International Justice for Victims? Assessing the International Criminal Court from Victims’...

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INTERNATIONAL JUSTICE FOR VICTIMS? ASSESSING THE INTERNATIONAL CRIMINAL COURT FROM THE PERSPECTIVE OF VICTIMS IN KENYA AND UGANDA1

CHRIS TENOVE

ACKNOWLEDGEMENTS

This research was conducted with the help of research assistants in Uganda

and Kenya: Harriet Aloyo, Jerry Anyoli, Francis Ociti, Leonard Opiyo, Maria

1 This paper presents preliminary findings of research conducted towards the author’s academic thesis. As this research is a work in progress, comments may be sent to the author at [email protected]

ABSTRACT

This paper considers the role of the International Criminal Court (ICC) in

advancing justice for victims of mass violence in Kenya and Uganda. It

contends that victims should be consulted to evaluate the ICC’s performance

and the principles of justice it promotes. The report draws on 14 focus groups

with 84 victims of violence in Kenya and Uganda, as well as interviews

with members of 30 civil society organizations. Discussants supported the

ICC’s attempt to hold leaders to account for mass violence when domestic

accountability mechanisms fail but questioned the ICC’s impartiality and

effectiveness. Accountability-seeking alone will not provide justice for victims,

focus group members and civil society interviewees insisted, but they also

require assistance and reparations. Requests for material reparations far

outstrip the ICC’s mandate and capacities, but discussants expressed some

agreement on priorities for who should receive them. While discussants were

keen to see victims engage with ICC processes, few felt well-informed about

the Court or understood its approach to victim participation. Finally, the report

notes several challenges faced when assessing victims’ perspectives on

international criminal justice.

NO. 1 OF 4 SEPTEMBER 2013

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WWW.AFRICAPORTAL.ORG RESEARCH PAPER NO. 1 OF 4 SEPTEMBER 2013

Radziejowska and Nelly Warega. The Coalition on Violence Against Women

(Kenya) and the Justice and Reconciliation Project (Uganda) provided

invaluable assistance, including aid in organizing focus groups. The Africa

Initiative of the Centre for International Governance Innovation and the

Liu Institute for Global Issues supported this research project. The author

greatly appreciates the time and effort that interviewees and focus group

participants took to meet with him and discuss difficult issues.

INTRODUCTION

The International Criminal Court was once considered a utopian fantasy.

It now has 122 member states and is currently prosecuting violations of

international law in eight countries. Proponents have claimed that the ICC

— and international criminal justice more broadly — can help deter mass

violence, enforce the rule of law and advance respect for human rights

(Akhavan, 2001; Sikkink, 2011; UN Secretary-General, 2004). Another

key claim is that the ICC will help victims of mass violence seek justice,

an assertion that contributes to the Court’s authority in international and

domestic politics (Dixon and Tenove, 2013; Kendall and Nouwen, 2013).

However, others have questioned whether the ICC can advance the forms

of justice that victims desire (Branch, 2011; Clarke, 2009; Shaw and Waldorf,

2010). To assess these concerns, this paper considers the role of the ICC

in advancing justice for victims of mass violence in two countries where the

Court has intervened: Kenya and Uganda.

It may seem obvious that international criminal tribunals should be

responsive to the views and concerns of victims.2 However, the tribunals

that preceded the ICC did not emphasize victims’ interests or promote their

participation in judicial processes to a significant extent (Schabas, 2007;

Moffett, 2012). Civil society organizations and sympathetic states lobbied for

victim-focused provisions to be included in the Rome Statute, the founding

treaty of the ICC. They were motivated by criticisms of past international

criminal tribunals, as well as by the rising importance of victims’ rights in

international human rights law and in domestic criminal law in many states

(Schabas, 2007; Schiff, 2008). As a result, the Rome Statute gives victims

2 For the purposes of this paper, “victims” are those harmed by acts defined as crimes in the ICC’s Rome Statute. The term victim is contentious for many, due to the connotations of powerlessness or dependency. See the Findings section for focus group participants’ responses to the term.

ABOUT THE AUTHOR

Chris Tenove

Chris Tenove is a doctoral candidate in the Department of Political Science, University of British Columbia, Canada. He studies how international organizations relate to their transnational constituencies, with a focus on international criminal tribunals and victims of mass violence. His research has been funded by the Pierre Elliott Trudeau Foundation and the Social Sciences and Humanities Research Council. His journalism has appeared in The Globe and Mail, Maclean’s, The Walrus and the Radio Netherlands World Service. He holds a Masters of Arts in Rhetoric from the University of California, Berkeley, and a Masters of Journalism from University of British Columbia.

3 INTERNATIONAL JUSTICE FOR VICTIMS? ASSESSING THE INTERNATIONAL CRIMINAL COURT FROM THE PERSPECTIVE OF VICTIMS IN KENYA AND UGANDA


the rights to legal participation and reparations. The Rome Statute also

mandated the creation of the Trust Fund for Victims, a quasi-independent

body that provides material assistance to victims and helps to implement

reparations orders. Because of these provisions and the concerns that

motivated them, some commentators claim that the ICC goes beyond the

strictly retributive justice model of previous international criminal tribunals

and promotes victim-centred or restorative justice (Funk, 2010; Musila,

2010).

Whether the ICC can meaningfully advance justice for large numbers of

victims remains to be demonstrated. Different approaches can be used to

make that assessment, such as evaluating the development of victims’ legal

rights or examining links between ICC actions and phenomena like conflict

or mortality rates. This report takes another approach: it engages victims

themselves in reflection and deliberation. There are several reasons for

doing so. First, victims have a keen understanding of the forms of violence

that have taken place and the sources of harm that need to be addressed.

Second, justice is a contested and multi-dimensional concept that varies

within and between societies. Attempts to impose one understanding or

one institutional form of justice have been criticized by many scholars and

activists, particularly those who focus on African societies (Clarke, 2009;

Drumbl, 2007; Shaw and Waldorf, 2010). When looking at international

institutions that claim to advance justice, it is necessary to ask whether

their activity undermines or violates other valid forms of justice such as

domestic trials or customary processes of compensation and forgiveness.

Moreover, victims are affected by many ICC programs and are therefore

a key stakeholder group that should be consulted to evaluate program

relevance and impact.

To engage victims on the principles and practices of the ICC, the author

conducted 14 focus groups with individuals who were affected by the

2007–2008 post-election violence in Kenya or by the ongoing civil war in

Uganda. The focus groups were held between June and August of 2012 in

communities that had experienced extreme violence. In total, 84 people

participated: 45 women and 39 men. Participants had experienced a range

of traumas, including: bodily injury; deaths of loved ones; kidnapping; and

the destruction of property. Discussions focused on several issues: Who

count as victims? What kinds of justice do victims seek? To what extent do

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ICC processes resonate with the desire of victims for justice? How should

the ICC engage with victims? To gain further insight into these questions

and to contextualize the positions advanced in focus groups, interviews

were conducted with members of 30 civil society organizations in Kenya,

Uganda and The Hague. Background interviews were also conducted with

ICC staff.

In brief, focus group participants and civil society members expressed general

support for the ICC’s key principles: accountability for crimes; impartiality;

reparations and material assistance for victims; and the engagement of

victims in judicial processes. However, many were unsatisfied with the

implementation of these principles to date. Going forward, the ICC and civil

society supporters must therefore seek to bring victims’ expectations and

the ICC into closer alignment. Moreover, it is clear that given the Trust Fund’s

limited funds, it can contribute only limited reparations to victims. Thus, to

deliver on the promise of advancing justice for victims, the ICC, member

states, donors and civil society organizations must pursue complementary

processes to the Court’s accountability-seeking, assistance and reparations,

truth-telling and victim legal empowerment.

