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

LUnion 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 International

Commission of Jurists (ICJ)

Michael Scharf Professor and co-founder of the Public International Law & Policy
Group

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 to

22:00. It took the format of questions posed by him to panel members as well as
questions and comments from the attendees. The remarks are noted in detail
below.

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 lawyers
prevented from attending by the government of Sudan (this issue will be dealt
with in a Panel by IRRI tomorrow).

The Review conference is a very important event at the Resort with the presence
of ASP strategic conversation, budgets etc, people have objectives, defence
lawyers at the ICC are seen as a necessary nuisance, they dont 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 Law
Society of the ICC with a case before the court?

Bruce Kyerere

Welcome to Uganda.

Ugandan lawyers havent largely been following ICC matters on a big scale, they
regarded the ICC as something foreign until recently, in Uganda we are general
legal 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 the
Bar has been approached by some groups from US for discussions on Rome
Statute and ICC and we began getting interested, especially the younger
lawyers.

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

The Chief Justice of Uganda established a war crimes division of the High Court
then the lawyers began waking up to the realization that ICC processes have
caught up with us, now we are ready to get involved and there have been
training 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 beginning
he 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 been
brought to conclusion, we dont know yet, we know its a struggle to put a good
vigorous defence on the facts and law in these cases, particularly on the facts,
the prosecution files often contain hundreds of thousands of pages. At the
beginning there may be only one lawyer for the defence to go through them and
many of the pages have to do with the development of the situation. It is difficult
for prosecutor to go into armed conflict situations and gather evidence, harder
for defence investigators who dont have the backing of an international
organisation and states, they do not have the same monetary and security
system and it is difficult if their client is unpopular. The defence advocates have
been doing an excellent job but they need more cooperation from the states
where atrocities have occurred. Therefore we dont know yet but there are some
who have real questions about the inequality of arms between the prosecution
and the defence. The prosecution has far more resources.

Michael Scharf

I think the answer is there are perceptions of unfair trials; every defence counsel
says it is harder in international tribunals than national, equality of arms based
on 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 hoc
international tribunals were created by the SC under Chapter VII where the guilt
seemed so great there was a call to bring them to justice. There is still a large
prosecution office, no permanent defence or shared files or therefore the ability
to gain the experience the prosecution have, limited resources into places with
less security, witness protection and travel issues, it is difficult to defend a client
before 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 were
disputed, groups of those supporting the dominant groups began large scale
violence in the streets. There was a cry for accountability for those responsible
and a recommendation for a special tribunal as there had been previous
violence in relation to elections and no attempt to bring those responsible to
accountability. Each successive bout was bigger, this was the greatest, if nothing
was done Kenya risked becoming a failed state. The state attempted tried twice
to establish a special tribunal but failed. It was clear the default position was to
go to the ICC. Following diplomatic and civil society pressure the ICC announced
it was going to seek authorisation from the PTC that has been granted. The
dominant groups in Kenya, largely civil society, meant a move towards
stabilization 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, it
was 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 become
specialized as a result of involvement in the ICTR. This was a very small fraction
of Kenyan Bar.

Raymond

The first Registrar of the ICC came to the meeting of list counsel with the
attitude 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 Bar
on board as far as ICC is concerned. I would like to avoid going into substance
maybe later.

Raymond

Should we be troubled that an important institution regards lawyers as a pain in

the neck, is it surprising?

Prof Nambere

I dont understand the question, I will put my own...

Convening of Review Conference in our country, big achievement by our AG. The
issue of the ICC is a very sensitive issue in this country. The president of the Law
Society is not correct to say it was not important until domestication. The issue
became 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 discussed
ending the conflict, that lead to the special division of the High Court where
ideas about justice of different kinds according to perceptions of Africans would
have room alongside the ICC strategy. It is important whether Uganda has
achieved cultural relevance, and to question whether Nuremberg trials represent
a good idea - idea to prosecute a few when some of our crimes are more
complex than Europe, these problems are of a local nature, pretences of spirits.
Maybe you should talk more about international criminal justice, would we
welcome it a hundred percent of do we have questions to ask. ICC prosecutor
spoke to me for two minutes when new judges being installed, AG also there. He
avoided me, we did research for 2 years on restorative justice, remind the
prosecutor today that I handed a full report in Munyonyo he should look at that
report. We called him to a conference in Nairobi, he refused to come. The
process of the ICC as a court is in fact not very effective, the issue of victims
must 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 Review
Conference, more issues should be raised in relation to the needs of our societies
some states refused to be bound, how do you call that international law?

