Particular Challenges for Uganda in Conducting National Trials for Serious Crimes

Introduction

Peace talks between the government of Uganda and the Lord’s Resistance Army (LRA) to resolve the 20-year conflict in northern Uganda have been ongoing in Juba, southern Sudan, for over a year. On June 29, 2007, the parties signed an agreement on accountability and reconciliation that articulates principles to address past crimes and notably envisions national trials for abuses that constitute international crimes. Since August the Ugandan government has been consulting with civil society and affected communities on the June 29 agreement.

Human Rights Watch believes that prosecutions for the most serious crimes committed by both sides during the conflict, together with broader accountability measures, are crucial to ensure justice and a durable peace for northern Uganda. In this regard, Human Rights Watch strongly supports the arrest warrants issued in 2005 by the International Criminal Court (ICC) for four LRA leaders on charges of war crimes and crimes against humanity. These cases are a major opportunity to see that justice is done for some of the atrocities committed.

We understand that members of the Ugandan legal community are in the process of considering what steps would be needed for Uganda to conduct national trials for serious crimes under international law, including ICC cases against LRA leaders. We also understand that consultations will be held with the Ugandan justice sector in Kampala on September 26 and 27 to develop proposals to implement the June 29 agreement, including with respect to national trials.

The ICC’s Rome Statute recognizes the important role of national trials for serious crimes — as proposed in the June 29 agreement — where possible. Nevertheless, as detailed in two Human Rights Watch memoranda issued earlier this year,¹ any national alternative to ICC trials and any other domestic trial for serious crimes should satisfy substantial benchmarks. Consistent with the Rome Statute, other international standards, and international and domestic practice, the benchmarks comprise:

credible, impartial, and independent investigation and prosecution;

rigorous adherence in principle and in practice to international fair trial standards; and

penalties that are appropriate and reflect the gravity of the crime, that is, a term of imprisonment that reflects the seriousness of the offense.²

In August 2007 Human Rights Watch held a number of discussions in Kampala on Ugandan law and practice that are relevant to these benchmarks. This memorandum draws on those discussions to detail several issues that we believe pose particular challenges to conducting domestic serious crimes trials in Uganda. They are the adequacy of substantive crimes under Ugandan law; risk of torture of suspects in custody and the death penalty; the scope and adequacy of disclosure of prosecutorial material to the defense; potential interference by the executive with the judiciary and protecting the latter’s independence and impartiality; and investigative and prosecutorial capacity. The memorandum also discusses witness protection and support, victims’ participation and reparations, security, and outreach and communications. The experience of international and hybrid national-international criminal tribunals has shown the significance of these to ensuring fair and effective trials for serious crimes.

It will be essential that any proposals for national trials to implement the June 29 agreement adequately address the above benchmarks and additional areas detailed in this memorandum.³ The international community, including key donors, United Nations representatives, and the mediation team, should insist on nothing less. In addition to ensuring that justice is done, fair and effective investigations and prosecutions are an important way to promote respect for rule of law and can be part of establishing an indisputable historical record of past crimes committed in northern Uganda.

With regard to the ICC warrants, it is the ICC judges alone who ultimately will determine whether a national trial is a sufficient alternative to its cases.⁴ Moreover, if a national trial subsequently proves inadequate, the ICC statute suggests that the case can be brought back to the ICC for trial.⁵

A note on trials for crimes by government forces

Human Rights Watch and other organizations have documented serious crimes committed during the conflict in northern Uganda by both the LRA and, to a lesser extent, government forces, the Ugandan Peoples’ Defence Forces (UPDF).⁶ Human Rights Watch is strongly committed to prosecutions of the most serious of these perpetrated by both sides.

The June 29 agreement suggests that state and non-state actors accused of serious crimes may, however, be subject to different justice processes: state actors will be subject to “existing criminal justice processes,” while non-state actors may be subjected to “special justice processes” under the agreement.⁷ It is unclear what is referred to by “special justice processes,” although they could be a special chamber or division to hold national trials, and/or broader accountability measures.

