Intro

James Pirtle is a trial lawyer and owner of The Sentinel Law Group, PLLC, a Seattle law firm and he is an attorney on the ground for Legal Advocacy Worldwide (LAW), a non-profit devoted to financing direct legal advocacy on behalf of the oppressed abroad, including the state-sanctioned persecution of the LGBT community in Africa. This blog chronicles how his involvement in the defense of Thomas Kwoyelo, a former child soldier in the Lord's Resistance Army (LRA) in northern Uganda, developed into a broad international human rights practice with crusading Ugandan attorney John Francis Onyango. This blog begins with their involvement in the Kwoyelo case and continues with updates and developments in the human rights cases. Read from the bottom up to see how it all unfolds.

Tuesday, August 30, 2011

Post 7: Luzira Prison and Another Setback

Days 5 and 6. Leisure and Angst

Yesterday (Sunday) was my day off. But another storm rolled in so I found myself pinned down. Good Morning Uganda is pretty awesome. They took a break to play a Milli Vanilli video.

I did get a chance to meet Andrew, Matt's friend Sam's brother. I brought a photo album from Sam for their mother. Andrew is a lovely man and said that he was available to help us in any way we need him. I have yet to meet anyone (besides Jackie and the Human Rights Commission--dummies) that has not been enthusiastic about helping with what we are doing.

Otherwise, we got the party going in the evening at the terrace where I taught the purse-lipped crowd how to do whiskey shots while rocking out to an African cover band.

Monday:

I flew half way around the world for this.

Today we are to go to Luzira prison so I can meet Thomas Kwoyelo. He has been an abstraction but it is time to make it real. There is so much information that I need. I have so many questions to ask. I've filled a notepad with everything I can think to ask to advance the case. It's hard to wait. I wonder what the prison is like. I can't wait to look into his eyes. I wonder what is there. The curiousity is killing me.

Breakfast? It's hard to eat. Room? Pace. Suit? You are going to prison, dummy, and you look fine. Watch television and wait. I could use some Mili Vanili.

Francis is here at 11. Cool as cool can be (see photo). Asshole. We work on the petition, passing the laptop back and forth. It's solid. We just need to fill in the blanks. Lots of blanks.


Caleb is not coming. Fine. We are picking up Nicholas on the way.

Here we go.

I would prefer Seattle traffic to Kampala's. At least there one would not expect someone to use your bumper to leverage his motorcyclye to get a better position. Roads are closed. We have to backtrack. Nicholas is hating on Charles. I just want to get there.

Charles (the driver--soon to become Charles MY Driver), is carting us to Luzira Prison. I don't know what to expect.

The street (if you can call it that) is lined with shacks selling wares and services. Bananas, sunglasses, haircuts, insurance (really?), and automotive services.

Nicholas is talking about his marital aspirations. He wants to be sure that whomever falls for him will love him for who he is and not for his vocation. I espouse the merits of being single. Francis has a hard time disagreeing with me even though he is married. He calls it falling into the ditch. I'm sure that is because my arguments are compelling.

Fun fact about Nicholas: His father was a powerful tribal member and begat 54 children.

Sad fact abut Nicholas: He lost a majority of his siblings to AIDS.

Nicholas then proffers a thought that I have not considered. We are driving in the car and I only catch every third word or so from these guys anyway and I have difficult time understanding them under ideal hearing conditions. That and they bounce back and forth between languages. But I caught something about murder and I ask Nicholas to repeat himself. Nicholas is concerned that if we push the government too hard (lift its skirt too high), maybe Kwoyelo has an "accident" in prison. Shit. No. I look at Francis and he is stone-faced staring out the window. He simply mutters, "We must do our jobs." The rest of the drive to the prison is silent.

