minutes of icb meeting in kampala on 2 june 2010

8/9/2019 Minutes of ICB Meeting in Kampala on 2 June 2010

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BPICB ‘The ICC and You: An Independent Review’

18:00 – 22:30, 2 June 2010, Africana Hotel, Kampala

With the support of:

The Uganda Law Society

The International Criminal Defence Attorneys Association

The International Bar Association

L’Union Internationale des Avocats

The Centre for Justice for Accused Persons

MINUTES

Chair Raymond Brown - Victims Counsel – ICC

Speakers:

Allison Turner – Council Member ICB

Bruce Kyerere – President Ugandan Law Society

Mohammed – Ben El Mahi Executive Committee Member ICB

George Kegoro – Executive Director, Kenyan Section of the InternationalCommission of Jurists (ICJ)

Michael Scharf– Professor and co-founder of the Public International Law & PolicyGroup

Kenneth Gallant - Professor

Attendees: more than 70

The meeting began at 18:00 with food served to attendees.

The discussion, chaired by Raymond Brown began at 19:00 and continued to22:00. It took the format of questions posed by him to panel members as well asquestions and comments from the attendees. The remarks are noted in detailbelow.

At 22:00 a drinks reception took place at the Africana Hotel.

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RAYMOND BROWN

Welcome to Diedra from the International Refugee Rights Initiative

1 lawyer who works for the ICTR has been arrested and 3 Sudanese lawyersprevented from attending by the government of Sudan (this issue will be dealtwith in a Panel by IRRI tomorrow).

The Review conference is a very important event at the Resort with the presenceof ASP strategic conversation, budgets etc, people have objectives, defencelawyers at the ICC are seen as a necessary nuisance, they don’t follow rules.Hopes for this event; no speeches, free participation of all, questions - a level of candour, truth of experiences and perceptions of court.

Uganda has lively strong civil society what is the perception of the Uganda LawSociety of the ICC with a case before the court ?

Bruce Kyerere

Welcome to Uganda.

Ugandan lawyers haven’t largely been following ICC matters on a big scale, theyregarded the ICC as something foreign until recently, in Uganda we are generallegal practitioners, no sizeable criminal bar, not taken as much interest of the

ICC until recently. We were not very actively involved in the ICC or its processes,until 2 or 3 years ago. Since Uganda began to domesticate the Rome Statute theBar has been approached by some groups from US for discussions on RomeStatute and ICC and we began getting interested, especially the youngerlawyers.

The Law Society does not have a position other than to say it generally supportsthe processes.

The Chief Justice of Uganda established a war crimes division of the High Courtthen the lawyers began waking up to the realization that ICC processes havecaught up with us, now we are ready to get involved and there have beentraining sessions and workshops since then.

Attorney General of Uganda welcomed

Raymond Brown

The ICB represents lawyers for victims and criminal defence lawyers most lawyers on the ICC list do both. Ken Gallant has been there since the beginninghe will discuss perceptions of fair trials at the ICC:

Ken Gallant

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The Court has now been in existence for almost 8 years, no trial has beenbrought to conclusion, we don’t know yet, we know its a struggle to put a goodvigorous defence on the facts and law in these cases, particularly on the facts,the prosecution files often contain hundreds of thousands of pages. At thebeginning there may be only one lawyer for the defence to go through them andmany of the pages have to do with the development of the situation. It is difficultfor prosecutor to go into armed conflict situations and gather evidence, harderfor defence investigators who don’t have the backing of an internationalorganisation and states, they do not have the same monetary and securitysystem and it is difficult if their client is unpopular. The defence advocates havebeen doing an excellent job but they need more cooperation from the stateswhere atrocities have occurred. Therefore we don’t know yet but there are somewho have real questions about the inequality of arms between the prosecutionand the defence. The prosecution has far more resources.

Michael Scharf I think the answer is there are perceptions of unfair trials; every defence counselsays it is harder in international tribunals than national, equality of arms basedon the idea the defence has same access to evidence, money to go into field,procedures to protect them and witnesses, as the prosecution. The ad hocinternational tribunals were created by the SC under Chapter VII where the guiltseemed so great there was a call to ‘ bring them to justice’. There is still a largeprosecution office, no permanent defence or shared files or therefore the abilityto gain the experience the prosecution have, limited resources into places withless security, witness protection and travel issues, it is difficult to defend a clientbefore the international tribunals. Acquittals are rare and difficult.