Discussions with victims and civil society members in conducting this

research suggested three main challenges to representing victims’

views. First, victims often lack sufficient information about the ICC and its

activities to provide their considered opinions on its performance. Second,

some victims experience frustration when they are asked repeatedly

for information but do not see the resulting reports or receive tangible

benefits, a phenomenon that has been called “consultation fatigue”. Third,

victims hold diverse and sometimes competing views on who should be

prosecuted, what punishment is appropriate and how reparations should

be implemented. To address these challenges, this paper recommends that

the ICC, civil society organizations and academic researchers should:

• Use a variety of methods to consult with victims, including

opportunities for informed deliberation as well as opinion surveys.

• Provide feedback to victims so they know the results of consultations

and the possibilities for concrete outcomes.

• Acknowledge diverse viewpoints but identify when there is significant

consensus on underlying normative commitments or policy priorities.



These and other strategies can be used to improve the likelihood that

victims’ perspectives will be recognized and acted upon.

METHODOLOGY AND COUNTRY CASES

The methodological approach used for this paper assumes that victims of

mass violence have valuable knowledge about the impact of violence and

about the forms of justice that should address it. The paper’s qualitative

data comes primarily from focus group discussions with individuals who

were harmed by war crimes or crimes against humanity. Focus groups

did not simply register participants’ initial opinions, but also provided an

opportunity for participants to discuss and justify their positions, thereby

revealing some of the evaluative principles that underlie individual views on

justice, victimization and the ICC.

Participants were selected from communities that had experienced high

rates of violence in post-election conflict (Kenya) or civil war (Uganda).

Contact with participants was made with the assistance of community

mobilizers affiliated with the author’s local partner organizations: the

Coalition on Violence Against Women (Kenya) and the Justice and

Reconciliation Project (Uganda). Participants were purposively selected to

create groups with different ages and experiences of violence, drawn from

different geographical sectors of each community. Eight focus groups were

conducted in Kenya, six in Uganda. Between five and seven individuals

participated in each group. In total, 45 women and 39 men participated.

(See below for more information on the country cases and the make-up of

focus groups.) One facilitator ran group discussions while the author and a

translator took notes and occasionally added questions. Discussions were

conducted in Lango, Luo or Swahili, and lasted approximately two hours.

Audio recordings were later translated into English and analyzed.

Given the small sample size of participants and the large numbers of

victims in Kenya and Uganda, the study’s results cannot be assumed to

be representative of all victims in the two countries. However, the points

of view advanced in the focus groups were consistent with published

surveys of victims’ opinions (ICJ and KHRC, 2012; Pham and Vinck, 2010;

Pham et al, 2007; Robins, 2011; United Nations Human Rights, 2011).

Focus group results were supplemented and contextualized by individual

interviews with members of 30 different civil society organizations that

6 THE AFRICA PORTAL


focus on victims’ issues (12 in Kenya, 14 in Uganda and four in The Hague).

These organizations included most of the major national non-governmental

organizations (NGOs) in Kenya and Uganda that work on transitional justice

issues, as well as community-based organizations in key affected areas

(Kibera, Kisumu and Eldoret in Kenya; Gulu, Lira and Soroti in Uganda).

This research posed two forms of risk to focus group participants. First,

many had experienced or witnessed severe violence and these experiences

occasionally arose in discussions. To mitigate the risk of re-traumatization,

all research team members had been trained to conduct research with

survivors of violence. Participants were offered access to psychological

counseling if requested. Second, discussions touched on possible criminal

acts by other individuals, including members of the military or government.

Focus groups were therefore conducted in private settings and records

maintained the anonymity of participants. All focus group participants were

given consent forms that explained the purpose of research project, their

access to psychological counseling and the extent of anonymity possible in

focus groups. The Behavioral Research and Ethics Board of the University

of British Columbia approved this research approach.

Uganda and Kenya were chosen as case studies to explore the perspectives

of victims who experienced different types of mass violence and different

triggers for ICC intervention. The ICC Prosecutor initiated investigations in

Kenya on his own accord in 2010 to investigate violence that followed the

disputed 2007 elections. By contrast, the Ugandan government invited the

ICC’s intervention in 2003, following more than 15 years of civil war between

government forces and the Lord’s Resistance Army. Trials have not begun

for suspects in either situation. In both countries there have been public

information campaigns by the ICC and discussions about the Court and

its investigations in the media and civil society. All focus group participants

were aware of the ICC and the kinds of crimes it addresses.

KENYA

Since Kenya returned to multi-party elections in 1991 there have been

several outbreaks of election-related violence. Political parties are

significantly divided along ethnic lines, and electoral victories are linked

to opportunities for preferential treatment by government in legal and

economic matters. The 2007 national elections were hotly contested by the



Party for National Unity (PNU), led by incumbent President Mwai Kibaki,

and the Orange Democratic Movement (ODM), led by Raila Odinga.

After a delay that prompted suspicion among many voters, the Electoral

Commission pronounced PNU the winner. ODM supporters immediately

rioted in several parts of the country, which provoked both spontaneous

and organized counter-attacks. The next two months saw ethnically-targeted

killing, maiming, sexual violence, looting and property destruction, as well

as widespread extrajudicial violence by police (Human Rights Watch, 2011).

Authorities appeared unable or unwilling to stop cycles of revenge:

Despite previous election-related violence, the 2007–2008

violence was unprecedented and pushed Kenya to the brink

of civil war. It was the culmination of systematic collapse

of institutions regarded as the vanguards of the rule of

law, human rights and democracy, such as the police, the

judiciary and the Electoral Commission of Kenya. (ICJ and

KHRC, 2012: 3)

Violence quickly ended after an African Union mediation team led by former

UN Secretary-General Kofi Annan brokered a power-sharing deal between

the political factions. The negotiating parties agreed in February 2008 to a

National Dialogue and Reconciliation process, which included the creation

of the Commission of Inquiry into Post-Election Violence (2008), known as

the Waki Commission. Among its findings, the Commission estimated that

more than 1,100 people were killed and about 350,000 were displaced.

The Commission called for a special tribunal to seek accountability for the

violence and threatened to turn evidence over to the ICC if the government

did not do so within 105 days. After the Kenyan executive and Parliament

failed to create a special tribunal in the following year, Annan handed the

evidence over to the ICC.

Prosecutor Luis Moreno-Ocampo sought and received authorization

from ICC judges to investigate crimes committed during the post-election

violence. In late 2010, he named six suspects: three associated with the

PNU (Deputy Prime Minister Uhuru Kenyatta, civil service head Francis

Muthaura, and Inspector General of the Police Hussein Ali) and three

associated with the ODM (former cabinet ministers William Ruto and Henry

Kosgey, and journalist Joshua Sang). The Court held pre-trial hearings in

The Hague in 2011 to determine if the Prosecutor had sufficient evidence

8 THE AFRICA PORTAL


to confirm charges against the suspects. Charges were confirmed against

Kenyatta, Muthaura, Ruto and Sang, but the prosecution later dropped

charges against Muthaura. Trials are set to begin in September, 2013.

ICC activities have provoked extensive media attention and political

manoeuvring in Kenya (Brown and Sriram, 2012; Kegoro, 2012). President

Kibaki mounted a diplomatic offensive to have the trials shifted from the

ICC to Kenyan or regional courts. Former political foes Kenyatta and Ruto,

both indicted by the ICC, joined forces and ran together in the 2013 national

elections, which they won. Kenyatta is now President and Ruto is Deputy

President. The impact that ICC indictments had on the elections and

the Kenyan government’s continuing cooperation with the Court is hotly

debated (Dowden, 2013; Obel Hansen, 2013).

FOCUS GROUPS IN KENYA

Focus groups were conducted in Nyanza and Western provinces, as well

as the informal community of Kibera in Nairobi. Participants were victims of

different forms of post-election violence, including rape, assault, looting and

destruction of property, murder of family members and police shootings.