Luzira Prison, to my surprise, occupies a beautiful piece of land outside of Kampala looking over Lake Vicoria. We negotiate our way up the commonplace red mud road. First checkpoint: We are a bunch of suits (and Charles the Driver). Move along. Next stop, don't you dare drive another inch. Okay, so we park. We walk up to the next checkpoint. Here we surrender all of our belongings. Bye bye, every bit of identifying information I have. Francis only wants my WSBA (Washington State Bar Association) license. Fine. But really?

Up to the final gate. Through the metal detector. It goes off furiously when I walk through. Right, I forgot I am wearing my new fancy birthday watch (thanks again, Jack and Klaire). The guards don't seem to give it much thought. Fine then. We are through a small thick metal door and inside the prison. There are a few minimum security prisoners and about fifteen guards at this point. The prisoners wear bright yellow. The guards are in khakis. The walls are dirty and it smells bad.

A guard with three stars adorning each shoulder emerges and leads us into a small room. This place reminds me of SERE school.

He is talking to Francis. Francis looks concerned. I hear the guard use the words "Pirtle"and "American." Francis switches to English. "He is a member of this team. He must meet with his client." The guard closes his eyes, tucks his chin, and does something that resembles jazz hands and leaves the room.

Nicholas says, "He will not let you see Kwoyelo."

What?! Why? Francis says, "He does not have a good reason. He is scared because you are an American." What am I going to do? Bust Kwoyelo out and make a break for it? I doubt we'd stand out.

The guard comes back and says he has spoken with his superiors. I am apparently a "diplomat" so I must get specific papers. Francis is exasperated. "He is NOT a diplomat. He is an ATTORNEY here to meet with his client!" The guard never makes eye contact with me but he is now losing his patience. "He will not get in. He will wait in a cell and you will go see Kwoyelo."

I will wait in a what? Fuck that. I quickly go over some of the questions I want Francis to ask Kwoyelo and beat a hasty retreat out of the prison. I am so upset and disappointed. I came across the world to meet this man and there was but one wall left between us. I reclaim my possessions and go to find Charles.

I spent the next hour outside grumbling and smoking cigarettes with Charles. He told me he was not surprised that they did not let me in. We spoke at length about dictators, corruption, his own struggles, and the realities of life in this part of the world. Charles offers to be my driver whenever I need one in Kampala. This makes me happy.

Francis and Nicholas finally emerge. They debrief me. It's good, but I needed to hear this with my own ears. They do say that Kwoyelo is very excited that I am here and that maybe my presence will bring the attention to his case that it deserves. Not if they keep thwarting me.

It is a very long drive back into town. Francis assures me that we will get this straight at the ministry and I will get to interview Kwoyelo at least once before I leave. They leave me at the hotel and Francis goes to his office to type up the torture petition. We don't know yet if we will be able to go to the prison ministry on Tuesday or not. It depends on what the moon decides to do (muslim holiday Eid). Turns out the moon did whatever it was supposed to do and Tuesday is a holiday. No offices are open.

Francis calls after the petition is finished. He is coming with his legal assistant to drink a beer with me. We go to a hole in the wall bar and I get to enjoy some delicious Nile Specials. Francis has determined that since today was such a disppointment and in light of the holiday, we will go to the headwaters of the nile (consolation prize?) at Jinja for some rest and relaxation on Tuesday.

Works for me.

Monday, August 29, 2011

Post 6: The War Room


Day 4. A plan (with a major hole) comes together

Six hours of sleep. That's better. Not enough, but better. My disposition has improved some. First a shave and a shower. Much better. Next, suit up and go down to the terrace. They are all getting to know me now. I think I am the only white person but I am also the guy that is always smiling and looking lost. That works for them. There is a woman who works in the restaurant that looks like Bubbles from The Wire. She smiles, does a little hop, and claps. She points and says, "Uganda tea! No milk!" You know it! Tea, juice, pineapple, rolls, beans, roasted tomato and spring rolls and I am set (and rather full).