Raymond

In the context of the courts evolution thus far its hard not to notice the five
situations are in Africa has that subject been the subject for lawyers and civil
societies?

Bruce

I didnt say the ICC was an issue only after domestication, I meant within the
legal 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 as
targeting them, its understandable that those in line for ICC are those in power
and in army, its not something that worries the general public so much to
warrant their attention.

Civil Society and those especially in North- victims of war have become involved
in 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 are
beginning as a law society to get involved as well. Issues are beginning to
occupy our minds, we are going to get more involved and our position will get
crystallized.

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 is
leading the way in many aspects because of the situation in the North.

In Cameroon some people were saying they werent sure the conference would
be held because of the AU communication of last year. It is important attorneys
around 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 wanting
impunity. 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 a
great sense a lot of the facts speak for themselves, I would like to say that a
huge 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 3
out of 5 actually referred by state parties so cannot say ICC is just interested in
Africa. 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 happening
outside 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 mass
displacement. It was not post election violence it came as early as sept 2007. I
dont think the claim that ICC targets Africa is valued. Those in power who feel
they might be investigated are making claim ICC is target, Kenyans support
whole heartedly. They didnt understand working of ICC they did not understand
low level perpetrators would not be taken to Hague and important for country to
establish trials.

AG

Appreciation to law society for making it possible for us to have this session here
I would also like to thank for the invitation. Professor Nambere welcomed. I grew
up reading the writings of his, rigorous analyst from Rwandan, he doesnt like
imperialism. I used to be law teacher. This meeting is a side meeting to major
review conference of ICC and there is a bad habit in this country that people
wait until you die and then say good things at your funeral, now I will say good
things about myself.

I have participated vigorously to bring this Review Conference to Kampala, first

bid to ASP was in New York 2 years ago, they sent a team to assess what we
were talking about then we went to the Hague. AGs office we have worked hard
to bring this conference here, I hope people will judge it as good. I recommend
those who have taken an interest in this session should read the Rome Statute
and 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 the
carry over from Nberg. One of the complaints is victors justice.

International Law - who are the subjects? Traditionally the states and individuals
now 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 signatory
but a friend. It is saying go slow. It is not just a matter of what Uganda is going
to 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 ICC
and 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 to

impede conviction. Before acting as defence counsel for Bagosora 2005 I could
not have imagined representing accused of international crimes. I learnt the law
was not being applied evenly, rules not being followed. Only authority and
respect 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 a

state not willing to prosecute or not ready to deal with that situation? I dont
think home grown solutions are the answer in Kenya, what should trust fund do
for 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 the

ICC?

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

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 several
defence counsel at ICTR and a judge at ICC, level of awareness in Kenya of ICC is
very 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 contacted

Kigali Bar Association.

Professor N

We should have a Resolution at the meeting to protest and condemn the arrest
of 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 party
who will not be bound by the rules it seeks to make.

Would not the use of manifest ensure those seeking to exercise R2P were not
prosecuted?

Professor Sharf

The Statute requires a focus on the most serious crimes. Contrary to ICTY who
started with the lowest level - when they created ICC compromises on
practicalities, funds etc, Court only aims at most serious crimes. Prosecutor
concept of shared complimentarity - does not have to be either or - there can be
situations where a country can prosecute those lower down we will take the
highest. Therefore it doesnt mean others escape justice.

Provision requires the court make a finding on the issue of whether state
unwilling or unable, court has made findings Sudan not prosecuting, fact
sensitive

George

Finding pros Kenyan case, detailed account of efforts re Kenyan situation, 2

attempts to enact local legislation both failed. Post election violence prevented
establishment 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 establish
inability 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 establish
accountability 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 for
the ICC to look at programs trying to transcend into healing, justice will never be
sustained until relationships repaired.

I was asked by one of the victims do you think that if the events in Rwanda
occurred during the time of this government the government would have invited
the 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 cannot
dress their children it amounts to nothing to take a person to the Hague, they
want justice but livelihood if most important to them.

