18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 2 (3 December 2019)
Name of the Event: The Promise of Complementarity in Uganda: Challenges and Opportunities in Delivering Justice to Victims (Side Event co-hosted by Uganda, the United Kingdom, and Justice Rapid Response (JRR))
Overview by: Signe Wolf Børm, Junior Research Associate PILPG-NL
Main Highlights:
This side event focused on complementarity in Uganda.
The International Crimes Division (ICD) of the High Court of Uganda was set up in 2008 to deal with civil wars and other national conflicts. The High Court tried alleged perpetrators of crimes against humanity. The High Court of Uganda faces challenges, however, such as lack of capacity to deal with sensitive evidence and its admissibility in court.
The main challenge faced in Uganda in its quest to deliver justice is communication with the victims of the conflict. Ms. Solomy Awiidi highlighted that information concerning ongoing cases often is limited.
Summary of the Event:
Judge Joanna Korner QC, former Senior Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY), initiated the meeting by reiterating the importance of the complementarity principle: the ICC is a court of last resort and should therefore only be called upon when a national court is either unable or unwilling to act. She clarified that the ICC does not offer a perfect roadmap on how to deal with specific conflicts, this was rather said to require a local response. Judge Korner went on to state that, from every perspective but in particular from that of the victim, it is preferable if prosecution occurs in the country where crimes are committed. She exemplified this by referring to her experience from the ICTY, stating that difficulties arose when a Yugoslavian witness had to be transported to the Hague to give evidence.
Judge Korner then focused on Uganda, acknowledging that Uganda has taken responsibility, launched investigations, and had acquired the capacity building necessary, particularly concerning sexual and gender-based violence. She highlighted that based on her experience from the ICTY, investigations into war crimes are extremely complex and challenging for the investigators and the court system in any country. She acknowledged that such processes are even more demanding in a country that is still recovering or suffering. Judge Korner, therefore, concluded that Uganda, having taken this task upon itself, has stepped up and has hopefully set an example of how other states can do the same.
Justice Henry Adonyo, head of the International Crimes Division of the High Court of Uganda, then outlined the structure of the International Crimes Division (ICD), a special division of the High Court of Uganda. The ICD was set up in 2008 to deal with civil wars and other national conflicts, and the court tried alleged perpetrators of crimes against humanity. Justice Henry Adonyo in his speech particularly focused on the trials of individuals form the Lord's Resistance Army (LRA). It was noted that witness participation is taking place at the High Court of Uganda but that the matter is difficult as Uganda has no unit for the protection of witnesses and victims. Another issue highlighted concerned the lack of capacities to deal with sensitive evidence and its admissibility in court. Uganda inherited its legal system from the United Kingdom and is therefore of an adversarial nature. This further contributes to the difficulties as victims are denied participation in a trial, and a solution to this matter has yet to be provided.
Hereafter, Ms. Florence Owinji Akello, Assistant Director of public prosecutions in Uganda, went on to discuss the challenge of the “amnesty law”. This act provides amnesty to certain people, for instance to some of the LRA leaders. An issue that has arisen is how the public will be explained why not all of the LRA leaders were given amnesty. A further issue highlighted by Ms. Akello was how the prosecution will determine who will serve as witnesses, and how to allow them to reproduce their story without being suppressed.
Ms. Solomy Awiidi, a transnational justice lawyer working for the Refugee project, highlighted some of the needs of victims and witnesses. Ms. Awiidi provided expert knowledge on communication with victims and victim communities. One of the key issues highlighted was that information concerning ongoing cases often is limited. Ms. Awiidi and her co-workers, however, have experienced that giving victims and victim communities information on a case is received positively. Providing victims with information helps them to manage expectations and affirms that there is a genuine interest in prosecuting. It was further mentioned that victims can be provided with educational information into how a trial works, why and how the perpetrator can afford legal protection, and why witness statements are important for trial. Ms. Awiidi underlined the importance of educating victims on how the procedure of testifying in court works and how contributions can be made. Another issue mentioned concerned the geographical representation of areas affected within one trial. It was described that a large area affected by crimes was covered in the trial and this led to the question of how the prosecutor can convince that voices of each part of the country will be heard and all concerns will be addressed. A final issue mentioned by Ms. Awiidi was the court’s lack of jurisdiction to prosecute crimes that were committed before 2010.
Lastly, Ms. Serena Gates, a UK barrister and Justice Rapid Response (JRR) expert, highlighted the necessity to look at the challenges of the case holistically. She pointed out that restrictions on the safety of both prosecutors and witnesses constitute a real issue and that the resources to deal with these issues are lacking. On a more practical level, it was stated that the systems used for filing and documenting the process is based on a paper system.
It was concluded that it is necessary for lawyers to be able to adapt to the situations in which they find themselves to achieve the best results and to obtain the evidence necessary for trial. Sexual and gender-based violence, for instance, is stigmatized and when it is talked about, it is often done through the use of colloquial phrases which allows a victim to only indirectly state that the occurrence took place. A solution to this particular issue is the use of role-play exercises and mock trials. This can make lawyers more comfortable with having these conversations, which in turn will make it more natural for the victims to talk about what happened to them.