Today is official game plan day. Francis shows up at 11 and we start to plan for the big meeting. We brainstorm about what arguments and authorities we need for the torture petition. We need to break down each individual witness statement. We also discuss at length how to change public perceptions about this trial. How can we get people like Jackie to understand the righteousness of this cause? Francis says that by the time of trial any one of us should be able to stand up and handle the whole thing. I think to myself, "I'm not licensed in Uganda, so you had best have your shit together, buddy." Oops (see below).

Francis and I catch a cab (time to cover my eyes) to Nicholas's office.

The War Room.

Nicholas is the final attorney on the team. He is from northern Uganda and does extensive work on torture cases. This is the first time I've met him. About five minutes into the meeting I am impressed with his intellect and thoughtfulness on the issues. He is a very serious and deliberative man. Not many smiles come from him. But I like him.

Here is what you need to know: This is the first time a case is being tried under the Geneva Conventions Act in the new International Crimes Division of the Ugandan court system. That said, the court has repeatedly stated, rather firmly, that this is a Ugandan case being tried under Ugandan law. The problem is that Ugandan law allows for the death penalty. The Geneva Conventions does not. We want this case tried under international standards.

Now the other shoe (finally) drops. Nicholas says we need to get to work straight away getting me a temporary license to practice in Uganda.

My eyes get wide and dart to Francis. "What? Francis?"

I have not anticipated this. Francis smiles, "James, we need you to argue and give this case international legitimacy." I am going to be arguing portions of the case? Yikes! And I thought the 9th Circuit was scary! I thought this would be a supporting role where Matt and I are the guys whispering in their ears and shoving the appropriate papers forward. Now I am a foreigner slated to wear a fancy robe and make arguments to people in powdered wigs in the first case ever tried in the Uganda International Crimes Court?

Okay, I admit it. I am so excited! Now, I've argued a zillion motions, numerous appeals, but I've never had a case that has gone through actual trial. Why not have the first be a capital international war crimes case? That's one way to ease in, no?

The thinking is that the presence of a licensed foreign attorney on the team making arguments about the necessity of the application of international standards to the court will rattle them. That, coupled with the media offensive we plan to launch, may put the government in an embarrassing position. The government does not want to have its skirt lifted (regarding Kwoyelo's torture and unconstitutional pre-trial detention), and that is exactly what we are going to do with the torture petition. The torture petition, media attention to the merits of the defense case, and the notice of association of counsel pro hac vice (the Ugandan version) should put them on the defensive and soften their hard line positions. Or, looking at it a different way, we are presenting them with the opportunity to show the world that they can have an open, honest, and fair trial. Maybe they will want to make a deal. If nothing else, it may save Kwoyelo's life.

We still have the amnesty petition outstanding with the constitutional court, but the amnesty commission is dubious about our chances. The problem with amnesty is that it is internationally frowned upon because it does not give rise to accountablity for perpetrators of war crimes nor does it help to assuage the injuries suffered by the victims and their communities. On the other hand, when a government promises amnesty, there is a strong case to be made that they should keep those promises. For example, if one were an LRA fighter and saw what is happening to Kwoyelo, what incentive would he have to lay down arms, petition for amnesty, and rejoin society? If the government arbitrarily grants amnesty, would he really be willing to take the chance?

We need to prepare an appeal in advance of losing the amnesty argument and there is no time to waste preparing for trial. Nevertheless, we are all (the three of us there) excited about how this is coming together. But we have a problem. A major problem.

We are woefully lacking in resources, human and financial, to properly prepare for and try this case. We need investigators to go north and interview witnesses. Every trip to Gulu (five hour trip) runs at minimum $500 for two days. The prosecution has at least 70 witnesses. We need our own and rebuttal witnesses. That means finding the witnesses in the northern villages (we can't exactly use the yellow pages). The trial proper will last for months. All of us, including you, my loyal readers, need to brainstorm about how to raise funds for this defense. Francis is preparing a defense budget which I will publish and when I get home I need to get to work straight away to find funds to help finance this case to its conclusion.

