists and academic experts.

In view of these observations, Avocats Sans Frontières is publishing a policy brief rooted in its practical experience of transitional justice around the world. ASF especially invites the members of the External Relations Commission of the Belgian Parliament to seize this opportunity for Belgium to establish a sound basis for its relations with a large part of its population and the societies of Burundi, Rwanda and the DRC, but also to set an example on the global scale.

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The long walk: Uganda adopts a Transitional Justice Policy

On 17th June 2019, after a decade-long formulation and adoption process, the Government of Uganda finally announced the passing of the National Transitional Justice Policy (NTJP) and officially released it in September. The passing of the Policy is partly fulfilling the Government’s commitments on accountability and reconciliation that it made during the Juba Peace process, which started in 2006, as well as its constitutional obligations. The NTJP addresses the legal and institutional framework for investigations, prosecutions, trials within the formal system, reparations and alternative justice approaches. These matters are clustered into 5 key areas:
  • formal justice,
  • traditional justice,
  • nation building and reconciliation,
  • amnesty
  • and reparations.
The ultimate goal of the NTJP is to pave the way towards achieving peace, stability and social cohesion in Uganda. Why does a Transitional Justice Policy matter? The adoption of the NTJP raises hope in Uganda; especially for the victims who, for the past two decades, have been left with uncertainty on whether, when and how past violations committed against them would be dealt with. The text also provides an overview of how the relevant stakeholders can contribute to its implementation. The Policy specifically notes that whereas the Government will provide an enabling environment for its implementation, it will be implemented under a multi-sectoral, multi-dimensional approach that involves collaboration between various stakeholders. The necessary funding will not only come from the government itself but also from Civil Society Organisations (CSOs), development partners and other non-State actors in the private sector. The long walk to adoption The development of the NTJP originates from a broad consultative, participatory and inclusive process based on studies and research undertaken by the Justice Law and Order Sector (JLOS), as well as consultations with and by CSOs. In the early stages of formulation, the JLOD garnered views and contributions from civil society through its Transitional Justice Working Group initiative. It was later transformed into a Plenary, limited to only Government officials and consequentially eliminating CSOs from the process. In order to keep the momentum of the advocacy, CSOs took initiatives to hold consultative meetings within their networks and provide feedback to JLOS. They advocated for the adoption of the policy through providing platforms for stakeholders, including Members of Parliament through the Greater North Parliamentary Forum, and pushed to fast track its development. What next? In order to achieve its objectives, the NJTP implementation should not be delayed any further and it is important that some of its areas be clarified. First, the Ministry of Internal Affairs, which was entrusted to lead the implementation, should set up an effective coordination structure, able to implement policy directions across sectors and to coordinate the respective contributions of the multiple actors involved. In particular, the coordination structure should organize the participation of civil society organizations, as they have built strong and reliable interface with the policy’ beneficiaries in post-conflict areas, particularly with victims of human rights violations. Second, the policy, albeit a general framework, defaults a considerable part of its implementation modalities on the adoption of complementary legislations. Amongst others, the Policy makes the adoption of a Transitional Justice Act, and legislations on Witness and Victim Participation, Traditional Justice Mechanisms, and comprehensive reparations, preliminary requirements to its own implementation. Given the protracted process that led to its adoption, further bureaucratic delays could only add up to the general sense of fatigue among TJ stakeholders, victims in particular. Finally, the reparation area of the policy remains quite vague. The idea of a reparations fund, mentioned in earlier drafts of the policy, has now been left out from the final text, as the NTJP refers to a ‘consolidated fund’ without further details. The policy is further silent on the question of court-ordered reparations for victims of past atrocities and ignores the concrete avenues for victims to obtain reparations (including but not limited to financial compensation) through court processes. Overlooking the question of reparations would jeopardize the Policy’s objectives. Indeed, victims in Uganda have made it clear that they expect reparations above all other outcomes of their participation in accountability processes. The absence of a perspective on reparations is thus likely to take away victims’ main rationale to participate in criminal proceedings, a key element not only in fostering the fight against impunity but also in enabling criminal justice to fulfil its reconciliation and restorative functions. Continue reading “The long walk: Uganda adopts a Transitional Justice Policy”

Fatigue among the victims Regarding the case of Thomas Kwoyelo

Kampala, 16 May 2019 – In Uganda, ASF has been providing continuous support to communities who have been victim of the crimes for which Kwoyelo is being tried under the International Crimes Division (ICD). Last April, ASF led joint efforts with the Victim’s Counsel, the ICD Registrar and the International Center for Transitional Justice (ICTJ) to inform the victims’ communities of the latest trial developments, while collecting and relaying their views to relevant instances. During the various sessions held within the communities of Obiangic, Abera, Lamgoi, Perecu and Pabbo, many participants deplored their lack of information about the developments in the case. At the same time, a substantial number of them showed a rising loss of interest in the case. As put by one of the participants:

“This meeting is not important to us. We need to hear only results from the trial. This trial has been ongoing for so long. It should end soon so that we can get compensation for the harm we suffered.”