Many had been displaced from their homes and no longer live where the

violence occurred. Three focus groups were composed of women only, two

had men only, and three were mixed. Ethnically, five focus groups were

predominately composed of Luo or Luhua participants (ethnic groups

associated with the ODM), and three were predominately composed

of participants who were Kikuyu or belonged to other ethnic groups

associated with the PNU in the 2007 elections. The Kalenjin ethnicity was

under-represented in this study. To encourage openness, most groups

were composed of individuals of similar ethnicity or political affiliation. This

strategy was used to diffuse possible conflicts among participants, based

on recommendations by ICC and NGO staff. Nevertheless, focus groups

produced a diversity of opinions on key issues.

UGANDA

Conflict between the Ugandan government and the Lord’s Resistance Army

(LRA) has lasted for over 25 years, at varying degrees of intensity and

sometimes extending beyond Uganda’s borders. During that time the LRA



has abducted tens of thousands of children and killed, maimed and tortured

thousands of civilians in its attempt to resist the government of President

Yoweri Museveni and gain authority over fellow northern Ugandans (Allen,

2006; Branch, 2010). The Ugandan military has, in turn, been accused of

committing violations while opposing the LRA, including looting, torture and

extrajudicial killings, as well as forcibly confining hundreds of thousands of

civilians in dangerous camps for internally-displaced persons (Dolan, 2009;

Human Rights Watch, 2005).

In late 2003, during an intense period in the civil war, the Ugandan

government requested that the ICC launch an enquiry: “Having exhausted

every other means of bringing an end to this terrible suffering, the Republic

of Uganda now turns to the newly established ICC and its promise of global

justice” (Government of Uganda, para 6).

In mid-2005, the ICC issued arrest warrants for Joseph Kony, the LRA

leader, and four of his commanders: Vincent Otti, Okot Odhiambo, Raska

Lukwiya and Dominic Ongwen. They were accused of committing war crimes

and crimes against humanity, ranging from murder to sexual enslavement.

These arrest warrants were issued amid peace negotiations between the

LRA and the Ugandan government, in which Kony identified the ICC warrant

against him as an obstacle to peace. A heated discussion about the merits

of justice and peace has resulted, both in Uganda and beyond (Hovil and

Quinn, 2005; Otim and Wierda, 2008; Wegner, 2012). To date none of the

charged persons has been arrested, and Lukwiya and Otti have since died.

No warrants have been issued for members of Uganda’s government or

military. While trials have not begun, some ICC programs have continued.

The Court’s Trust Fund for Victims has provided €700,000 to €1 million a

year in assistance for victims from 2008-2012.3 However, due to the absence

of arrests and the corresponding lack of judicial activity, in 2011 the ICC

began to scale down activities in Uganda. It has reduced in-country staff

and shifted resources, while continuing to maintain relationships with civil

society, victims and other actors, should there be arrests and the need to

quickly ramp-up activities.

3 Figure provided to the author by Scott Bartell, Regional Programme Officer for the Trust Fund for Victims.

10 THE AFRICA PORTAL


FOCUS GROUPS IN UGANDA

Focus group discussions in Uganda were held in three communities with

acute experiences of mass violence: Barlonyo (Lango sub-region), Lukodi

and Palabek Kal (both in Acholi sub-region). The Justice and Reconciliation

Project, the author’s Ugandan partner organization for this study, has

documented the violence in all three communities (2009, 2011, 2012).

All participants considered themselves victims of the civil war. They had

survived a range of violent acts, including the killing of relatives, sexual

assault, forced displacement and the destruction of property. In Palabek

Kal focus groups were conducted with one group of local opinion leaders

and one group of former abductees of the LRA. In Barlonyo and Lukodi

separate discussion groups were held for men and women. Both Barlonyo

and Lukodi are sites of notorious LRA massacres and have received

significant attention from the ICC, including multiple visits from outreach

teams. Participants can be presumed to have greater knowledge of the ICC

and its activities than most northern Ugandans.

FINDINGS AND ANALYSIS

In general, focus group participants agreed with the key normative

principles and aims of the ICC. There was much greater disagreement

among participants in their evaluations of the Court’s implementation of

these principles. Victims who participated in focus groups are hereafter

referred to as “discussants” or “participants”. Interviews with civil society

members are identified as such.

WHO ARE VICTIMS?

Focus group discussions explored the criteria and consequences for

identifying people as victims. Two issues emerged: what it means to be

labeled a victim, and possible disappointment or conflict over who is granted

victim status by the ICC.



Focus group participants were asked who are “victims of conflict.”4 Most

defined the category broadly. It included and sometimes extended beyond

those harmed by crimes specified in the Rome Statute. Many Ugandan

focus group participants stated that all people forced by the government

into internal displacement camps were victims because of the harsh

conditions, disruption of livelihoods, rampant disease and social discord.

Some academics and human rights groups agree (Branch, 2011; Dolan,

2009; Human Rights Watch, 2005). Ugandan participants also highlighted

the predicament of children born “in the bush” to mothers who were willing

or unwilling members of the LRA.

Kenyan and Ugandan focus group participants were clear that a victim was

properly defined not simply as someone harmed in the past, but someone

whose life plan or quality of living was significantly disrupted.

Before the violence I depended on myself but now I am

helpless! As the community continues to have a good life, I

am suffering… the violence really interfered with me.5

Some scholars and activists have challenged the term “victim” because of

its possible connotations of passivity, dependence and powerlessness. The

term “survivor” is often proposed as an alternative.6 Focus group participants

were asked whether they consider themselves victims and what they think

of the term. All Kenyan and Ugandan participants agreed that the term

“victim” was appropriate for them — not only because of past harm, but

also because they continue to suffer material or psychological effects of that

harm. Many discussants linked victim status to a moral and social claim for

redress. As a result, justice was not conceived purely in terms of retribution

against a perpetrator, but also redress for victims.

4 In Kenya, we used the following phrases to refer to victims of post-election violence: jok mane owinjo pek mar tulo (Luo) and waathiriwa wa ghasia za baada ya uchaguzi (Swahili). In Uganda we referred to victims of war as Jo ma ayelayela pa lweny oketo can ikom gi (used for both Luo and Lango groups).

5 Female participant, FGD in Vihiga, Western province, Kenya.

6 This shift from victim to survivor has been a focus of feminist analyses of domestic violence (Lamb, 1999). Other scholars have argued that Africans are often depicted and labeled “victims” as a justification for Western humanitarianism and hegemony (Clarke, 2009; Mamdani, 2010; Sagan, 2010).



A victim is a person who suffered… he should be told why he

suffered and who made him suffer and how the person who

made him suffer can be involved in providing assistance.7

Several Kenyan focus group participants claimed that while the term “victim”

was accurate, it also caused them distress because it emphasized their

suffering. A small number of Kenyan participants further claimed that their

communities treated victims poorly out of the belief that victims impose

burdens on others.

I have a problem with being called a victim because I used

to rely on myself. I never used to beg. Now I do. We look for

small jobs and here everyone knows that we are victims. It

feels like we are being discriminated against.8

CONFLICT OVER VICTIM STATUS

The Rome Statute defines the crimes over which the ICC has jurisdiction.

If interpreted broadly, these crimes encompass almost all types of harm

that discussants considered to have produced victims. More contentious

for victims were the specific crimes that the ICC is prosecuting in Kenya

and Uganda and the implications this has for whom the Court defines as

victims. The ICC’s pursuit of crimes is limited in two ways. First, the Court

has no jurisdiction over crimes that occurred before July 1, 2002, when

the Rome Statute entered into force. Focus group participants and civil

society interviewees in Kenya and Uganda pointed out that similar acts

to the ones being investigated did occur before that date, and that such

victims would be left out of ICC processes. Second, the strategy of the

Office of the Prosecutor (OTP) is to pursue cases against a small number

of individuals for particularly grave crimes within a broader situation. Thus,

while many individuals perpetrated post-election violence and civil war, the

OTP has so far charged only six individuals in Kenya and five in Uganda.

In Kenya, the scope of prosecutions was further diminished after charges

were dropped against three defendants. For instance, when charges against

former Kenyan Police Commissioner Hussein Ali were dropped, victims of

7 Male participant, FGD in Vihiga, Western province, Kenya.

8 Female participant, FGD in Kisumu, Nyanza province, Kenya.



police shooting during the post-election violence lost the opportunity to

have crimes against them prosecuted by the ICC.