We can't walk away from this. As Francis said to me yesterday, if nobody stepped up Kwoyelo would already be sentenced and the truth about this ugly war would never come to light. The consequences surrounding how this case is handled and concluded has the potential to positively change this country (and continent) forever, impact the treatment of countless accused, and set global precedent for fairness and due process in future war crimes cases. Put simply, this is an historic opportunity to do a very good thing. We simply have to find a way.

Thoughts?

-James

Friday, August 26, 2011

Post 5: Darkness



Days 2 and 3:

It has been three days and already things are blurring together. I know I am tired. I haven't figured out the sleep thing yet. Today is the first day I haven't slept for several hours during the middle of the day then been bollocksed at night. I plan on getting to bed shortly as tomorrow is another full day.

Yesterday was day two. I am up early again and downstairs for the yummy breakfast. Back to the room and into my tasks. I haven't heard from my people so I decide to head out and try to find someplace to get cash. Though I have seen them everywhere, I did not realize how ubiquitous the heavily armed police are. They race up and down the street in packed pick up trucks and finger their machine guns on virtually every corner. There are dozens of them in every park. It's not hard to figure out what this is about. It's a tough time to be a dictator in Africa. Musevini, like any proper dictator, has no intention of loosening his grips on power. Arab Spring woke up most of this continent, but the fledgling protests in Uganda were brutally supressed. Now the police are everywhere lest anyone else think they have a good idea. Jackie says that the Ugandans are meek. Francis takes Umbrage with that characterization. He says that this country is simply sick to death of war.

I brought my camera with me and thought that I took some really good pictures. I happened upon a monstrous turkey-like bird with a long beek. I took some pictures of Musevini's "campaign" ads. I also took some sneaky pictures of the police, but it turns out I left the memory card in my computer, so I did not take any pictures at all. I walked by what I am sure was a dead body but I did not stop to check. I was also unable to find the Citibank, so I return feeling down. It appears that I take frequent breaks from my work and I realize that this material is getting to me. What I am working on is not abstract. Francis calls, tells me he is busy, but we will get together later in the afternoon or evening. I decide to nap.

Four hours later and it is 9:00. My phone hasn't rung. All the better, I think, because I am not feeling sociable and a torrential thunder storm has moved in. The storm cools everything down and the thunder and lightning remind me of Arizona. I think I am homesick. I opened the windows to listen to the storm and let the wind blow my drapes into the room. Some time later I decided I was not going to stay in afterall so I went out to a bar where I heard music through the storm. I ate salad, drank a Nile Special, and made some friends.

It's late when I get back and I'm not tired. Thankfully I can chat with my people back home. Around 4 I am ready for bed. At 6 I am having a malaria pill induced vivid dream about the grim reaper reaching for my feet. I woke up shouting, "Fuck you, Reaper!" while kicking the foot of the bed. Now I am awake again and my foot is bummed.

That's fine. I have work to do. Today the breakfast wasn't as good. Maybe the guild is off the lilly. Maybe I'm just tired. Back to the room and working on the torture issues. At 11 I want to go to bed but Francis calls. He'll be here in 10 minutes. Time to go through the witness statements. I have selected the 2 of 70+ that I find the most troubling for our case. Francis agrees. We go over them and over them again. I'm feeling ill. The detailed descriptions of human beings' brutal end is taking a toll on me.

Next we are off to the Human Rights Commission to discuss our issues with the head of the legal department. Most of the discussion entails what constitutes torture (another argument I am sick of) and the attorney thinks that some of our strategy (which I am not at liberty to discuss) may undermine some of the work she is trying to do. She is not going to help us. How can we not be on the same team? (Note: What she is trying to do is untenable and left me frustrated).

Back into the street (which is a perpetual game of Frogger--dodging motorcycles, cars, buses, open manholes). I won Francis's respect by racing across the street at a particularly perilous moment. He gave me accolades. I shrugged. The truth is that I forgot momentarily that they are driving on the wrong side of the road. Nevertheless, he admires my ballsiness. Within moments, however, I stepped on (into) what I think (thought) was a rock, to avoid a woman with a big basket on her head, but it was actually a pile of wet cement. Sorry, fancy shoes.