Raymond

5 situations currently before the ICC, DRC, Congo and CAR referred by heads of states, Dafur by the Security Council, Kenya - OTP sought investigation .

George

The Kenyan situation developed out of post election violence, the results weredisputed, groups of those supporting the dominant groups began large scale

violence in the streets. There was a cry for accountability for those responsibleand a recommendation for a special tribunal as there had been previousviolence in relation to elections and no attempt to bring those responsible toaccountability. Each successive bout was bigger, this was the greatest, if nothingwas done Kenya risked becoming a failed state. The state attempted tried twiceto establish a special tribunal but failed. It was clear the default position was togo to the ICC. Following diplomatic and civil society pressure the ICC announcedit was going to seek authorisation from the PTC that has been granted. Thedominant groups in Kenya, largely civil society, meant a move towardsstabilization of the country following the violence with an idea to base it on the

SCSL. In the end authority was given for the establishment of an investigation, itwas largely well received. For the Kenyan Bar international criminal law is

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typically not an area of practice for private lawyers. A few lawyers did becomespecialized as a result of involvement in the ICTR. This was a very small fractionof Kenyan Bar.

Raymond

The first Registrar of the ICC came to the meeting of list counsel with theattitude that defence counsel ought to be grateful they could come and should work for free, the current Registrar is more reasonable, could you use your function to get more money for defence counsel?

AG

I commend Ugandan Law Society for this arrangement to bring the Ugandan Baron board as far as ICC is concerned. I would like to avoid going into substancemaybe later.

Raymond

Should we be troubled that an important institution regards lawyers as a pain inthe neck, is it surprising?

Prof Nambere

I don’t understand the question, I will put my own...

Convening of Review Conference in our country, big achievement by our AG. Theissue of the ICC is a very sensitive issue in this country. The president of the LawSociety is not correct to say it was not important until domestication. The issuebecame burning and crucial the moment the warrants were issued against Koni,for ordinary people. Challenging the concept of justice that was being advanced,a corner stone of thinking in this country, had to ask elders what do you mean.

They wanted a peace process, we started one, government and rebels discussedending the conflict, that lead to the special division of the High Court whereideas about justice of different kinds according to perceptions of Africans wouldhave room alongside the ICC strategy. It is important whether Uganda hasachieved cultural relevance, and to question whether Nuremberg trials representa good idea - idea to prosecute a few when some of our crimes are morecomplex than Europe, these problems are of a local nature, pretences of spirits.Maybe you should talk more about international criminal justice, would wewelcome it a hundred percent of do we have questions to ask. ICC prosecutorspoke to me for two minutes when new judges being installed, AG also there. Heavoided me, we did research for 2 years on restorative justice, remind theprosecutor today that I handed a full report in Munyonyo he should look at thatreport. We called him to a conference in Nairobi, he refused to come. Theprocess of the ICC as a court is in fact not very effective, the issue of victimsmust be prioritized whether prosecutions or not, that shows there is something

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wrong with the statute and the real issues are not being raised in the ReviewConference, more issues should be raised in relation to the needs of our societiessome states refused to be bound, how do you call that international law?

Raymond

In the context of the court’s evolution thus far its hard not to notice the fivesituations are in Africa has that subject been the subject for lawyers and civilsocieties?

Bruce

I didn’t say the ICC was an issue only after domestication, I meant within thelegal fraternity as a practice in focus, in the public domain, civil society,politicians it was an issue.

Largely this is a point in the political domain at African level, they perceive it astargeting them, its understandable that those in line for ICC are those in powerand in army, its not something that worries the general public so much towarrant their attention.

Civil Society and those especially in North- victims of war have become involvedin seeking redress for suffering. They understand war crimes and other crimes.More those in North than those who have not suffered the culture of war. We arebeginning as a law society to get involved as well. Issues are beginning tooccupy our minds, we are going to get more involved and our position will getcrystallized.

Raymond

Within Kenya were there voices in opposition?

George

There has been at all stages overwhelming support for ICC investigation.

Roland

Coordinator for CICC Cameroon and head of African bar association (one section

of it?)

Uganda is becoming the capital of ICJ in Africa at least for now it is, and it isleading the way in many aspects because of the situation in the North.

