The International Criminal Court (ICC) is prepared to charge Joseph Kony in case he has been arrested. Intelligence reports and the information the government is getting from satellites show that the LRA leader Joseph Kony is about to be arrested. As a consequence, Joseph Kony’s lawyers in Kampala have gone to Hague and settle with ICC a few issues.

A source tells us that Kony’s lawyer Caleb Alaka went to Hague on March 30^th on sponsorship of an International human rights group/ organisation and Samuel Muyizzi Mulindwa leaves the country on 2^nd April.

Sources tell us that Muyizzi and Caleb Alaka’s trip to Hague is intended to make them prepared to plead for LRA leader in case is truly arrested.

The Ugandan top criminal lawyers also have gone to Hague for a pre trial chamber of the ICC and they are expected to discuss several procedural matters and cases before this Court from the great lakes region and most especially matters touching the indictments of LRA top commanders.

They will also discuss the progress of the International Crimes Division (ICD) of the high court of Uganda, a special division created to try International related crimes and crimes against humanity.

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Five top city criminal lawyers in Kampala have left the country to the International Criminal Court (ICC) on sponsorship of an International human rights group/ organisation.

Caleb Alaka (30^th March) and Samuel Muyizzi Mulindwa (2^nd April) are among those who are set to leave the country to the to the pre trial chamber of the ICC.

When contacted, Caleb Alaka said it is a study trip at the pre trial chamber of the ICC and they are expected to discuss several procedural matters and cases before this Court from the great lakers region and most probably some matters touching the indictments of LRA top commanders.

They will also discuss about the progress of the International Crimes Division (ICD) of the high court of Uganda, a special division created to try International related crimes and crimes against humanity.

The case against Thomas Kwoyelo is expected to dominate the discussion about the ICD performance. It is a case which has put to test the judicial system of Uganda as kwoyelo who was released by the Constitutional court remains remanded at Luzira without a valid remand warrant.

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HOW: In the case against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, judges confirmed charges of crimes against humanity against Ruto and Sang, but declined to confirm those against Kosgey. In the case against Francis Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, judges also confirmed charges of crimes against humanity against Muthaura and Kenyatta, but declined to confirm those against Ali. The decisions were taken by majority of the Chamber, with Judge Hans-Peter Kaul dissenting.

The cases will therefore move to trial against William Samoei Ruto, Joshua Arap Sang, Francis Muthaura and Uhuru Muigai Kenyatta at this stage. Both the prosecution and the defence have the right to request the Chamber to appeal today’s decisions. Today’s decision does not preclude the Prosecutor from re-requesting the confirmation of charges against Kosgey and Ali if supported by additional evidence.

WHO: In the first case, PTC II found that there was sufficient evidence to try William Samoei Ruto (a suspended government minister and deputy party leader of the Orange Democratic Movement (ODM)) pursuant to article 25(3)(a) of the Rome Statute, in the commission of the crimes against humanity of murder (article 7(l)(a)), forcible transfer of population (article 7(l)(d)) and persecution (article 7(l)(h)) during post-election violence in Kenya in 2007-2008.

PTC II also found that there was sufficient evidence to try Sang (head of operations at a radio station in Nairobi ) for having ‘otherwise contributed’ (within the meaning of article 25(3)(d) of the Rome Statute) to the commission of the abovementioned crimes.

However the judges established that they lacked sufficient evidence to try Henry Kiprono Kosgey (a current Member of Parliament and chairman of the ODM) as indirect co-perpetrator of the abovementioned crimes.

In the second case, PTC II found that there was sufficient evidence to try Francis Muthaura (head of the civil service and secretary to the cabinet) and Uhuru Muigai Kenyatta (deputy prime minister and minister for finance) as indirect co-perpetrators pursuant to article 25(3)(a) of the Rome Statute, in the commission of the crimes against humanity of murder(article 7(l)(a)), forcible transfer of population(article 7(l)(d)), rape (article 7(l)(g)), persecution (article 7(l)(h)) and other inhumane acts (article 7(l)(k)) during the post-election violence in Kenya in 2007-2008.