Positive note, Francis is savvy enough to know where to take me so I can get some cash. That problem is now solved.

Back to the room and more discussions about torture. Francis receives a call and informs me we are taking a taxi to the African Centre for Treatment and Rehabilitation of Torture Victims.

I think it is worse being in one of these vehicles than actually walking. Best not to look.

We arrived to meet with the CEO of ACTV and discuss at length the physical and psychological impact of torture on victims. Keep in mind that we are woking on issues surrounding Kwoyelo's torture while in custody (and during interrogations) and the court's seeming unwillingness to consider this a factor in the trial. This meeting is productive and we are lucky enough to leave with substantive literature we can submit with our briefing.

The success of this meeting has lifted my spirits some and we get a ride back to the hotel. Francis wants to catch up on news and I turned on BBC to discover live coverage of the bombing of the UN in Nigeria. Francis is crestfallen. I go to the bar and get us some beers. I have been here for three days and the sadness of this continent is getting to me. He has been here his entire life.

Maybe food will help. We took a very long walk to an Indian restaurant Francis likes. I'm nervous but don't object. My bowels have been fine up to this point. It was quite good. We'll see.

Francis asks if I want to go out elsewhere but I am sensing he wants to be home with his family. I tell him I am tired, which is true, and since we have a long day tomorrow, I'm going to call it. He seems relieved.

Tomorrow may be the last time we have all of the attorneys together prior to the trial so there is a lot do. We need to have the affidavit prepared for Kwoyelo when we meet with him in prison on Monday.

Signing off with designs on long sleep and reaper free dreams.

-James

Thursday, August 25, 2011

Post 4: Strategy, Mysteries and Nile Specials


Day 1:
Once I got the last blog post to Amber, it was about 3 AM local here. I took a shower and went face first into my pillow. Sadly, I was up three hours later with the sun. Curiously, I didn't feel poorly and I knew that I had a zillion things to get squared away. I wandered down to the front desk to see about securing a power converter (stupid mistake on my part not to remember one). Nobody knew what I was talking about, but remarkably delicious smells were wafting my way so I shrugged off my first failure of the day to follow them (like a cartoon). What I discovered cannot go without mention:

The Coffee Terrace is an open air restaurant in my hotel which hangs over Nile Avenue. The magic they do in there makes one oblivious to the motorcycle noise, pollution, and throngs of humanity down below. The first thing I discovered was a table with local fruit and juice. The fruit are small and ugly but infinitely tastier than anything I have had in years. I loaded up on pineapple, watermelon, "passion juice," and pastries. Then a lovely woman brought me some piping hot black tea. I deliberated for a millisecond about whether the water was boiled, but told myself not to be a P-word and guzzled down two cups with some cane sugar. Next I discovered potatoes, baked beans, and samosa. Samosa for breakfast! Genius!

On my list of things to do: bathe, figure out the converter problem (laptop out of battery power), figure out my phone situation, figure out my dang room safe, and meet with Francis and Caleb for a strategy meeting at 11.

By 10:45 I am clean and suited up. But I can't make my stupid hotel phone work. I finally got through to an operator and asked her to connect with with Francis's cell phone. We were connected long enough for me to hear, "Yes, James. I will meet you....beep beep beep." Alright James, complete that sentence. We are supposed to meet at the hotel at 11. I'm sure that is all he was saying.

I packed up my gear (still can't make the safe work), and went outside in my fancy black suit to wait for him. After an hour in the sun, soaked through with sweat, desperately parched, I went back inside. I managed to convince the cranky receptionist to try to call Francis for me. She capitulated with a glower, and after three attempts we reached him. "Yes James, I said we will meet at 1 at your hotel so we can have strategy while we take lunch." Sigh.