Perceivably, this attitude arises from the lack of direct involvement in the case as well as the protracted trial process which commenced in July 2011. The legal entitlements encapsulated in the various statutes providing for participation of victims are at risk of being rendered meaningless if these concerns are not addressed. The fact that victims keep suffering from the conflict’s aftermath (orphans unattended for, physical and mental impairments, etc.) only adds to the risk of diminishing the worth of legal proceedings to their eyes, as they are no longer seen as likely to  improve the victims’ current condition. While an important complement to truth seeking and justice efforts, interim measures, projects and interventions by both government and non-government actors have either beeninsufficient or ineffective in meeting the victims’ most basic needs. Besides, whereas the call for accountability is resounding in many victims’ communities, there concerns towards reparations are also consistently brought up: whowill receive reparation, who will pay them and what form will these reparations take? Beyond legal entitlements, criminal processes can only achieve restorative and healing functions if perceived as meaningful by victims and their communities.In the instant case, this can be done by:
  1. Ensuring constant and meaningful interaction between the victims and their legal counsels, since the latter ensure their participation in the trial.
  2. Managing victims’ expectations regarding participation in the trial and ensuring that victims understand the scope of their own agency in the justice process before the ICD: this also implies for the ICD and the Government of Uganda to clarify some relevant aspects of victim participation, suchas their right to reparation.
  3. Promote victims’ agency in exercising their participation rights: proposed efforts include physical attendance of the trial to follow court proceedings by victims through representatives.
  4. Better target interim support to victims: pending completion of the trial, there is a need for meaningful, effective and holistic interim efforts to support the victims where it matters the mostto them. ASF continues to advocate for the adoption of the draft Transitional Justice Policy in this regard.
Victim participation-related provisions and the incorporation of international criminal principles into the Ugandan domestic legal systemhave opened up unprecedented possibilities for victims to obtain justice in Uganda. As those are being used for the first time in the Kwoyelo trial, it is crucial that the right precedents are set so that victims’ right to participation can be considered a meaningful part of Transitional Justice efforts in the country.
Pictures © ASF
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A trial for history: Thomas Kwoyelo in Uganda