In Cameroon some people were saying they weren’t sure the conference wouldbe held because of the AU communication of last year. It is important attorneysaround Africa should be lead by Ugandan example, there is an age difference, if you realize Africa has had some far advance in this stuff, because of wantingimpunity. Uganda can be the example in criminal justice in Africa.

Joshua

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(Lawyer in Uganda interest in IHL and ICL)

Most of the situations in ICC are from Africa, has been a topic of discussion, in agreat sense a lot of the facts speak for themselves, I would like to say that ahuge percentage is in Africa in terms of civil war in Africa. That is why Africa is

main focus, to a great extent as African states we have had a part to play in 3out of 5 actually referred by state parties so cannot say ICC is just interested inAfrica. Most of the conflicts outside Africa portray different forms of conflict.

Terrorism – proposed to be a form of war - I think looking at what is happeningoutside Africa in warfare there are a lot of very noble issues being posed.

Participant

(Advocate High Court Kenya working with victims of Violence in Kenya)

Kenyans generally have accepted and welcomed the ICC because it has come at

a time where government wanted to discredit, many killing and massdisplacement. It was not post election violence it came as early as sept 2007. Idon’t think the claim that ICC targets Africa is valued. Those in power who feelthey might be investigated are making claim ICC is target, Kenyans supportwhole heartedly. They didn’t understand working of ICC they did not understandlow level perpetrators would not be taken to Hague and important for country toestablish trials.

AG

Appreciation to law society for making it possible for us to have this session hereI would also like to thank for the invitation. Professor Nambere welcomed. I grewup reading the writings of his, rigorous analyst from Rwandan, he doesn’t likeimperialism. I used to be law teacher. This meeting is a side meeting to majorreview conference of ICC and there is a bad habit in this country that peoplewait until you die and then say good things at your funeral, now I will say goodthings about myself.

I have participated vigorously to bring this Review Conference to Kampala, firstbid to ASP was in New York 2 years ago, they sent a team to assess what wewere talking about then we went to the Hague. AGs office we have worked hardto bring this conference here, I hope people will judge it as good. I recommendthose who have taken an interest in this session should read the Rome Statuteand the ICC Act assented to by President last week.

Part of cause of unease about ICC not only in Uganda but also in the USA, is thecarry over from Nberg. One of the complaints is victor’s justice.

International Law - who are the subjects? Traditionally the states and individualsnow the Rome Statue says you are the subject, people have to get used to it.

Is Uganda going to vote yes or no to aggression?

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The local press saying go slow. Working Group working on it. USA not signatorybut a friend. It is saying go slow. It is not just a matter of what Uganda is goingto do but the consequences. Aggression is part of primary jurisdiction of UN SC.So why should ICC take on aggression? What will be relationship between ICCand SC it is one of issues.

Delegation is still discussing, hopefully it can be sorted out by consensus.

What is ICJ when we have our own systems , the ICC is a court of last resort.

Kenyans commended for trying to find own solution to own problem.

Aggression – role of US influence. Not for me to say whether Uganda will agree.Should be states.

If you defend victims of these crimes there are moral issues.

Allison

Presumption of innocence. Work by defence often seen as superfluous or toimpede conviction. Before acting as defence counsel for Bagosora 2005 I couldnot have imagined representing accused of international crimes. I learnt the lawwas not being applied evenly, rules not being followed. Only authority andrespect if strong defence. Friday arrest of ICTR defence lawyer arrested.Condemned by ICB, ADAD.

VC law Society of Kenya

Seek clarification of situations in Kenya- disheartening when do you declare astate not willing to prosecute or not ready to deal with that situation? I don’tthink home grown solutions are the answer in Kenya, what should trust fund dofor victims? There has been no justice yet.

Retired police officer

What is the role of Responsibility to Protect?

Power of arrest – does court have power?

Attendee

International HR law and humanitarian law, usually a difference, is there at theICC?

Rome Statute – some countries have not signed – what happens if a citizencommits a crime in a country which is a signatory if the aggressor is not asignatory?

Attendee

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Does the ICC prohibit nuclear weapons?

Kenyan attendee

Awareness of ICC and court and processes we are lucky we have had severaldefence counsel at ICTR and a judge at ICC, level of awareness in Kenya of ICC isvery high.

Attendee

Protection will be a challenge for African countries, victim and witness protection.