The extra hour was well spent, as at least I got the safe operational. Still no power converter. Still phone inept.

Finally 1:00 rolls around and Francis is right on time. We are back on the Coffee Terrace and it is finally time to get to work.

First, a little about Francis. John Francis Onyango is 32 and a relatively new attorney. He spent his first years after becoming a lawyer doing human rights work with NGOs and interning with the ICC. He only actually started practicing law about two years ago. He is an idealist and he takes very interesting cases. Naturally, interesting cases generally don't pay. Ahem. He is currently representing a man who sent a "gay" text to another man. The poor soul is being prosecuted for something along the lines of moral turpitude and indecency. I am going to see if I can help get some international attention for him regarding this case as well. He also represents Somalis and Kenyans accused of participating in the terror attacks after the Uganda World Cup. Remember, these cases are infrequently what they appear on the surface. .

But I am here to work on the Kwoyelo trial. Francis hands me a huge folder full of witness statements. He sheepishly admits that he has not had the time to read through them all. No problem, I've got this. Wait, one problem, Kwoyelo's "confessions" are in his native Acholi. I need these translated ASAP. I need to parse out the other witness statements to divine which were made to local authorities, which to the ICC, and which are provided by the army and law enforcement who are generally first on the scene. (Note: At the time of this writing, I have been through the witness statements. I am disinclined to publicize my findings as I don't want to telegraph trial strategy, but I have a lot to work with here).

Next, the court has indicated that it is unwilling to hear testimony regarding Kwoyelo's pretrial incarceration and torture. My job is provide briefing regarding the inseparability of the treatment of prisoners and the fair administration of justice. Moreover, Kwoyelo's "confessions" were made while he endured torture, unspeakable conditions, and near mortal bullet wounds. I need to draft a new affidavit for him to sign regarding his treatment to submit to the court. I also need to find international support on the duty of the prosecution to produce exculpatory evidence to the defense. They have refused to do so thus far. I've got this.

Caleb Alaka finally arrives. Caleb is affable, always smiling, but never 30 seconds without his phone to his ear or leaving the table to greet someone. This does not bother me, but I am having a difficult time following whatever it is he is trying to communicate to me. Caleb is a famous attorney in Uganda. He is drawn to high profile cases.

I am starting to understand why I am here.

Francis and Caleb do not work at the same firm. This case came to Francis through the scuttlebutt at prison regarding his representation of those accused of the World Cup terror attacks. Caleb represented the LRA during the Juba Peace Talks.

Francis is getting anxious because he needs to be in court at 2:00 in an unrelated case. Caleb is insisting that we "take lunch." A proposition that is fine with me, by the way. But Francis suggests we meet later for drinks and further discussion and he rushes off. Caleb tells me that he wants to work with me on some of his other international cases. To wit, he has a case where targeted sanctions were made against his client regarding his business operations and the sale of arms to the DRC. Fascinating, but lets take one trial at a time, shall we? And let's "take" this lunch that you speak of.

We are up and on our way to another delightful buffet of African goodness when he stops me and directs me to another table where there is a beautiful woman with blue hair and lots of jewelry enjoying some soup. The soup looks good. Caleb gushes, "James, this is my spouse!" She slowly raises her eyes, looks unimpressed, and returns to her soup after a brief handshake with me. Caleb is very excited. "We will take our lunch with her!"

Lunch consisted of creamy coconut soup, maize bread, fried fish, rice, potatoes, some lentil delight, and banana something or other with purple oddity sauce. Yum!

Back to the table. Caleb is off the phone and lost interest in everything besides the food (including his phone, which pleases me). I manage to get some conversation from his girl. She is an "artist." Her name is Jackie. (Note: I learn later that Jackie is a local celebrity pop star). Caleb tells her through his roll that I am an American attorney here to work on the Kwoyelo trial. Her eyes narrow at that. "Everyone in Uganda will hate you for this."

Nice.