Kampala, 20 September 2018 – On Monday 24 September, the International Crimes Division (ICD) shall open the main trial in the case of Thomas Kwoyelo. This case is the first ever to be tried before a domestic court in the conflict that opposed the Lord Resistance Army and the Government of Uganda. ASF Country Director for Uganda raises concerns about the opportunity given for victims to participate and the lack of State support to the ICD. Who is Thomas Kwoyelo? What is the case about? Romain Ravet: Thomas Kwoyelo, alias Latoni, is a former LRA commander who surrendered to the Uganda People’s Defense forces in 2009. According to the prosecution, he was enlisted into the Lord’s Resistance Army (LRA) under the command of Joseph Kony and rose through the LRA ranks to become a ‘colonel’. Kwoyelo led a series of attacks, between 1993 and 2005, on the Abera Village and the Pagak and Pablo camps for internally displaced people, in what is today the Amuru District. The attacks resulted in abductions, killings, maiming and the torture of dozens of people, including women and children. In 2011, the Constitutional Court granted Kwoyelo Amnesty but, in 2015, the Supreme Court overruled it and held that he could be tried for acts committed outside “furtherance of the war”. case has been pending before the International Crimes Division, the domestic court with jurisdiction in crimes against humanity and war crimes in Uganda. The case started in 2011. Why is it taking so long? R.R.: Firstly, the issue of amnesty has proven complex to deal with. In 2000, a law was passed (and renewed since) to grant amnesty for all LRA soldiers who gave up their weapons. This law was instrumental in undermining the LRA and bringing about the peace negotiation process. However, the law conflicted with several provisions of the ICC Act and the Uganda constitution as it gave “a blanket” amnesty for all acts committed during the conflict, including crimes against humanity and war crimes. The debate hit a sensitive cord and got caught up in the classic peace versus justice dilemma. It took several years for the Supreme Court to clear the legal aspects and establish an exception to the amnesty law for specific crimes. Secondly, this case is the first ever to be tried under the ICD Rules of Procedure and Evidence, a special set of rules that aim to bring the ICD up to the standards of international courts. As a party to the Rome Statute, the ICD answers to the principle of complementarity, i.e. it has to be capable of dealing with cases of genocide, war crimes and crimes against humanity with the same standards as the International Criminal Court (ICC). The case is taking a long time because it creates unprecedented situations for the ICD. In 2016, the ICD started dealing with the pre-trial, a preliminary phase which seeks to establish “sustainable ground to believe” in the charges brought by the prosecution. This is more difficult than it sounds, because the charges against Kwoyelo are drawn from international law, which makes their application before a domestic court questionable. Likewise, in 2016, the pre-trial judge granted Kwoyelo’s alleged victims the right to participate at all stages of the proceedings. In a country where the criminal system is essentially suspect-centered, this ruling has broken new grounds, for which no playbook exists; the ICD has to innovate and create its own precedents. However, the pre-trial has shown that the ICD lacks the means to fully achieve this enormous task. For instance, the judges that make up the Court are not appointed full time to its work. For instance, the pre-trial judge has to combine her task with her daily management of the Mbale High Court, six hours drive away from Kampala. Additionally, the ICD has to implement new concepts, such as the participation of victims, which requires access to specific technical and material resources. Despite efforts from INGOs and development partners, these resources remain limited.
Community dialogue organised by ASF around the upcoming trial © ASF/R. Ravet
What happens next? R.R.: On 30 August, the ICD confirmed 93 counts of crimes against humanity, war crimes and other alternative crimes against Kwoyelo; his case now goes before a panel of three judges. This is what the ICD calls the “main trial”. The Court now has to hear evidence to determine Kwoyelo’s guilt “beyond reasonable doubts”. As ASF, we are mainly concerned with the effectiveness of the victims’ right to participate in the main trial. This entails two important elements: the victims’ participation in the hearings and the victims’ ability to seek reparations if the accused is convicted. ASF supports the two counsels appointed by the Court to represent the victims. We have filed applications for 98 victims to participate in the proceedings but their approval is still pending. We also support the counsels in reaching out to the victims to update them about the proceedings and collect their expectations. Victims are eager to participate in the case, yet their participation raises questions of material facilitation and security. ASF is also giving technical assistance to the Court and has mobilized civil society to cover some of these needs, but we cannot substitute for the State’s duty to implement the 2016 pre-trial ruling. In terms of expectations, our research shows that victims expect reparations above all. The accountability aspect is secondary for them, as communities remain divided on this case. Many in Northern Uganda remain sympathetic to the LRA cause (which does not mean they approve of their crimes) and even more people are skeptical about the relevance of trying Kwoyelo through the formal justice system; some would rather see him undergo traditional Acholi rituals of reconciliation and punishment. Therefore, the victims’ main interest is to get compensation for the harm they suffered. ASF has published Guidelines on court-ordered reparations that clarify all existing legal options. Options do exist, but if compensation depends on Kwoyelo’s solvency, this aspect will remain virtual. Beyond participation of victims, are there other challenges for the trial? R.R.: Of course! This case is a test-run for the ICD. It will have to demonstrate its ability to live up to international standards in all matters. Notably, the case of the prosecution relies heavily on witness testimony. As the Witness and Victim Protection Bill and the Witness and Victim Protection Unit are not in place, the prosecution is preoccupied by the safety of its witnesses. As for the defense, they also feel the consequences of the lack of the state support to the ICD. Kwoyelo’s counsels find it difficult to access possible witnesses for the defense and struggle with issues of translation and interpretation. All rulings, including the confirmation of charges, are in English, a language Kwoyelo does not understand. There again, civil society is trying to help but this is a State’s duty. What do you recommend going forward? R.R.: The ICD needs the full support of the Uganda government and other stakeholders. The Judiciary is concerned with giving this trial means that ordinary trials do not get. Yet, this trial is special in all aspects. The ICD’s ability to deal with international crimes will directly affect other pending cases, notably the Mukulu case which has huge implications for ongoing regional conflicts. Most importantly, many people in Northern Uganda rely on the trial to help them heal and move forward with their lives. The international community is also watching to see if the ICD will meet the test of complementarity with the ICC. Even if Kwoyelo gets convicted, victims have almost no chance to get compensation unless the State develops a special fund. A cynical rumor is spreading in Northern Uganda that one had better be “a victim of Ongwen than of Kwoyelo”. This is a dark expression of the victims’ frustration but it is also telling of the stakes at play. People affected by the conflict still live with open wounds, figuratively and literally. The narratives around the conflict are plural and complex: victims blame the State nearly as much as the LRA for their dire situation. The heated debates and the hopes of the early 2000s have given way to pessimistic discourses among the affected communities, people despair that the State has not done enough to help them recover from the conflict. The trial is a double-edged sword: its failure could widen the gap between the Northern population and the government but its success could help restore their relationship and bring some closure on the crimes of the past. Meaningful participation of the victims might be the factor that tips the scale in one direction or the other. >> Contact Romain Ravet, ASF’s Country Director for Uganda >> Download ASF’s observation report of the 24 and 25 September 2018 audience >> Download ASF’s brochure about the trial and the work of the ICD
Cover picture © ASF, Gulu, September 2016
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