Regarding application of existing criminal justice procedures to state actors, Human Rights Watch is concerned that hitherto the state response to allegations of human rights violations by UPDF soldiers has been inadequate. Human Rights Watch research in 2007 on law enforcement operations in the Karamoja region of Uganda showed a failure to bring soldiers to account in a systematic and transparent manner and to provide compensation to victims.⁸ Research in 2005 on accountability efforts to address allegations of human rights violations by the UPDF in the areas affected by the LRA conflict pointed to a range of inadequacies.⁹ These included lack of investigation and prosecution, or in some cases lack of any follow up to alleged abuses. Fear of and intimidation by UPDF personnel also hindered people in coming forward with complaints, while the fact that courts martial tend to sit within barracks undermined their accessibility to the public.¹⁰ Other problems with the courts martial system include that soldiers found guilty before them have been executed.¹¹

The same standards should apply to prosecutions for serious crimes regardless of whether the alleged perpetrator is associated with the UPDF or the LRA. Any existing processes that may be employed should thus be reviewed for their compatibility with the benchmarks for national trials listed above and the standards detailed in this memorandum and should be reformed as necessary.¹²

Adequacy of substantive crimes under Uganda law

War crimes and crimes against humanity are among the most serious crimes under international law, and charges for such crimes should reflect their full scope.¹³ However, war crimes and crimes against humanity are not codified as such in Ugandan domestic law.¹⁴

Some members of the Ugandan legal community have suggested that such crimes cannot now be enacted to apply to the period of the conflict, as doing so would violate the principle of non-retroactivity.¹⁵ They indicated that it may be necessary instead to draw from existing law to approximate as closely as possible war crimes and crimes against humanity (such as, for example, multiple murders).¹⁶ However, it is questionable whether utilizing existing Ugandan law would capture the nature of crimes committed. For example, crimes against humanity go beyond multiple criminal acts such as murder, torture, and enslavement. Crimes against humanity are committed when such offenses are “part of a widespread or systematic attack directed against any civilian population.”¹⁷ Domestic law may lack even an approximation of some international crimes. Utilizing existing law, furthermore, may not satisfy the ICC’s requirements for national trials.¹⁸

Prosecuting war crimes and crimes against humanity for conduct prior to their codification as crimes should not, however, violate the principle of non-retroactivity. This is because these crimes were already established as crimes under international law regardless of the moment when it became possible to prosecute them under the jurisdiction of domestic courts as a result, for example, of their domestic codification. As Article 15 of the International Covenant of Civil and Political Rights (ICCPR), to which Uganda is a state party, states:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.… [However, n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.¹⁹

The European Convention on Human Rights has the exact same provision, and the European Court of Human Rights has repeatedly held that it does not prevent the prosecution of serious crimes under international law even if at the time they were committed they were not codified under domestic law.²⁰

Consistent with this approach, international and hybrid criminal tribunals have allowed prosecution of war crimes and crimes against humanity for conduct prior to the creation of the applicable statutes, and several domestic jurisdictions have done the same.²¹

On the basis of treaty law, such as the Geneva Conventions, and customary international law, war crimes and crimes against humanity were prohibited and punishable conduct at the time the conflict in northern Uganda began in 1986.²² Human Rights Watch believes that domestic incorporation of war crimes and crimes against humanity to cover crimes during the conflict would be necessary and not at variance with the principle of non-retroactivity.

Risk of torture of suspects in custody, and the death penalty

A fundamental right under international law is that suspects are protected from torture and cruel, inhuman or degrading treatment.²³Consistent with this, Uganda’s constitution prohibits torture.²⁴ Nevertheless, Human Rights Watch and other organizations have documented torture of suspects in detention in Uganda.²⁵ In 2006 the Ugandan government also indicated that “evidence obtained through information obtained by torture is admissible [under Ugandan law], and the police have been known to exploit this loophole.”²⁶

The likely high-profile nature and international scrutiny of any domestic serious crimes trials could be a disincentive to torture of suspects in detention. At the same time, such trials are sensitive and likely to evoke strong emotions, underscoring the need for robust measures to prevent abusive practices in their investigation and prosecution.