Several Kenyan focus group participants were aware that they are “situation

victims” rather than “case victims” — they were affected by crimes under the

ICC’s jurisdiction in the Kenyan situation, but not the specific acts that will

constitute the cases in upcoming trials. (This issue was less acute in Uganda

because cases have not significantly advanced and few participants knew

of the distinction between case and situation victims.) Those individuals

who were not harmed by acts specified in cases will not get the chance

to participate in trials and are less likely to benefit from reparations. This

distinction distressed some participants. First, they felt that the harm

against them was being ignored or denied by the ICC, and their normative

claims to justice thereby rejected. Second, they were disappointed that the

ICC would not help them pursue accountability, truth-telling or reparations.

Because victim status entails normative recognition and possible material

assistance, focus group participants in both countries were very concerned

that only “real victims” be recognized.

There are those who are not victims and whenever they

hear of anything they show up. We need the real victims to

be identified.9

If assistance is to be given, then identification and registration

of people with urgent needs has to be done… Otherwise

some wrong people might receive assistance and the real

victims will be sidelined.10

These concerns were amplified in Kenya by the government’s focus to date

on assisting only those people displaced by post-election violence into

formal IDP camps. Those who suffered from physical injuries, destroyed

property, murdered relatives or displacement into existing communities

rather than camps, received significantly less attention and assistance.

The government didn’t do a full profiling of victims and

assumed that the most visible [those in camps for internally

displaced persons] were the ones it had to deal with… The

9 Female participants, FGD in Nairobi, Kenya.

10 Female participant, FGD, Lukodi village, Gulu district, Acholi sub-region.



focus on displacement means that other kinds of victims,

for instance, victims of sexual and gender-based violence,

have never received proper attention. So there is bound to

be disgruntlement.11

Discussants feared that some victims would be ignored, but they also

identified types of victims in particular need of acknowledgement and

assistance. (See assistance and reparations section.) They were also

concerned that disappointment or conflict could result from reparations that

were distributed unfairly.

ANALYSIS AND RECOMMENDATIONS

Focus group participants accepted that the term “victim” was accurate.

However, the general acceptance of the term does not mean it is empowering.

If participants had engaged in a discussion about the value of “survivor”

or other terms, they may well have decided that they are preferable. But

within the parameters of these discussions, the vast majority considered

“victim” an appropriate label and that such a designation generated moral

obligations by others to provide redress.

Discussants thus supported the ICC when it reinforced the status of

victims as deserving social recognition and aid. However, participants

were concerned that the ICC might ignore some victims who deserve such

redress. In Kenya, participants in several focus groups felt that the ICC has

disregarded their suffering because violence against them is not part of the

cases to be tried in upcoming trials. In Uganda, some discussants argued

that the ICC is being unfair by narrowly focusing on specific victims of the

LRA, while ignoring those harmed by the Ugandan military.

Discussions with ICC outreach staff revealed that they are aware of these

concerns and seek to communicate that all victims of mass violence deserve

recognition and redress, even if only a smaller group of “case victims” will

be directly addressed by ICC processes. This issue will become more acute

if some individuals receive reparations. The ICC is aware of such risks, as

is clear in its first reparations order (Trial Chamber I, 2012). The Court must

continue to try to avoid creating conflict and disappointment based on its

decisions about cases and recipients for assistance and reparation.

11 Civil society member, interviewed in Nairobi, Kenya.



ACCOUNTABILITY FOR CRIMES

The principal function of the ICC is to hold individuals to account for

genocide, crimes against humanity, war crimes and aggression (launching

an illegal war). Because it is derived from Western criminal law practices

and principles, the ICC’s search for accountability is intended to be judicial

rather than political and to focus on individuals rather than groups. The

ICC’s grounding in international humanitarian law builds in two other

assumptions: leaders are responsible for the actions of subordinates and

some violence can be justified by its cause and its conduct. Focus groups

explored participants’ assessments of the accountability-seeking principles

of the ICC and its pursuit of accountability to date.

THE COMPLEMENTARY ROLE OF THE ICC

Participants in group discussions expressed a great deal of interest in

accountability for crimes committed during the post-election violence

in Kenya and the civil war in Uganda. When asked why an international

institution like the ICC should be involved, participants overwhelmingly

referred to the inability of their domestic judicial system to fairly and effectively

bring leaders to account. In Kenya, participants repeatedly claimed that the

shortcomings of the judicial system and the lack of accountability for past

election-related crimes necessitated the ICC’s involvement.

Those who planned the violence are in office right now, so

they will definitely interfere with the process… There’s a lot

of corruption here, meaning the courts will not do much.

That’s why the cases should be taken to The Hague.12

Focus group participants in Uganda were also skeptical of the domestic

judicial system. They claimed it is prone to corruption, would be biased

against LRA suspects and would ignore crimes committed by the Ugandan

government or military. This skepticism towards the domestic criminal

system extended to the International Crimes Division, the section of the

Ugandan High Court created to deal with serious international crimes.

We do not trust the Ugandan government to provide

impartiality, or fair trials, or transparency. But people from

12 Female participant, FGD in Kisumu, Nyanza province, Kenya.



other countries do not know the parties in our conflict and so

may be impartial in their judgment.13

Most participants in both countries agreed with the ICC principle of

complementarity —that the Court becomes involved when states themselves

are unwilling or unable to investigate and prosecute those responsible for

violations of the Rome Statute.

Many Kenyan discussants criticized the ICC’s efficacy in pursuing

accountability. Pre-trial hearings have occurred and trials are scheduled

to begin in September 2013. However, several civil society members and

focus group participants expressed concerns about the quality of the

prosecution’s evidence and the cooperation of the Kenyan government

with the ICC, particularly if indictees are re-elected. It remains to be seen

whether these fears will be borne out now that Kenyatta and Ruto have been

elected to run the government. It is troubling that several witnesses for the

prosecution have decided not to testify due to fears for their security (Uhuru

Kenyatta: ICC trial witnesses withdraw, 2013). The obstruction or collapse

of trials would block victims’ hopes for accountability or reparations.

Many Ugandan focus group participants have become skeptical of the

ICC’s efficacy despite their general support for its pursuit of accountability.

They expressed disappointment that eight years had passed without any

arrests or trials. Several participants stated that their hopes for the ICC had

been dashed when they learned that the Court has no police or army, and

so would primarily rely on the Ugandan military to make arrests. The same

military had failed to stop the LRA in the preceding 15 years.

SELECTIVE JUSTICE AND THE POLITICIZATION OF ICC ACCOUNTABILITY

The ICC and other tribunals do not seek to prosecute all violations of

international criminal law, but instead focus on individuals who are most

responsible for the gravest crimes. “Most responsible” and “gravest crimes”

are both open to interpretation. Thus, while constrained by the available

evidence, the OTP has considerable discretion over whom to prosecute

and for which crimes.

13 Male participant, FGD in Lukodi, Gulu district, Uganda.



Most focus group participants agreed with the ICC’s focus on leaders rather

than lower-ranked perpetrators. However, many wanted the ICC to pursue

charges against more leaders than it has so far.

In Kenya, almost half of participants claimed that the leaders of the two

parties that contested the election in 2007 — President Kibaki and Prime

Minister Odinga — should be prosecuted. Many were already convinced

that these leaders were guilty and saw the ICC as a viable means to hold

them to account.

