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October 20, 2010

The Ugandan International Criminal Court Act 2010: What does it mean for victims?

By Luke Moffett

In 2003, Uganda became the first country to refer a case to the International Criminal Court (ICC) for the crimes committed by the Lord’s Resistance Army (LRA) in Northern Uganda since 2002. In 2005 the ICC announced the arrest warrants of five leaders of the LRA, including the LRA leader Joseph Kony. Despite having signed the Rome Statute in 1999 and ratified the Statute in June 2002, the inclusion of the Rome Statute into Ugandan law only came about in June 2010 with the International Criminal Court Act (ICC Act 2010).[1]

The ICC Act 2010 allows Ugandan courts to try crimes against humanity, war crimes and genocide defined under the Rome Statute for the first time. However, it only provides two main provisions for victims in Ugandan courts- protection before the courts as a witness[2] and the enforcement of orders for victim reparation made by the ICC.[3] These provisions in themselves however do not offer victims much access to redress before Ugandan courts either through participation or reparations.

This means that the ICC Act 2010 does not specifically enable victims to participate in criminal proceedings or make applications for reparations in Uganda cases as they could otherwise do in cases heard before the International Criminal Court. The ICC Act 2010 also does not specifically provide a specialised unit for victims and witnesses, such as the Victim and Witness Unit within the ICC, that can support victims’ needs such as physical or psychosocial protection or material support. There is also no mention of participation or reparations for victims through the Ugandan courts or access to a victims’ trust fund.[4] These issues amongst others were raised by the Ugandan Victims Foundation in 2009 before the ICC Act’s adoption but remain unaddressed.[5] For victims wanting to access justice locally in Uganda though the ICC Act 2010 is not the end of the road.

The publication of the ICC Act 2010 is timely in view of the establishment of the War Crimes  Division of the Ugandan High Court set up in 2009 as a result of the 2007 Juba Peace Agreement between the Ugandan government and the Lord’s Resistance Army.[6] While the Act gives the War Crimes Division jurisdiction for genocide, war crimes, and crimes against humanity, issues relating to its non retroactive applicability will need to be addressed and an alternative legal basis might need to be found in order to try   LRA crimes of the past. There is also a lack of clarity as to what would happen, should an individual sought by the War Crimes division also apply for amnesty before the Amnesty Commission. Nonetheless, the War Crimes Division is pressing ahead, with discussions under way as to the legal basis for the crimes.  Victims’ role though in the War Crimes Division has yet to be elaborated, and could provide an important way for them to physically access trials.

Despite the lack of victim provisions within the Ugandan ICC Act 2010, victims could have a role in the War Crimes Division under the Juba Agreement on Accountability which provides a participatory role for victims in Clause 8. Clause 8 imposes an obligation on the Ugandan government to allow victims to participate in the War Crimes Division cases despite their absence in the ICC Act 2010.[7] Moreover, the Juba Agreement on Accountability refers to reparations being paid to victims as part of any accountability proceedings such as the War Crimes Division.[8]

On the face of the Ugandan ICC Act 2010, victim provisions are scarce but this does not necessarily mean that victims have no role to play in Ugandan prosecutions for international crimes. For victims groups, legal practitioners and judges in the War Crimes Division, the real work needs to begin with finding a way to make victim participation and reparations work within the War Crimes Division so that victims can start to access justice locally. The ICC Act 2010 lays the foundations for prosecuting international crimes.

[1] The International Criminal Court Act 2010, the Uganda Gazette No 39 Volume CIII dated 25^th June 2010, assented on 25^th May 2010.

[2] Section 46 and 58

[3] Section 64

[4] See Article 75 and 79 of the Rome Statute; and the Uganda Victims Foundation’s Statement on the International Crimes Bill of 2009, 4^th November 2009

[5] Uganda Victims Foundation’s Statement on the International Crimes Bill of 2009, 4^th November 2009

[6] See the Agreement on Accountability and Reconciliation,  29^th June 2007 (“Juba Agreement on Accountability) clause 4 and 6

[7] ‘[S]hall promote the effective and meaningful participation of victims in accountability...proceedings...Victims shall be informed of the processes and any decision affecting their interests....In the implementation of accountability and reconciliation mechanisms, the dignity, privacy and security of victims shall be respected and protected.’ Clause 8 of the Juba Agreement on Accountability 2007

[8] Clause 9 on reparations

Comments

Thanks redress for the efforts in advocating for victims rights and participation, however it is noticiable that the uganda CSO have been at the fore front on the issues of victims, my concern is that the victims are not being involved in the advocacy as a strategy for them to demand participation before the court and reparations. one organisation the Justice and reconciliation project has done worked tremendously to ensure that they document experiences of victims which can be adduced in court. Victims need to be informed of the existance of this court when how it works to enable them participate or they will technically be left out. public litigation suites to redress crimes commited against communities is yet impossible there fore victims should be mobilized and sensitized in order for them to participate. uganda is going into the polls by feb this year but none of the presidential candidates has included reparation on their agenda. with what has ben sited in your paper it is possible that the victims of northern Uganda will be forgotten and the war crimes division of the high court will not meet the expectations of CSO and the Victims.IT is injustice to see victims die with out seeing justice.

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