Attendee

Law Society of Kenya intervened on behalf of lawyer arrested, have contactedKigali Bar Association.

Professor N

We should have a Resolution at the meeting to protest and condemn the arrestof a defence lawyer in Kigali to condemn this and ask for immediate release

Attendee

What is the appropriate role of the USA in influencing others as a non-state partywho will not be bound by the rules it seeks to make.

Would not the use of ‘manifest’ ensure those seeking to exercise R2P were notprosecuted?

Professor Sharf

The Statute requires a focus on the most serious crimes. Contrary to ICTY whostarted with the lowest level - when they created ICC compromises onpracticalities, funds etc, Court only aims at most serious crimes. Prosecutorconcept of shared complimentarity - does not have to be either or - there can besituations where a country can prosecute those lower down we will take thehighest. Therefore it doesn’t mean others escape justice.

Provision – requires the court make a finding on the issue of whether stateunwilling or unable, court has made findings Sudan not prosecuting, factsensitive

George

Finding pros Kenyan case, detailed account of efforts re Kenyan situation, 2attempts to enact local legislation both failed. Post election violence preventedestablishment of local tribunal which I had the privilege of serving, responses of Kenyan government related to by the pros, the purpose of that was to establishinability by government. Never accepted fair to conclude unwilling, impression

just about to sort itself out. Even in the Kenyan position in this review conf - it is

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an illusion that the Kenyan government is somehow prepared to establishaccountability – there is no particularization.

Ken

What is a crime at the ICC is a violation of IHL.

Attendee

We want to achieve peace and justice, when we talk of complementarity think of other relations in society, after the court cases and so force it would be nice forthe ICC to look at programs trying to transcend into healing, justice will never besustained until relationships repaired.

I was asked by one of the victims do you think that if the events in Rwandaoccurred during the time of this government the government would have invitedthe ICC here, I said no. ICC is only helping government defeating opponents.

Justice must not only be done but seen to be done. Trust fund for victims

Trust fund is a wound with a patch, the heartbeat of victims says if they cannotdress their children it amounts to nothing to take a person to the Hague, theywant justice but livelihood if most important to them.

States should be mandated, with an obligation for an amount of resources. Weshould be ashamed. Government needs to be held accountable for failing toprotect its victims.

Ugandan attendee – Refugee Road project and people for defence of rights

I am shocked with Ugandan elements calling themselves the Africans with theperspective of the ICC, they are ignoring we as victims, facing consequences ondaily basis. Simple example when I was in Congo I was in university here not inschool. Here we are raising voices, my appeal is for the respect to coversuffering can they advocate for real justice for us. I am a refugee, I want to go toCongo. Should look at livelihood for victims, lastly appeal is for ICC we arehuman race, victims are having serious problem when you talk to people about

justice they don’t understand one side justice ICC is promoting in Africa. Don’t

forget issue of Congo, I have heard many ICC officials trying to be satisfied withNorthern Uganda at expense of lives of Congolese.

Professor Sharff

R2P - Would it constitute a ‘manifest’ violation? Just as genocide is worst type of C a H, crime of aggression would be worst type of aggression. Kosovo violated2(4) but justified in circumstances. Violation of international law but not manifestcrime of aggression. NGO representatives should explain that to governments.

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Attendee

The Law Society pointed out it is a new thing in peoples minds, I want to restrictmyself to Uganda, all I can say is we need to put out more information about if this does not happen ICC is being looked at as a court but also as a NGO, as acourt that is going to bring justice, some kind of help for the victims has to comeout, question for African leaders, I am still trying to find out whether the freevote in drafting of Rome Statute, why are they opposed to it. Brotherhood affectsICC, arrest warrant for Bashir, president of Sudan, he was invited to Uganda, theprosecutor asked Uganda to arrest Bashir, Uganda told Sudan to send someoneelse, that is a betrayal of justice and peace. The Rome Statute should protectinternational lawyers as they represent victims.

VICTIM

It is as if some of these people have never existed – they cannot be found, Konietc. Traditional justice they repent, we forgive. The ICC needs to be more awareof the victims on the ground, my wife has died.