Judges however established that they lacked sufficient evidence to try Mohammed Hussein Ali (chief executive of the postal corporation) for having ‘otherwise contributed’ (within the meaning of article 25(3)(d) of the Rome Statute) to the commission of the abovementioned crimes.

NEXT STEPS: William Samoei Ruto, Joshua Arap Sang, Francis Muthaura and Uhuru Muigai Kenyatta will face trial before the ICC in due course. Before the start of the trials, a number of preparatory hearings will be held to deal with issues such as the disclosure of evidence to the defense, participation of victims or the language to be used during the trials.

327 and 233 victims have been admitted to participate in the first and second cases respectively, through their legal representatives and will participate in the trial. Additional victims have a right to apply for participation in the trial.

COMMENTS:

“ICJ Kenya supports the decisions confirming the charges against Ruto, Sang, Muthaura and Kenyatta as an important step forward in ensuring justice for the victims of the terrible crimes of the post-election violence of 2007/8,” said George Kegoro, executive director of the Kenya chapter of the International Commission of Jurists. “We underline the judicial, not political, nature of the ICC process which seeks to respond on behalf of the 1200 killed, 900 sexually assaulted and the thousands still in camps as a result of the post-election violence, and urge all Kenyans to be confident in it and let justice run its course.”

“Now that the charges are confirmed ICJ Kenya calls upon the President and Prime Minister to fulfill their obligations to uphold the rule of law and suspend from office Deputy Prime Minister Kenyatta and Head of Civil Service Muthaura in line with chapter 6 of the Kenyan constitution and also call upon the suspects to vacate office of their own volition in line with their statements of 15 December 2010 to cooperate with the ICC,” Kegoro continued. “The suspects now need to present themselves voluntarily to the ICC and the Kenyan government must continue to cooperate with the ICC as per public statements made in this respect, article 86 of the Rome Statute, and Kenya’s International Crimes Act.”

“FIDA Kenya welcomes today’s decision to confirm charges against some of the suspects in these cases, in particular the confirmation of the rape charges against Kenyatta and Muthaura,” said Grace Maingi-Kimani, executive director of the Federation of Women Lawyers Kenya (FIDA Kenya ). “However we also underline the urgent need for the Office of the Prosecutor to bring forward charges for the rape cases in Kibera and Nyanza,” she added. “We further call for a local prosecutorial process to deal with the middle- and lower-level perpetrators of crimes committed during the post-election violence in Kenya .”

“Today’s decision to send these four suspects to trial represents a major step towards justice for victims of grave crimes which brought chaos to Kenya in 2007/2008,” said William R. Pace, Convenor of the Coalition for the International Criminal Court. “The decision declining to confirm charges against Kosgey and Ali does not refute that terrible crimes occurred during the post-election violence, but that the evidence assigning individual responsibility to the defendants did not convince the ICC’s independent judges at this time,” he said. “We now call for increased cooperation with the Court, including through the continued voluntary appearances of the suspects at the forthcoming trial proceedings.”

BACKGROUND: The ICC prosecutor’s investigation into crimes against humanity allegedly committed in Kenya during the 2007-2008 post-election violence was authorized by judges of PTC II on 31 March 2010, following a request by the ICC prosecutor on 26 November 2009. It was the first time the prosecutor initiated an investigation of his own accord (“propio motu”) without the need for a referral from states parties to the Rome Statute or by the United Nations Security Council. On 8 March 2011, PTC II issued summonses to appear for Ruto, Kosgey and Sang, as well as for Muthaura, Kenyatta and Ali, in relation to their alleged roles in the 2007-2008 Kenyan post-election violence, and they made their initial appearance before the ICC on 7 and 8 April 2011 respectively. On 30 August 2011, the ICC Appeals Chamber confirmed the admissibility of the two cases in the Kenya situation, rejecting the challenges of the Kenyan government.