The death penalty should also not be permitted. The Ugandan Penal Code Act allows for the death penalty for certain offenses. International and hybrid criminal tribunals do not permit the death penalty. Human Rights Watch opposes the death penalty in all circumstances as an inherently cruel and inhuman punishment.

Scope and adequacy of disclosure of prosecutorial material to the defense

The right to adequate time and facilities for the defense to prepare its case is a core fair trial right under international law.²⁷ A key aspect of such preparation is the opportunity for the defense to review in advance of trial material that forms the prosecution’s case, such as names of witnesses it intends to call.²⁸ This process is generally referred to as “disclosure” and is particularly important to effective cross-examination as it allows counsel time to identify and research areas for questioning. Cross-examination is a vital way in which the defense can impact the outcome of a case by revealing inconsistencies in testimony or otherwise discrediting a witness.

To the extent a practice of disclosure by the prosecution to the defense in advance of trial exists in Uganda, it is minimal. Human Rights Watch researchers were told that the defense generally has access only to a case synopsis as opposed to names of witnesses, witness statements, or other relevant evidence.²⁹ We were also told of situations in high-profile cases in which lawyers did not receive any information concerning prosecution witnesses in advance of trial; lawyers faced having to conduct cross-examination after learning a witness’s identity only the previous day.³⁰

In order to be meaningful, disclosure would need to be made substantially more comprehensive.³¹ Consistent with the practice of international and hybrid tribunals, disclosure should include the names of prosecution witnesses; copies of prior statements by such witnesses; and any exculpatory evidence.³² Disclosure should also take place well in advance of trial. Disclosure is required no less than 60 days prior to trial at some tribunals and otherwise within a time limit set by the relevant chamber.³³

Potential interference by the executive with the judiciary and protecting their independence and impartiality

An impartial and independent bench is another core fair trial right under international law.³⁴ Impartiality and independence are also indicative of a state’s willingness to prosecute national cases as defined under the Rome Statute’s requirements for national trials.³⁵

The high quality of Ugandan judges and their good record in handling sensitive cases is widely acknowledged, as noted in our May 2007 “Benchmarks Memorandum” and reinforced during our interviews in Kampala in August 2007. Nevertheless, attempted intimidation by the executive, including in high-profile trials, has been a problem.³⁶ A recent analysis by the International Bar Association found that the government has inappropriately criticized court decisions, intimidated individual members of the judiciary, and defied court orders.³⁷

The executive must cease efforts to interfere with the Ugandan judiciary, as any trial for serious crimes in which interference occurred would be fundamentally flawed. International and hybrid tribunals have taken various steps to promote their impartiality and independence and the appearance thereof, which should be considered for any Ugandan national serious crimes trials.³⁸ For example, the use of panels of judges to try cases is standard practice in such tribunals. This helps to avoid concerns that could be raised with respect to an individual judge and to make it more difficult for any external actor to influence the bench. Some courts have also appointed benches with a mixture of international and domestic judges and with a majority of international judges on each panel. Positive examples of such mixed chambers that could be drawn from include the Special Court for Sierra Leone and Bosnia’s War Crimes Chamber.³⁹

Investigative and prosecutorial capacity

International standards require prompt, thorough, independent, and impartial investigation and prosecution, and the Rome Statute requires that states be not only willing, but able to investigate and prosecute cases.⁴⁰ At the same time, investigation and prosecution of serious crimes can be extremely complex. For example, demonstrating the systematic and widespread nature of crimes and the responsibility of perpetrators—who may have been leaders far removed from crimes scenes—can pose tough challenges.

The investigative and prosecutorial capacity of Uganda’s justice sector has been described as weak.⁴¹ The government’s practice of hiring private lawyers to prosecute more sensitive and high-profile cases was cited to us (and in the Ugandan media) as evidence of this fact.⁴² Inadequate resources and low remuneration are considered contributing factors to lack of capacity.⁴³ It would need to be strengthened to enable effective investigation and prosecution of serious crimes.