The president and the prime minister should be included in

the list of suspects. They were responsible for violence…

Their presence at the ICC will bring calm to Kenya, especially

to victims.14

There has been considerable political mobilization against the ICC in Kenya

(Kegoro, 2012; Momanyi, 2013). Supporters of Uhuru Kenyatta and William

Ruto have gone to great lengths to suggest the Court is a threat to Kenya’s

sovereignty, or is being manipulated by internal or external opponents of

their ethnic groups, the Kikuyu and Kalenjin. Few focus group participants

agreed with these arguments. As one stated, “The masters of impunity in

Kenya are the ones advancing such kind of arguments because they know

ICC will finally get to the bottom of the matter and they may be affected in

one way or another.”15

While some participants claimed that the ICC’s involvement had improved

the tone of politics in Kenya, others disagreed:

Because of ICC we have peace; it has tough rules regulating

the conducts of our politicians. They don’t hurl abuses these

days.16

They preach peace but they have agents who do their dirty

work for them. When they are alone they speak openly. 17

14 Female participant, FGD in Vihiga, Western province, Kenya.

15 Male participant, FGD in Vihiga, Western province, Kenya.

16 Female participant, FGD in Ugunja, Nyanza province, Kenya.




In Uganda, almost all focus group participants argued that the OTP should

investigate and prosecute top leaders in the Ugandan government and

military as well as the LRA.

There is a saying that, “It is the commander of the black ants

that searches for the termites and calls its comrades to feast

on them.” So it is the commanders of the perpetrators who

should be punished. To me both the government and the

LRA leaders are responsible for the damage caused.18

By not holding leaders on both sides to account, participants argued, the

ICC ignores the suffering of many victims and fails to address the very

government impunity that contributed to the conflict. The OTP has claimed it

did look at acts committed by the Ugandan military, but that those acts either

occurred before the Rome Statute came into force or were not sufficiently

grave to warrant further investigation.19 Officially, the OTP is still pursuing

evidence of military and government responsibility for crimes (Assembly of

State Parties, 2012b). However, there is little information available for the

public to believe that substantive investigations continue.20

Many participants focused on political accountability rather than legal or

criminal accountability. Some participants in both countries drew on notions

of collective responsibility, in which household or clan heads are responsible

for the actions of all subordinates. Other participants claimed that the top

leaders were most responsible for the context that led to specific crimes:

Odinga and Kibaki whipped up sentiments during Kenya’s elections and

refused to compromise or step down when they ended. Museveni and

Kony, they stated, pursued political objectives by military means despite the

suffering of civilians. However, some participants did argue for the criminal

responsibility of top leaders. They claimed that given the organizational

structure of the government, political parties and security services, it was

inconceivable that top leaders did not order or at least tacitly support the

18 Male participant, FGD in Palabek Kal, Lamwo district, Acholi sub-region, Uganda.

19 “Statement by the Chief Prosecutor on the Uganda Arrest Warrants,” The Hague, 14 October 2005, at 2-3.

20 The author contacted the OTP to provide some information about the scope and findings of their preliminary investigation. The Uganda Victims’ Foundation has made a similar request, and Human Rights Watch has repeatedly raised the issue in reports and forums. To date the OTP has not provided further information.



crimes committed. The fact that leaders have failed to investigate and punish

perpetrators in the ranks of these institutions supports this belief.

CRIMINAL VS. TRADITIONAL JUSTICE

The most profound challenge to the ICC’s approach to accountability would

be the rejection by victims of criminal justice in favour of alternatives, such as

traditional justice practices. Such alternatives held little appeal with Kenyan

focus group participants. When asked about traditional or customary justice

practices, none supported their use and just two of 44 suggested that

forgiveness — combined with public admissions of responsibility — was

preferable to trials.

Traditional justice practices were much more resonant with Ugandan focus

group participants, a finding in agreement with other research (Baines,

2007; Refugee Law Project, 2009; but see also Allen, 2010). Many Ugandan

participants claimed that traditional practices should be used to promote

accountability and reconciliation for former LRA militants, particularly those

abducted as children.

For the young ones forcefully abducted, they don’t have any

crimes because every time they are being forced to do bad

things all the time. Traditional justice can be for those ones…

But for the commanders who knew what they were doing

and issuing orders for the young ones to commit crimes,

there’s no traditional justice for them. 21

Opinions on traditional justice for LRA leaders were more varied. About

a third of participants thought senior LRA leaders could still be forgiven

if they would simply return to their communities and admit responsibility.

Participants who disagreed noted that LRA commanders had refused to

submit to traditional justice practices in the past, or had committed crimes

that were wider and more egregious than those practices could address.

Several members of civil society organizations noted that traditional justice

mechanisms might not work when perpetrators’ crimes affected diverse

communities, including those with different customary justice practices.

21 Male participant, FGD in Lukodi village, Gulu district, Acholi sub-region.



During the course of discussions, participants in five of six focus groups

came to agree that the ICC should play a complementary role to traditional

justice, targeting those persons whom traditional justice could not address.


The vast majority of discussants expressed support for the ICC’s aim of

holding to account those perpetrators most responsible for mass violence.

The ICC was seen as a valuable alternative to state judicial and political

processes. Focus group participants were most critical of the Court when

they believed it had violated its impartiality or shown itself to be powerless

against alleged perpetrators.

When participants criticized the ICC for being biased in its search for

accountability, they spoke of two different problems. Some wanted a political

reckoning, and therefore argued that top leaders should be prosecuted

regardless of their direct involvement in crimes. The ICC should not take

this approach and must continue to explain that it is a judicial rather than

political body. Other participants feared that the Court acted in a biased

fashion in its judicial functions, treating some parties differently than others.

The ICC should strive to act and appear as impartial by attending to

crimes by all sides in a conflict. The OTP can use its discretion to mitigate

perceptions of bias. In Kenya, the OTP launched proceedings against three

individuals aligned with each of the two contesting political parties — a

clear attempt to show evenhandedness. In Uganda, in contrast, the OTP

has been criticized for only charging LRA leaders. If it does not charge

any Ugandan government or military leaders, the OTP must find a way to

give more information or assurances to victims to support its claim to have

investigated their alleged crimes.

The ICC was created to play a complementary role to national judicial

processes. Cases are only admissible at the ICC if states themselves are

unable or unwilling to investigate and prosecute. This complementarity

appealed to focus group participants. Most believed that their domestic

justice system was biased, corrupt, beholden to powerful officials and

unable to mount credible prosecutions of mass crimes. However, domestic

judicial action remains necessary. The Court will only ever prosecute

a small number of perpetrators for a limited number of crimes. National

judicial systems can address crimes by a larger number of perpetrators,



so it is disappointing that the national systems in Kenya and Uganda have

made so little progress on these matters (Jennings and Bwire, 2012; Human

Rights Watch, 2012).

Moreover, many focus group participants in Uganda proposed that

complementarity be expanded to work in conjunction with traditional justice

practices. During the course of focus group discussions, the majority came

to agree that the ICC should only prosecute individuals when traditional

justice practices are not appropriate or viable.

ASSISTANCE AND REPARATIONS

Focus group participants and civil society members repeatedly claimed that

prosecutions alone would not provide justice, since victims would still be

suffering the social, physical, psychological and economic consequences of

violations. Unlike most international criminal tribunals, the ICC is mandated

to advance such aims, primarily through the Trust Fund for Victims. This

section examines respondents’ views on assistance and reparations and

the ICC’s role in providing them.

DESIRES FOR ASSISTANCE AND REPARATIONS

Kenyan focus group participants repeatedly insisted that victims of post-

election violence need individualized compensation and livelihood

assistance. Several discussants mentioned the need for medical care, such

as for HIV/AIDS contracted by rape, or for bullets still lodged in bodies. But

today, almost five years after the violence, most victims require livelihood

assistance rather than humanitarian aid. For instance, several women who

had been raped during post-election violence in the informal community of

Kibera argued that plots of land outside Nairobi could be given to victims

like themselves, so they could live in peace with their children. Not only

would the arrangement afford them a small livelihood, but the women

could escape the stigma of being sexually abused, which often leads to

abandonment by their husbands.

As a victim, my husband said he cannot be with [sleep with]

a woman who has been with many men. And I’m not the only



one. So if I can be moved from Kibera and taken to a place

where I can be with my children I will be very happy.22

Many Kenyan participants wanted their former property returned or

compensation for it.

