Colonel Thomas Kwoyelo, a former commander of the Lord’s Resistance Army (LRA) is currently on trial before the International Crimes Division (ICD) in Uganda. He is charged with committing war crimes and crimes against humanity during a two decades-long war that ravaged northern Uganda. In preparation for the main trial, the ICD has so far held three pre-trial hearings in April, August, and September 2016 respectively.

On September 23, 2016, the ICD issued a landmark ruling on victim participation, allowing victims to participate in the proceedings akin to their right of participation before the International Criminal Court (ICC). Due to its recently adopted Rules of Procedure, victims in proceedings before the ICD are entitled to a wider range of rights than in criminal proceedings before ordinary courts. However, the exact extent of when and how victims can intervene and participate is not regulated in detail. As the case against Kwoyelo is the first case before the ICD, it is now setting the stage for victim participation at the ICD and creating a precedent for future cases. This article will analyse the rulings the ICD pre-trial judge has issued so far and the implications for victim participation in the remaining proceedings.

In the pre-trial hearing held from September 21 – 23, the defense made preliminary objections against the competence of the pre-trial judge to hear the case and the legality of the pre-trial hearing. The pre-trial judge rejected victims’ counsels’ request to make oral submissions on these points in response. In her view, the issues had been raised by the defense and, therefore, victims’ counsels’ views were considered irrelevant.

The pre-trial judge’s reasoning for rejecting victims’ counsels’ request is unsatisfactory.  According to Rule 35(1) of the Rules of Procedure, all organs of the ICD must take into account the best interest, rights, and needs of victims when making decisions. When interventions are denied, it is therefore necessary to analyse whether or not the issue at stake affects victims’ interests, rights, and needs. The mere fact that an issue was raised by the defense should not be sufficient grounds to deny interventions by victims’ counsels. In this particular instance, a ruling issued in accordance with Rule 35(1) might not have led to a different outcome. However, it would have been an important reference for future interventions. It would have also addressed a gap in the Rules of Procedure, which are quite vague about when victim counsels can intervene.

The pre-trial judge in the hearing on September 23 also ruled on a number of points regarding victim participation. Firstly, she decided that the mode of victim participation at trial stage should follow the ICC model, which means that the trial chamber can allow interventions from victims’ counsels at different stages of the trial. It would not limit interventions to the sentencing stage, as practiced in ordinary courts in Uganda.

This ruling is a welcome move towards streamlining victims’ rights at the ICD with those granted by the ICC. Given the similar jurisdiction and parallel prosecution of members of the same rebel group, victims at the ICD should have the same rights as those participating at the ICC. However, it is noteworthy that decisions concerning victim participation can vary between different trial chambers at the ICC. A thorough analysis of past ICC decisions on victim participation should therefore form part of the ICD trial chamber’s assessment of when to allow interventions by victims’ counsels. The ICD’s decision also demonstrates that more consistent rulings by the ICC trial chambers would be important to guide decisions in local international crimes procedures such as in Uganda.

Secondly, the pre-trial judge ruled on the application process for victims and ordered that victims apply formally to the ICD Registry. After having received the victim applications, the Registry is tasked with determining the victim status of each individual applicant. This ruling is important to ensure clarity for all parties concerned as to who will participate in the proceedings and eventually be entitled to reparations. However, it is doubtful whether the Registry currently has the structures and resources to process victim applications, especially if they are filed in large numbers. For example, the ICD Registry to date has not been able to conduct community outreach due to lack of resources. The ICD as an institution thus needs to ensure that the Registry has the capacities to manage this process.

With regard to the determination of victim status, Rule 6(2) of the Rule of Procedure requires the pre-trial judge to consider the status of victims. The order that the Registry is to accept or reject the applications does not necessarily contradict this stipulation because Rule 6(2) only requires a consideration rather than a determination. However, to respect Rule 6(2), the pre-trial judge should pronounce the decisions on the applications during the hearing. For victims, this can serve as an important form of recognition.

Thirdly, there is need for the pre-trial judge to identify the evidentiary threshold that victims have to meet to prove their victim status. This is not regulated in the Rules of Procedure. However, to make the process accessible for victims, they should not be required to prove their victim status beyond reasonable doubt. For example, Pre-Trial Chamber II at the ICC ruled in a decision dated March 9, 2012 regarding the situation in Uganda that for proof of identity a “statement signed by two witnesses attesting to the identity of the victim applicant” can replace an official identification document.

Fourthly, the pre-trial judge ruled that victims’ counsels have the right to produce evidence in addition to the defense and the prosecution. There is need for more clarity on what this ruling entails and to what stages of the proceedings the right to produce evidence applies. According to the Rules of Procedure and the Sentencing Guidelines, at sentencing stage, victims can produce evidence on the harm suffered as a result of the crimes the defendant is accused of. There is no provision, however, on whether this right applies during evidentiary hearings.  It is unclear whether the pre-trial judge’s ruling was intended to respond to this lacuna and allows victims’ counsels to introduce evidence before sentencing. During the last pre-trial hearing the defence lawyers rightly noted that “it was difficult to draw a distinct line between the victims represented by the prosecution and those represented by the victims’ lawyers.”  Therefore, if victims are allowed to produce evidence during evidentiary hearings, it would be necessary to clearly determine for which purposes such evidence can be introduced in order to avoid a potential perception that victims’ counsels are acting as a second prosecutor.

Finally, the prosecution was ordered to disclose the evidence of the case to the victims’ counsels. This is a welcome interpretation of Rule 21, which only requires disclosure to defense. Access to the case file will enable victims’ counsels to identify evidence that might pose a risk to victims when disclosed and to request protective measures, such as redaction, where necessary.

The Kwoyelo trial is in many ways the first of its kind in Uganda. The pre-trial judge’s decision to allow victim participation in line with the rights of victims before the ICC set an important precedent. It is now important that future decisions provide further content and clarity as to the extent of victims’ right to participation, thereby establishing a framework for participation in future ICD proceedings.

Lino Owor Ogora is the Director of the Foundation for Justice and Development Initiatives, an NGO based in Gulu District, Northern Uganda, that works with children, youth, women, and communities to promote justice, development, and economic recovery in Northern Uganda.

Beini Ye is the Post-Conflict Legal Adviser at REDRESS, a human rights organisation supporting victims of torture and other international crimes in seeking justice and reparations.

The opinions expressed above do not necessarily reflect the views of the Open Society Justice Initiative.