Witness protection and support

Given the sensitive nature of trials for war crimes or crimes against humanity, witnesses in such trials — who may also be direct victims — face serious risks. They may confront direct threats to the safety of their families and themselves before or after testifying in court. They may also be in need of ongoing psychosocial support in the aftermath of testifying about deeply traumatic events. In circumstances where a conflict is ongoing or has only recently ended, the risks to all witnesses are particularly acute.

Uganda has domestic laws that impose sanctions for interfering with witnesses⁴⁴ and has some informal protection practices, such as keeping witnesses in guarded locations during high-profile cases.⁴⁵ However, Uganda has no comprehensive witness protection program. Moreover, we were told that witnesses in high-profile cases have raised concerns over intimidation and that there have been instances of witnesses disappearing.⁴⁶

The June 29 agreement rightly notes, “Measures shall be taken to ensure the safety and privacy of witnesses. Witness shall be protected from intimidation or persecution. Child witnesses and victims of sexual crimes shall be given particular protection.”⁴⁷ Consistent with the practice of international and hybrid tribunals, all witnesses, both victim and non-victim, would need to receive pre-trial and post-trial risk assessments; in-court protective measures based on the risk assessment; safe transportation and accommodation during court attendance; post-trial follow up and threat monitoring; and access to counseling. There should also be relocation arrangements, possibly including international relocation, for the most at-risk witnesses.⁴⁸

Another issue relates to who is assigned to provide protection to witnesses. It was suggested people in the north lack faith in the Ugandan government’s ability to protect them due to their experiences during the conflict.⁴⁹ Witness protection should account for these conditions in order to create an environment where witnesses do not fear coming forward, perhaps through having protection staff that are not associated with the military or the police.

Victims’ participation and reparations

The June 29 agreement indicates that “[t]he Government shall promote the effective and meaningful participation of victims in accountability and reconciliation proceedings” and that reparations may be ordered, which may include rehabilitation, restitution, and compensation.⁵⁰ These provisions are positive and could help to bridge the gaps that may exist between victims and the criminal justice processes. In applying them, lessons may be drawn from the ICC, which gives a central role to victims unprecedented at an international justice institution: the Rome Statute and ICC rules of procedure and evidence provide victims with rights to participate in proceedings, separate from serving as a witness,⁵¹ and with opportunities to receive reparations.⁵²

Security

The highly charged nature of trials for serious crimes underscores the importance of adequate security. This includes security at the facilities where proceedings are being conducted; for staff working on the proceedings; for accused and defense counsel; and for witnesses (as discussed above). The devastating consequences of failure to adequately address security can be seen from the example of the Iraqi High Tribunal (IHT): several defense attorneys representing accused at the IHT were assassinated, making it difficult to ensure an adequate defense.⁵³

Due to their sensitivity, trials against either members of the LRA or UPDF can be expected to create major security challenges. Effective trials would need appropriate procedures to ensure security based on a thorough assessment of security risks.

Outreach and communications

The experience of international and hybrid criminal tribunals strongly demonstrates the need for communities most affected by the crimes to have adequate information about prosecutions.⁵⁴ It is in this way that prosecutions—which will undoubtedly target a relatively small number of alleged perpetrators—can have maximum resonance and relevance. Indeed, the lack of comprehensive outreach and communications by the ICC in Uganda has contributed to ongoing misunderstanding of and frustration with the court’s work, although the court has enhanced its programming in these areas over time.⁵⁵

We understand that spokespersons currently provide information concerning developments in domestic criminal proceedings to the media. A robust and targeted information dissemination campaign would need to reach out further to civil society and affected communities in the north. In this regard, the Special Court for Sierra Leone’s outreach and communications programs provide a useful model.⁵⁶ Their efforts include dissemination of video and audio summaries of proceedings in addition to town hall meetings across Sierra Leone about the court.

Funding

Of course resources would be required to fully address many of the above issues. We note that the judicial system in Uganda already suffers from a significant backlog of cases due to inadequate resources. Additional funding would be needed both for national trials of serious crimes to be conducted effectively and to avoid such trials negatively impacting the overall functioning of Uganda’s justice sector.