Everything was stolen from my shop and strangers are still

living in my house… It’s not that I have never followed up

that matter. I have gone to court and to district officials but

they do nothing. I was told to shut my mouth and stop talking

about it or I would die.23

Ugandan focus group participants also declared that assistance and

reparations were critical to justice for victims. There were differences in

emphasis compared to Kenyan participants, however. First, many Ugandan

participants called for assistance and reparations for communities or even

the whole northern region, rather than focusing solely on individuals. This

position was based on the observation that entire communities continue to

suffer from material and social problems caused by the conflict. Participants

often referred to the threats this legacy poses to future generations in

northern Uganda.

Honestly, the war has not ended; we have only rested from

the sound of gunshots. There are yet three bigger wars that

will make us continue to suffer if we don’t open our eyes:

shortages of food, lack of access to education and diseases

… All these came as a result of the war.24

Focus group participants in Kenya and Uganda expressed a demand for

material assistance and reparations that far outstrips the ICC’s mandate

or resources. But discussions also revealed that there might be broad

agreement on those victims who should be prioritized. Many Kenyan

focus group participants recognized that people who became disabled

or families who lost breadwinners were in particular need of assistance.

Ugandan participants identified people with permanent disabilities, persons

abducted by the LRA, female returnees with children born in captivity, those


23 Female participant, FGD in Kisumu, Nyanza province.




whose family members were killed, and above all orphans and widows,

as being in particular need. However, focus groups only explored priorities

for assistance and reparations in a preliminary fashion. More detailed

consultations are needed, including on the role of non-material reparations

and the sequencing of reparations.

A second difference between the responses in Kenyan and Ugandan focus

groups related to the role of traditional justice practices in giving meaning

to reparations. Among Ugandan participants, reparations were seen as

necessary to repair social and sometimes spiritual discord in communities,

as well as to improve individual lives. Ugandan participants expressed

more interest than Kenyan participants in symbolic reparations, including

memorial sites and reburial ceremonies.

Focus group participants and civil society interviewees in both countries

warned that assistance and reparations to victims could lead to reconciliation

or conflict, depending on how they are assessed and distributed. Participants

were clear that “real victims” should be prioritized. They expressed concern

that government officials might steal or divert funding. Many Kenyan

participants bitterly criticized the government for favouritism and corruption

in the distribution of assistance to victims. Ugandan participants were

critical of government assistance programs, such as the Peace Recovery

and Development Plan for Northern Uganda, which benefited some

communities that had little experience of conflict. Overall, focus group

participants stressed the need for transparency and consultation with

victims on the design of assistance and reparation programs because of

their potential positive or negative impact on community reconciliation.

TRUST FUND FOR VICTIMS

The Trust Fund for Victims (TFV) is a partly-independent agency of the

ICC created for the benefit of victims of crimes within the jurisdiction of the

Court (Rome Statute, Article 79.1). The TFV has two mandates. First, upon

completion of a trial, the Court may ask the TFV to implement orders for

reparations to victims of crimes for which there are convictions. Because

no trials have been completed in Kenya or Uganda, no reparation orders

have been issued. Second, the TFV can provide assistance to victims of

crimes under ICC jurisdiction and also to their families. Funding comes

from donations that states or individuals voluntarily make to the TFV.



The TFV has not acted on its assistance mandate in Kenya, to the

disappointment of some civil society members who work with victims.

In Uganda, it has funded physical and psycho-social rehabilitation and

material support for victims. The trust has disbursed €700,000 to €1 million

a year since 2008.25 This amount is significant but small in comparison to

other major donors in Uganda.26

Most focus group participants in Kenya were unaware of the role that the

ICC or the TFV could play in victim assistance and reparations. At the time

these focus groups were held, the TFV had not communicated its approach

in Kenya. Several civil society members expressed frustration that by

2012, two years after investigations began, the TFV had not yet begun

designing an assistance program. Because of this uncertainty, many civil

society groups in Kenya have been careful not to raise victims’ hopes about

possible assistance, according to Carole Theuri of Kenyans for Peace, Truth

and Justice, an umbrella organization for human rights groups.

While some focus group participants in Uganda knew of the TFV, very few

were clear about the programs it supported. Once informed of the TFV’s

existence, Ugandan discussants became interested in its past and future

projects. Regardless of their views on accountability and ICC judicial

processes, some participants stressed that the Trust Fund’s assistance

would provide a tangible form of justice for many victims.

Civil society members in Kenya and Uganda also commented on the

importance of managing victims’ expectations for assistance and reparations.

Indeed, Ugandan civil society members pointed out that this issue is always

top of mind in consultations with victims. According to an NGO director from

Teso sub-region:

If you attempt to turn the discussion to something else,

[victims] will try as hard as possible to bring the discussion

back to support or compensation. That’s why it is not

easy to get information from victims, because they have

preconceived needs that must first be addressed.

25 Amounts of TFV funding in Uganda come from Scott Bartell, the TFV’s Kampala-based Regional Programme Officer. For details of TFV activities in Uganda see http://www.trustfundforvictims.org/projects.

26 For instance, the United States Agency for International Development has an annual budget for Uganda of approximately $320 million. See http://uganda.usaid.gov/programs.



The low profile of the TFV, especially before reparations proceedings have

begun, may have some benefits. It could avoid unduly-raised expectations

and prevent unwanted associations between the ICC’s accountability-

seeking and victim compensation. Indeed, several Kenyan civil society

members told us that large numbers of victims applied for victim participant

status under the mistaken belief that this would automatically lead to

compensation. On the negative side, the low profile of the TFV means that

victims may not be able to provide input into decisions about priorities or

programs for assistance.


Justice for victims was seen by discussants as going beyond accountability

to include assistance and reparation for those harmed. Three principles

dominated discussions. First, Kenyan and Ugandan participants stated that

all victims deserved compensation for harm and assistance to repair their

disrupted lives. In addition to assisting individuals, Ugandan discussants

argued for a broad reparations program to help communities affected by civil

war. However, the ICC is unlikely to contribute in significant ways to such

a program, given its limited resources and focus on reparations for victims

of specific cases. Second, participants identified specific types of victims

who most urgently need assistance and who should have first priority for

the TFV’s limited resources. Third, discussants explained that reparations

and assistance could either promote or disrupt community reconciliation,

depending on how they are designed and administered. As noted above,

the Court is aware of such risks (Trial Chamber I, 2012).

Participants did not praise or criticize the work of the TFV— it has not

operated in Kenya and very few participants were aware of its work in

Uganda. It is also clear that while assistance through the TFV is important,

in the context of tens of thousands of victims it is necessarily limited. If

there are reparations these will only come after convictions, which in the

two situations will happen years in the future — if at all. Moreover, these

reparations will focus on victims of the particular crimes prosecuted,

leaving many victims out. The Court and TFV should therefore contribute to

broader strategies for assistance and reparations in a variety of ways, from

sharing information and best practices to actively advocating for national



governments, donor states and humanitarian organizations to play these

roles.

VICTIM ENGAGEMENT AND PARTICIPATION

The involvement of victims in justice processes is central to restorative

or victim-centred justice. Such involvement can range from incorporating

their voices into trials to giving them a say over justice processes to be

pursued. The ICC attempts to involve victims through outreach (overseen

by the Public Information and Documentation Section, PIDS) and legal

participation (overseen by several ICC sections and by external legal

representatives for victims). This section describes discussants’ positions

on how victims should be engaged by the Court and on the existing scheme

for legal participation.

CONSULTING AND TRUTH-TELLING

For victims to engage with ICC processes they must be aware of the

Court’s existence and activities. The research approach used for this

paper does not lend itself to assessing the knowledge that victims have of

the ICC, due to the small sample size and the fact that participants were

exposed to information about the Court during the course of discussions.

Other researchers have conducted opinion surveys about justice and past

violence in Kenya and northern Uganda.27

Rather than assess the quality of ICC outreach, focus groups explored

participants’ perspectives on appropriate interaction between victims and

the Court. Two issues dominated discussions: the opportunity for victims to

contribute individually to truth-telling and the capacity of victims to monitor

the ICC and hold it to account.