PTC II held confirmation of charges hearings from 1 to 8 September 2011 in the case against Ruto, Kosgey and Sang, and from 21 September to 5 October 2011 in the case against Muthaura, Kenyatta and Ali. On 26 October 2011, PTC II announced that it would issue its decisions on wheth­er to send the cases to trial on the same date due to concerns for the safety of victims and witnesses involved in the cases.

PTC II is composed of judges Ekaterina Trendafilova (Presiding Judge), Hans-Peter Kaul and Cuno Tarfusser.

The ICC is the world’s first permanent international court to prosecute war crimes, crimes against humanity, and genocide. 120 states have joined the Rome Statute, the Court’s founding treaty. Central to the Court’s m and ate is the principle of complementarity, which holds that the Court will only intervene if national legal systems are unwilling or unable to investigate and prosecute perpetrators of genocide, crimes against humanity, and war crimes. There are currently seven active investigations before the Court: the Central African Republic; the Democratic Republic of the Congo; Côte d’Ivoire; Darfur, the Sudan; Ug and a, Kenya and Libya. The ICC has publicly issued 19 arrest warrants and nine summonses to appear. Three trials are ongoing. The ICC prosecutor has also made public that it is examining eight situations on four continents: Afghanistan , Colombia , Georgia , Guinea , Honduras , Republic of Korea , Nigeria and Palestine .

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International Criminal Court (ICC) suspect and former director of military intelligence in Libya—was captured in the south of Libya. His arrest follows the reported capture on 19 November 2011 of ICC suspect Saif Al-Islam Gaddafi, former Libyan government spokesman and son of former Libyan leader of Muammar Gaddafi. The ICC is the world’s first and only permanent international court to prosecute war crimes, crimes against humanity and genocide.

“The Coalition welcomes the arrest of the ICC suspects as a positive step towards accountability in Libya,” said William R. Pace, convenor of the Coalition for the International Criminal Court—a global network of over 2,500 civil society organizations in 150 countries advocating for a fair, effective and independent ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity. “We now urge Libya ’s interim leaders to ensure that this accountability is fully carried through and justice is brought to victims of the alleged crimes committed in Libya ,” Pace said.

Abdullah Al-Senussi and Saif Al-Islam Gaddafi are both wanted by the ICC for crimes against humanity allegedly committed in Libya since 15 February 2011. Muammar Gaddafi, for whom an ICC arrest warrant had also been issued, died on 20 October 2011. Under the terms of UN Security Council Resolution 1970 (2011), which unanimously referred the situation in Libya to the ICC, the competent Libyan authorities are obligated to cooperate fully with the Court, including in the arrest of ICC suspects.

Under the Rome Statute, the Court’s founding treaty, Libyan authorities have primary jurisdiction over crimes committed in their country. However, in light of their obligations under UNSC Resolution 1970—and in keeping with their obligations contained in Article 89(1) of the Rome Statute, in the ICC warrants of arrest, as well as in the request for the arrest and surrender of the suspects to the Court—it is essential that the Libyan authorities facilitate the transfer of the suspects to the ICC. If the Libyan authorities have identified any problems that may impede or prevent the transfer of the suspects they must consult with the ICC without delay.

According to the Statute, if the Libyan authorities wish to assert their right to try the suspects in Libya, they must—at the earliest opportunity—challenge the admissibility of the cases on the grounds that they are independently and impartially investigating, or prosecuting, the same individuals for the same crimes at national level. This admissibility determination would be made by ICC judges. The transfer of the suspects to The Hague would not prevent the Libyan authorities from undertaking future domestic proceedings against the suspects for other alleged crimes.

On the other hand, should the Libyan authorities allege that the immediate execution of an ICC request for cooperation would interfere with ongoing investigations or prosecutions of a case different from that to which the request relates, they must consult with the ICC and may postpone the execution of the request for a period of time agreed upon with the ICC, but no longer than is necessary to complete the relevant investigation or prosecution in the requested state. If a decision to postpone is taken, the ICC prosecutor may still seek measures to preserve evidence.