Caleb just laughs. "She does not like lawyers."

After lunch, Caleb proves useful to me. He takes me to a phone shop and hooks me up with a phone and a sim card so I can finally get connected. He hooks me up because I have a money problem. Nobody will take my business card. This is a cash only place. Problem is, I can't get cash either. Long story, but Jackie even called a banker her friend who advised he could not help because they don't have Mastercard services. This is a problem I had not anticipated. It appears I need to find a bank somewhere that can somehow get me cash. Put that on the list.

But now it is about 3:00 and I have 4 hours before we are to meet for drinks. Caleb is supposed to call me at 6. Francis is to call at 7. I plopped back onto the hotel bed with the witness statements and dove in. Though I am reading about the worst possible things, I am asleep in about 20 minutes.

My phone wakes me up at 7:30. It's Francis. He is having a drink by my pool with some journalists waiting for me. I leap up, gave my teeth a quick brush, and rush down to meet them. I am excited about the journalists, but they appear disinterested in our doings. Oh well.

Francis suggests that he and I leave the hotel and get to a proper restaurant and bar. More food? I thought this trip would make me super skinny. We wonder down the road a ways dodging speeding motorcycles. This place is outdoors and nice, but I have already forgotten the name. It's about 8:15 and Francis calls Caleb. Caleb says he'll be there in ten minutes.



Two hours later, I am four big Nile Specials to the wind and Francis is my new bestie. Caleb does not call or show, which embarrasses Francis. I don't mind, as Francis and I had an amazing conversation about our lives, our experiences, our ambitions, our new-found bestiness, and plans to form an international partnership between our firms so we can get on the ICC's list of defense teams so we can take more cases and actually get paid for them.

Francis muses that there have been few prostitutes about, which is odd since I am staying in the red light district. Funny, the hotel purports to be in the "business" district. I didn't think much of the comment, but the Nile Specials were giving me bladder angst so I excused myself to find the bathroom. I don't know where I am going, but I pass through the restaurant part and into the bar. Mystery of the missing hookers is solved. They descended upon me from every direction. Though I am normally fine with fawning, I dislike being pawed at. Particularly by so many strange paws. They were unsympathetic to my protests and Francis was not looking in my direction. Finally, I convinced one nice stout girl that I could assure them that I would be of no use to anyone unless I made it to the bathroom. She firmly grasped me by the arm and showed me the way. She assured me she would be waiting for me when I was done. Yikes. Stupid Nile Specials. How do I get out of this one?

True to her word, her stoutness was waiting for me outside the bathroom door. I was only able to pull away from her so far with meek protests like, "I am in a meeting!" "I don't have any cash anyhow and I know you don't take mastercard!" Then the others were back on me and I was encircled again. Thankfully the restaurant manager (who earlier admonished Francis for being drunk under the table by an American), marched over to assist me. The girls scattered like Orcs in the presence of the Balrog (that one is for my geeky friends). I expressed my gratitude for the rescue.

Back at the table I told Francis about the ordeal. He shrugged, "Why do you care? You are not married." Sheesh.

But, Francis is awesome. While I was being molested he had summoned a taxi and sent him to find me a power converter. Hooray!

One more drink, some fried tilapia, and we call it a night. I make it back to the room, charge my computer with my pimp ass new power converter, catch up with some people back home, and settle in with a smile and the sounds and smells of Kampala.

Wednesday, August 24, 2011

Post 3: Travel

Travel:

What to say about the last 24 hours? Apologies in advance for what is sure to be incoherence due to my lack of sleep and wonderment at this experience already:

I was anxious and nervous on my way to Seatac. That said, I forgot I am good at this travel thing. Flying to Amsterdam was a breeze...kind of literally. I sat next to an attractive woman but she had a curious tendency towards flatulence. Could be worse, I suppose.

Oh, the merits of nicotine gum are overstated.