African NGO

Organised football match on Sunday for delegates to enhance awareness.Delegates making decisions about victims to be informed about victims. Many

victims died, get the victims supported. Trust fund great work but crazy fordonors to complain they don’t have money in front of victims. A way fordelegates to feel the guilt and make better decisions, let us be more focused onvictims otherwise they will all be dead and no witnesses. Lastly for too long wehave been moving around our difficulties I am ashamed the ICC indictment hasstarted the war. What are the responsible countries doing. ICC needs to get Koniarrested.

Lawyer in Uganda

I have been doing a bit of outreach for the last for years for the international

criminal court, yesterday attended session on outreach. AU – no one is talkingabout the AU, can we agree that civil society issues a statement or peacefuldemonstration? The government should allow us to express our selves freely –the ICC is not discussing warrant of arrest against Bashir. Conspiracy of silence. Iput this to President of ICC.

VICTIM CONGO – (people for peace and defence of rights) I would like to ask theICC to advocate for children of Congo in hands of these perpetrators, what will betheir future? Is it possible for an individual to bring to the courts a criminal likeKoni if that is possible what are the procedures? We will remain voiceless we will

advocate the voice of the voiceless.

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Is the ICC in complicity with the government of Congo (ICC - ) I remember 1994permanent army came to Congo and killed the people. Armed by Rwanda,Burundi and Uganda to fight against Congo, the Congolese were the victims. Isthe ICC just to condemn the weak so that we can put trust in you, do you alsoattack the powerful rather than the weak, massacres continuing in Congo. Wewant guarantees.

Raymond

Serious structural problem in court for victims, process of filling in applicationunderstanding of court process and IHL unfunded. Profoundly affects the way thecourt works.

One of the tensions underlying a court like this is we expect the funding of aninstitution designed to investigate high level people, focus on rebels not even-handed way in dealing with states. Do states have self protecting interest ?

Professor Scharf

I think its a coincidence, the first cases were self referrals, way to sweep problemto ICC once you send situation to ICC they will follow.

Al Bashir, indicted president of country, disproves going after rebels, in Kenya amix. The ICC is trying to follow the evidence and not make political decisions,they want to indict anyone responsible for these kind of crimes.

Ken

Court does not yet respect defence, not yet full equality of defence andprosecution, pros suggests rules, others don’t, funding out of proportion, equalityof arms not yet there, it will be a long struggle, I think it can be done.

Traditional justice - I don’t think that the court as a system has dealt with thepossibility of traditional justice as a way of meeting states’ responsibilities togenerally deal with these problems.

George

African statement of support for ICC, demand that AU declare as SA did thisweek that if Al Bashir steps into this country they will arrest him – to showsupport for ICC, they should say the position hostile to ICC is now vacated. Weare hoping those 2 messages can go out.

KEN

Young lawyers should be encouraged to be interested in this body of law. Applyto be counsel, extraordinarily interesting, new body of law.

ALLISON

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Peter is in hospital after interrogation. Hopeful detention will come to an endvery soon.

MOHAMED

Thanks to all on behalf of President of ICB.

Invitation to all of you to join.

Very big mission in front of us to bring together lawyers for the ICC as inMontreal in 2002. In virtue of article 21 of the Rome Statute the ICB isrepresenting a collective of lawyers in front of the ICC - as you can see eminentprofessors from all corners of the world, the five continents and we have onevoice. The goal of the ICB is to ensure international justice and fairness foundedon three pillars - an independent court, an obligation not only to investigate forthe prosecution but also for the defence,

Only by having a strong defence can the court be fair and credible.

Raymond – thanks to everyone especially Juliette from the Centre for Justice forAccused Persons.

Bruce

Purpose of Rome Statue and ICC was to fight impunity and to bring perpetratorsto justice, likely to see many forces opposed, many interested groups in theequation, when you ask someone who has been the driving force, he suddenly isnot into the ICC, if you ask some of those in Armed Conflicts eg Koni he will notbe in for the ICC and its work, when we hear some people say traditional is goodenough they are either sympathizers or they had a hand in the conflict situation.Victims need to be listened to. Challenges remain. Will the people trust domestic

justice systems to deliver?

Lawyers need to understand it to bring it to people. ICC is for government notagainst.

Arrest of lawyer in Rwanda, as Uganda Law Society we have started engaging inother regional bars for one voice to speak powerfully, East African Law Society -Kenya, Tanzania, Uganda, Burundi, Rwanda.

22:00 Meeting concluded, drinks reception .

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minutes of icb meeting in kampala on 2 june 2010

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