“At this time, the most important principle to keep in mind is that the Libyan authorities must abide by the rules of the ICC statute so as to ultimately allow the two suspects to face independent and impartial proceedings for alleged crimes against humanity,” Pace stressed. “In this respect, the Coalition calls on the interim government in Libya to ensure the safety of the suspects and the delivery of due process.”

Meanwhile, the ICC retains jurisdiction over events in Libya since 15 February 2011, even after UNSC Resolution 2016 which ended the UN mandate allowing military intervention and terminated the no-fly zone. Libyan authorities consequently continue to be obligated to prevent and investigate any potential ICC crimes on their territory.

In a public letter sent to the president of Libya ’s transitional government on 27 October 2011, the Coalition also urged Libya ’s interim leaders to move quickly to ratify key international human rights and humanitarian law treaties, in particular the Rome Statute.

“It is crucial for the transitional government to demonstrate its commitment to justice and human rights by moving quickly to ratify key international human rights and humanitarian law treaties, in particular the Rome Statute,” Pace added. “It is equally important for the interim authorities to strengthen the national justice system’s capacity to ensure accountability and the rule of law.”

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The trial is scheduled to kick off on 11^th July 2011. A team from the international crime division in Kampala on Wednesday met and held discussion with Gulu district councillors to inform them of Kwoyelo’s pending trial.

The registrar of international crime division Tadeo Asiimwe said they don’t want the trial to take people by surprise. He said the trial was pushed to Gulu because it is the area where Kwoyelo committed the crimes.

Asiimwe said they targeted the district councilors because they are representatives of the people and they are in position to inform the electorates.

He noted that the court is to stay and any other LRA commander accused of committing crimes against humanity will also face the same court.

He asked the members of the public who have sufficient evidence against the LRA commanders still at large to tender it in the international crime division of the high court.

Kwoyelo becomes the first LRA commander to face the international court since it was established in 2008.

Kwoyelo faces 12 counts of wilful killing, hostage taking and destruction of property and casing injuries to innocent civilians among others.

Gulu LCV chairperson together with other councilors supported the trial of Kwoyelo saying even other perpetuators should also be brought to book.

By Mugisa Isaac Mathias

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A group of Commonwealth experts has started the work of revising the Commonwealth model law on implementing the Rome Statute to help Commonwealth countries implement the Rome Statute of the International Criminal Court domestically so that they can investigate and prosecute effectively at the national level some of the most serious crimes of international concern, thus helping to close the impunity gap.

The group of legal professionals, government officials, academics and representatives of civil society groups chaired by Professor Charles Garraway representing the British Red Cross Society is meeting from 23 – 25 February 2011 at the Commonwealth Secretariat’s headquarters in London to recommend changes to the model law on implementing the Rome Statute.

Torture on the increase in Uganda

The group will recommend changes that reflect best practice and legal developments which have taken place since the last model legislation was adopted in 2005.

The Rome Statute which entered into force in 2002 is the treaty that established the International Criminal Court to prosecute perpetrators of crimes against humanity, war crimes,genocide and the Crime of Aggression.

To date, 114 countries have signed up to the Rome Statute, including 34 Commonwealth countries.

Akbar Khan, Director of Legal and Constitutional Affairs at the Commonwealth Secretariat noted that revising the model law on implementing the Rome Statute is important to provide an up-to-date template to help Commonwealth countries to draft laws that can be implemented nationally and which reflect contemporary legal developments.

Mr Khan said, “Without effective domestic legislation member states that have signed the Rome Statute of the International Criminal Court will be unable to fully co-operate with the ICC or to fulfil their primary legal responsibility to conduct effective national investigations and prosecutions of these serious international crimes resulting in injustice to victims and impunity”.

The revised Commonwealth model law will be presented to Commonwealth Law Ministers for approval at their next meeting which is scheduled for July 2011 in Sydney, Australia.

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