States should be mandated, with an obligation for an amount of resources. We

should be ashamed. Government needs to be held accountable for failing to
protect its victims.

Ugandan attendee Refugee Road project and people for defence of

rights

I am shocked with Ugandan elements calling themselves the Africans with the
perspective of the ICC, they are ignoring we as victims, facing consequences on
daily basis. Simple example when I was in Congo I was in university here not in
school. Here we are raising voices, my appeal is for the respect to cover
suffering can they advocate for real justice for us. I am a refugee, I want to go to
Congo. Should look at livelihood for victims, lastly appeal is for ICC we are
human race, victims are having serious problem when you talk to people about
justice they dont understand one side justice ICC is promoting in Africa. Dont
forget issue of Congo, I have heard many ICC officials trying to be satisfied with
Northern 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 violated
2(4) but justified in circumstances. Violation of international law but not manifest
crime 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 restrict
myself 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 a
court that is going to bring justice, some kind of help for the victims has to come
out, question for African leaders, I am still trying to find out whether the free
vote in drafting of Rome Statute, why are they opposed to it. Brotherhood affects
ICC, arrest warrant for Bashir, president of Sudan, he was invited to Uganda, the
prosecutor asked Uganda to arrest Bashir, Uganda told Sudan to send someone
else, that is a betrayal of justice and peace. The Rome Statute should protect
international lawyers as they represent victims.

VICTIM

It is as if some of these people have never existed they cannot be found, Koni
etc. Traditional justice they repent, we forgive. The ICC needs to be more aware
of 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 for
donors to complain they dont have money in front of victims. A way for
delegates to feel the guilt and make better decisions, let us be more focused on
victims otherwise they will all be dead and no witnesses. Lastly for too long we
have been moving around our difficulties I am ashamed the ICC indictment has
started the war. What are the responsible countries doing. ICC needs to get Koni
arrested.

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 talking
about the AU, can we agree that civil society issues a statement or peaceful
demonstration? The government should allow us to express our selves freely
the ICC is not discussing warrant of arrest against Bashir. Conspiracy of silence. I
put this to President of ICC.

VICTIM CONGO (people for peace and defence of rights) I would like to ask the
ICC to advocate for children of Congo in hands of these perpetrators, what will be
their future? Is it possible for an individual to bring to the courts a criminal like
Koni 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 1994
permanent army came to Congo and killed the people. Armed by Rwanda,
Burundi and Uganda to fight against Congo, the Congolese were the victims. Is
the ICC just to condemn the weak so that we can put trust in you, do you also
attack the powerful rather than the weak, massacres continuing in Congo. We
want guarantees.

Raymond

Serious structural problem in court for victims, process of filling in application

understanding of court process and IHL unfunded. Profoundly affects the way the
court works.

One of the tensions underlying a court like this is we expect the funding of an
institution 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 problem
to ICC once you send situation to ICC they will follow.

Al Bashir, indicted president of country, disproves going after rebels, in Kenya a

mix. 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 and
prosecution, pros suggests rules, others dont, funding out of proportion, equality
of arms not yet there, it will be a long struggle, I think it can be done.

Traditional justice - I dont think that the court as a system has dealt with the
possibility of traditional justice as a way of meeting states responsibilities to
generally deal with these problems.

George

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

KEN

Young lawyers should be encouraged to be interested in this body of law. Apply

to 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 end
very 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 in
Montreal in 2002. In virtue of article 21 of the Rome Statute the ICB is
representing a collective of lawyers in front of the ICC - as you can see eminent
professors from all corners of the world, the five continents and we have one
voice. The goal of the ICB is to ensure international justice and fairness founded
on three pillars - an independent court, an obligation not only to investigate for
the 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 for
Accused Persons.

Bruce

Purpose of Rome Statue and ICC was to fight impunity and to bring perpetrators
to justice, likely to see many forces opposed, many interested groups in the
equation, when you ask someone who has been the driving force, he suddenly is
not into the ICC, if you ask some of those in Armed Conflicts eg Koni he will not
be in for the ICC and its work, when we hear some people say traditional is good
enough 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 not

against.

Arrest of lawyer in Rwanda, as Uganda Law Society we have started engaging in

other 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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