When asked about a role for victims in the work of the ICC, many

participants stated that victims desire to contribute to truth-telling about

past violations. There were several reasons for this position. First, victims

27 For surveys of Kenyan public opinion on transitional justice and political reform after the post-election violence, see the quarterly monitoring reports by South Consulting (http://www.dialoguekenya.org/index.php/reports/monitoring-reports.html). For northern Ugandan opinions on transitional justice issues, including the ICC, see the reports by the Human Rights Center at the University of California, Berkeley (http://www.law.berkeley.edu/11979.htm).



have important knowledge of what happened, as eyewitnesses to violence

against themselves and others.

I will tell the ICC everything I have seen without fear or favour,

knowing that the only protection I have is God. I will not mind

as long as the ICC will pledge that it will use my testimony

as a basis of their investigation. Because I know the next

generation would reap the benefits of the truth when I am

gone.28

Second, participants claimed that certain decisions of the ICC — especially

the choice of individuals to prosecute — would be changed had victims’

interests been given priority. Third, some participants wanted the ICC to

hear about their personal suffering so it would provide aid.

Participants who wanted to testify sometimes commented on the personal

security risks that would result.

I would really love to participate in the work of ICC. Though I

fear for my life, I must do it. If I don’t give an account of what

I saw, the ICC might not know the truth. 29

Such concerns were particularly common in Kenya, where participants

feared retaliation by security services, or other ethnic or political factions.

Several members of NGOs in Kenya confirmed that such concerns are

justified.

In addition to truth-telling, many focus group participants proposed that the

ICC engage with them so they could monitor the Court’s performance and,

in particular, the quality of investigations and advocacy for victims’ interests.

Many Ugandan focus group participants complained of a lack of knowledge

about current activities of the ICC. This position was heard less frequently

in Kenya, where media access and media attention to ICC activities is high.

Several participants in focus groups in each country expressed frustration

that ICC staff or civil society members collected information from them, but

that these consultations didn’t lead to meaningful feedback or action.


29 Female participant, FGD in Ugunja, Nyanza province, Kenya.



The ICC always comes here to consult with us. We always

give them the information they want. They go and do not

come back, denying the opportunity to know what is

happening.30

LEGAL PARTICIPATION

The ICC statute gives victims the right to present their views and concerns

on issues arising before the ICC which affect their personal interests, if not

inconsistent with the rights of the accused or a fair and impartial trial (Article

68(3) of the Rome Statute). To participate, victims must submit forms that

show the harm suffered from an alleged crime under the ICC’s jurisdiction.

The ICC’s Victim Participation and Reparations Section coordinates

with victims in the field and makes sure that they are informed about the

process, often working with civil society organizations. ICC judges group

victims together so that many victims are represented by one or a few

lawyers, whose fees are paid by the Court. Victims apply to the Court to

participate. If accepted, they have the right to participate in different stages

of the judicial process, from pre-trial hearings to post-conviction reparations

proceedings. In the trial of Thomas Lubanga Dyilo, for example, lawyers for

victims presented statements in court, questioned witnesses and filed legal

motions. Some participants appeared in court and spoke about victims’

experiences and concerns, rather than acting as witnesses for the defense

or prosecution.

It is difficult to evaluate victims’ experiences of legal participation. First, the

identities of participants in the proceedings are confidential in order to protect

them. ICC staff and civil society members in both countries stated that victim

participants are widely confused with victims testifying as witnesses and so

may be targeted for intimidation or retribution by supporters of accused

persons. Second, because trials have not begun in either country, victims

and their representatives have had little opportunity to participate, although

victims’ representatives did play a role in pre-trial hearings in Kenya. This

section therefore examines ideas about victim participation rather than the

actual experiences of victims involved in these processes.

30 Male participant, FGD in Barlonyo village, Lira district, Lango sub-region.



VICTIM PARTICIPATION IN KENYA

During pre-trial hearings for the two cases being prosecuted in Kenya,

560 victims were accredited as participants in each case. The Chambers

selected lawyers to act for victims affected by each of the two cases, Sureta

Chana for one and Morris Anyah for the other. The lawyers met most of the

victims in their group on at least one occasion, and kept in regular contact

with them through Kenya-based field staff. During pre-trial hearings they

made submissions and opening and closing statements. Several members

of Kenyan civil society organizations praised the work of the lawyers, both

in the pre-trial hearings and in their work with victims via field staff. In late

2012, ICC judges assigned two new lawyers, Fergal Gaynor and Wilfred

Nderitu, to represent victims in the trials set to begin in September 2013.

The Court has not made public how many victims have been accredited to

participate.

Most focus group participants strongly supported the idea that victims

have a lawyer to represent them at the ICC. They stated that legal

representatives could advocate for material aid and describe victims’

experiences. Participants proposed that lawyers must know victims and

their communities extremely well and must not extort funds from the people

they represent.

Very few focus group participants understood clearly the victim participation

scheme at the ICC, or the contribution that victims’ lawyers had made in the

Kenyan cases so far. Civil society members in Kenya, by contrast, were

generally pleased with the role that the victims’ lawyers had played in pre-trial

processes. In the courtroom, Anyah and Chana introduced key arguments

seeking the judges’ recognition of harms that victims had experienced.

For instance, Chana strongly advocated for recognition that many victims

had property destroyed during post-election violence — an approach

potentially important for later determination of reparations. Anyah caught

errors or missed opportunities in arguments by the prosecution, which

may have undermined future possibilities for convictions and reparations.

Both lawyers introduced victims’ perspectives into the hearings. As one civil

society member in Nairobi observed:

If you listened to Sureta [Chana’s] presentation, she

managed to give actual illustrations, actual examples and



actual faces throughout. It wasn’t just broad-stroked; specific

victims’ voices were heard.

Victim participation in the upcoming Kenyan trials will be keenly watched,

both for its contribution to prosecutions and the possible impact on

reparations proceedings.

VICTIM PARTICIPATION IN UGANDA

In the proceedings related to Uganda, Pre-Trial Chamber II granted

participation status to 62 victims (Pre-Trial Chamber II, 2012). ICC staff

met with victims to discuss their application forms or to update them on

the situation. However, in the absence of judicial proceedings — such as

confirmation of charges hearings or trials — victims have not yet had a real

opportunity to exercise their right to participate.

When asked, almost all Ugandan focus group participants wanted to have

their interests represented before the ICC. Some, if given the opportunity,

wanted to attend hearings in The Hague.

If the perpetrators have been captured and trials are taking

place, the victims can go, listen to the trials and learn how

judgment will be passed. That would at least make victims

feel at peace and get consolation from the fact that the person

who committed atrocities against her is being punished.31

The vast majority of discussants supported the idea of being represented

by a lawyer who would gather victims’ views and evidence, present them

in court and report back to victims. They considered it practical, given that

there are thousands of victims, and emphasized that their representative

should know the victims’ communities well in addition to being unbiased

and having relevant expertise.

Many focus group participants said they were ready to give evidence of

what happened and the harm they suffered, provided their security was

assured. This willingness to testify was not only driven by the desire to punish

wrongdoers, but also by the belief that trials may facilitate reconciliation and

create an impartial record of the conflict for the benefit of future generations.

31 Female participant, FGD, Lukodi village, Gulu district, Acholi sub-region.




Most discussants expressed a desire to participate more fully with the ICC,

either to ensure that their interests are advanced or to have their testimony

contribute to public understanding of victims’ experiences. To advance justice

for victims, the ICC can engage them in three ways. First, the ICC can make

victims aware of the Court and its work. The ICC’s outreach section, PIDS,

is primarily responsible for information dissemination. As noted, this study

did not evaluate outreach. Focus group discussions suggested that there

is widespread understanding of the role of the Court but — particularly in

Uganda — limited knowledge about its ongoing activities.

Second, in addition to disseminating information about its work, ICC staff

can listen attentively to the experiences of individual victims. In this form

of engagement the emphasis shifts from speaking to listening: hearing

victims’ stories, acknowledging the harms they suffered and recognizing

the legitimacy of their grievances. Studies of victims involved in domestic

criminal legal systems have found that they are much more satisfied with

justice processes if court officials engage with them respectfully (Stover,

2005). ICC staff can engage in these communicative relationships but face

several challenges. They may not share a language or cultural background

with victims; they may not be able to meet victims repeatedly and build trust;

and there are just a few ICC staff available to interact with hundreds or even

thousands of victims in a country. Local personnel, such as the field staff

employed by victims’ lawyers, are most likely to be able to overcome these

challenges. Several participants in focus groups had interacted directly with

ICC staff and they seemed to better understand and appreciate the Court’s

work. However this sample size is too small to draw broader conclusions.

Third, in addition to promoting the recognition of victims in public

communication, and in addition to attentive listening to victims, the ICC can

give victims the opportunity to influence what happens in judicial processes.

The ICC does so by allowing victims’ views and concerns to be advanced

by lawyers or, in rare cases, by individual victims themselves. As noted

previously, it was not possible to discuss with victims their experiences of

legal participation. Such research will be possible in the future as cases

are completed. Moreover, once the Court renders more judgments it will

be possible to determine whether victim participation has had a significant

impact on decisions. But clearly the ICC’s approach to victim participation



is a significant departure from past international criminal tribunals and it

brings greater attention to victims’ needs and experiences. The possibility

for victims to be consulted by legal representatives, and receive feedback

on the development of judicial processes, held great appeal for focus group

participants in both countries.

CHALLENGES OF REPRESENTING VICTIMS’ VIEWS

This report has explored victims’ assessments of the ICC’s activities

and its approach to justice. There are however three main challenges to

representing victims’ views on these matters.

First, focus group participants sometimes lacked sufficient information to

evaluate the work of the ICC. Some participants were unaware of important

institutional facts, such as the existence of the Trust Fund for Victims or

the Court’s lack of jurisdiction over crimes committed before 2002. While

most focus group participants understood the basic role of the Court, many

claimed that they lacked information on its recent activities. To an extent,

these information deficits were addressed during the focus group itself. Better-

informed participants sometimes introduced their knowledge or corrected

false assumptions. Such corrections do not occur in regular opinion polling,

since individuals are questioned alone. Research has shown that policy-

making is better informed by soliciting people’s “considered opinions,” the

positions they hold if adequately informed and given time to reflect and

engage with alternative views (Fishkin, 2009). Considered opinions can be

identified through deliberative forums, which provide participants extensive

information on a topic and give them adequate opportunity to discuss

issues and solutions in depth. There are numerous examples of the use

of deliberative processes and stakeholder engagement around the world

(Fung, 2006; Smith, 2009). Such forums are resource intensive and time-

consuming and therefore could only engage a small number of people. Thus,

to understand the views of victims, ICC staff, civil society members and

academic researchers should draw on a variety of consultation methods,

including opinion surveys, focus groups, deliberative forums and individual

interviews.

Second, a vocal minority of participants expressed frustration that ICC and

NGO staff continually asked them for information but did not provide feedback



or deliver concrete results. This “consultation fatigue” was encountered in

focus groups in communities that are well-known sites of violence: Kibera

in Nairobi, Kenya, and the Ugandan villages of Lukodi and Barlonyo. Other

researchers in Kenya found a similar frustration at the lack of follow-up

or tangible outcomes after consultations, with the result that some victims

“saw no need to engage with other research initiatives” (ICJ and KHRC,

2012: 52). More consistent feedback is therefore necessary. The author will

work with partner organizations so that focus group participants will have

access to these research findings. This is but one strategy in the overall aim

of treating victims as research partners.

Third, focus group discussions revealed a great diversity in victims’ views.

For example, in Kenya, participants disagreed on who deserved to be

prosecuted and who counted as “real victims.” In Uganda, victims disagreed

about whether LRA leaders should be jailed if convicted or whether the

ICC undermined peace in the region. There were also differences between

Kenyan and Ugandan participants: traditional justice norms and practices

were important for Ugandan participants but did not figure in focus groups

in Kenya, for instance. It is important to acknowledge this diversity of views.

However, several strategies can be used to seek positions on which there

is broad agreement. Underlying normative commitments can be found, and

focus groups in Kenya and Uganda identified several common principles:

• Maintaining impartiality must be the ICC’s highest priority.

• The court should focus on the prosecution of leaders because they

are the architects of mass violence and are often shielded from

domestic accountability processes.

• Reparative measures for victims are critical. Punishment of

perpetrators without assistance to victims is not justice.

Focus groups were also able to determine policy priorities on several

contested issues. For instance, many focus group participants expressed

the desire for assistance from the Trust Fund for Victims. However, after

discussion, most focus groups in Kenya and Uganda came to a general

agreement on the kinds of victims who should be prioritized for assistance.

To take another example, Ugandan focus group participants disagreed about

whether all LRA soldiers could be forgiven after participating in traditional

justice practices. But five of six focus groups came to a general agreement



that lower-ranked and abducted LRA soldiers should face traditional justice,

while the punitive ICC approach was appropriate for a few top LRA leaders.

In sum, to address a diversity of opinion, ICC staff, civil society organizations

and academics should:

• Continue using a variety of methods to consult with victims, including

both opinion surveys and deliberative forums;

• Provide significant feedback to those who are consulted, including the

results of consultations and possible outcomes from them;

• Identify, when possible, where consensus lies on normative

commitments or policy priorities.

CONCLUSION

From discussions with community members and civil society organizations

it is clear that opinions on the ICC are mixed. Many endorsed its objectives

of impartial accountability for international crimes and reparative justice for

victims. But while some appreciated the role the ICC played, many believed

its achievements so far have fallen short of their expectations. In the words

of a Ugandan civil society member:

To me it seems like the ICC is in a learning process. It’s like

a pilot project, which will be of very little relevance today, but

probably beneficial for future generations.

Focus group participants did not come to discussions of the ICC looking to

have justice norms and practices explained to them. Rather, they hoped the

Court would promote aspects of justice that they already deemed important.

Many participants regarded the ICC as providing an opportunity to advance

justice that had not previously been available. For this reason, issues like

the ICC’s limited jurisdiction, its focus on a small number of perpetrators

and crimes and the limited resources for assistance and reparations all

provoked disappointment. Many participants expressed a desire for the

ICC to more vigorously pursue its mandated tasks — to prosecute more

people, deliver more assistance and reparations and engage victims more

deeply. There were also frequent calls for the ICC to take on further roles.

For instance, many participants did not see the ICC as simply a judicial

body, but as a new ally to improve long-standing political problems, either of



recurring factionalism and electoral violence (Kenya) or civil strife between

regions (Uganda). Some participants wished the ICC would deliver a range

of material goods, from new roads to funds for new businesses, which go

well beyond its capacities.

The ICC and its supporters can address the gulf between victims’

expectations and the Court’s actions in three ways. Court staff must continue

to consult with victims and their civil society representatives and seek to

better meet their expectations for:

• Impartial and effective investigations and prosecutions;

• Extensive and appropriately-targeted assistance and reparations;

• Meaningful participation in justice processes.

At the same time, the ICC and civil society must inform victims of the

mandate and limitations of the Court, and thereby dampen unrealistic

expectations. Finally, member states, donors and civil society organizations

must seek to complement the ICC’s forms of justice to extend their reach,

but also support forms of justice that are outside the Court’s mandate.

Ultimately, the ICC is but one of many players in the search for justice, a fact

that the Court itself recognizes (Assembly of State Parties, 2012a). Victims

deserve much more assistance and empowerment than the ICC was ever

intended to provide.

This report is by no means the final word on victims’ views and concerns

about justice in Kenya and Uganda. Rather, it is a contribution to on-going

discussions that should take multiple forms and should engage victims in

diverse ways. The author is privileged to have had the opportunity to listen

to individuals address matters of such gravity for themselves and their

societies.

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