Amsterdam to Africa was a bit worse. Upon takeoff we were struck by lightning. Kind of thrilling for me as it reminded me of my navy days. Not so for the babies on board, as the flash and bang triggered a cacophony of wailing (that lasted an unnatural and unnerving length of time). Yes, I was in the screaming baby section. And though my row mate on this flight was kind of enough not to poison the recirculated air, he did take considerable liberties with my arm rest and leg room. A la Larry Craig, if you get my drift. I would have asked him if he just had a wide stance but he didn't speak English. Again, my thought at the time was it could be worse. We didn't have to redirect to Amsterdam from the lightning and things were more or less going according to plan.

Until dinner, that is. KLM is nice, for sure. They fed us a lot. But the trays are big and everything is covered in plastic. This ultimately dampened my row mate's romantic designs on me as his hand slipped off the plastic covering of his odd-looking pudding, swiftly launched his tomato juice off its perch subsequently and duly dousing both of us. He was horrified, I was dismayed, and the steward off-put (remember screaming babies). I would have been substantially more irritated but I recall having done the same thing with a bloody mary a few weeks ago in an ill fated effort to save a slipping pickled green bean. Again, could be worse. Red-faced-would-be-romancing-Hollander apologized many times and did not again make arm or foot contact or invasions. The arm rest was mine! He beat a hasty retreat when we landed in Kigali, but left me with the job of handing over the tomato-soaked aftermath to the clean up crew. Of course it is all over me, so their horrified impression was they were cleaning up my vomit. I shrugged and said, "Tomato juice. Are you going to believe me or your lying eyes?" They believed their lying eyes.

Oh, that lightning thing. That warranted a two-hour on ground inspection in Kigali. My concern at that point was that my contact in Kampala was simply going to quit this whole affair and abandon me. Thankfully, when we finally got here, Francis was waiting for me. Customs was a breeze.

I am very impressed with my new colleague. He is tall and handsome. His shoulders droop a little and he is soft spoken. He chooses his words carefully and thoughtfully. I will enjoy working with him. Meeting the other attorney tomorrow for our initial strategy session. It appears that we have a lot to work out on how best to proceed.

It was hard to remain focused (exhaustion aside) when there is so much to take in even in the middle of the night. Beautiful people, women with baskets on their heads, drivers that put the Thais to shame (my vet friends know what I'm talking about), abject poverty. My hotel is in the middle of downtown surrounded by prostitutes and armed police. My room is, however, huge. And beset with roaches. Could be worse. I shared a bed with roaches in Prague. Maybe I convince them to bathe regularly, be mindful of my things, and we will all get along.

That's it for now. I have tomato juice and travel filth to rid myself of. I have been in the hotel long enough to write this (it's 2 AM here). Time for a shower and the real adventure to start tomorrow. I am, all in all, so thrilled to be here.

-James


Thursday, August 18, 2011

Post 2: How the hell did we get involved?


It was a leisurely evening on the beach on July 18th when my friend, Jessica Krepps, sent me a text message asking if I knew anything about war crimes. This is not the normal segue into our usual banter. I responded along the lines of, “Um, well, I studied international war crimes in Prague many years ago.” That’s how this all started.

The following day Jessica’s husband, Chad (a student at Willamette School of Law), forwarded me an email from a professor spelling out the needs of a Ugandan defense team representing the alleged war criminal, Thomas Kwoyelo. Ever the fan of interesting and adventurous things, I emailed one of the attorneys in Africa. I spelled out who I am, my (limited) experience, and enthusiasm for their project.

Side note, why enthusiastic? I am a champion of the fair administration of justice (due process, habeas corpus, etc). Some of my criminal defense friends think I am idealistic and na├»ve (that means you, Joseph Evans). Nevertheless, having learned that this is the first time a war crimes trial is being tried under the Geneva Conventions with the blessing of the International Criminal Court, how could I not be intrigued? Moreover, it was immediately apparent to me that there were glaring problems with the government’s case.

So yes, I wrote to one of the defense attorneys (there are two) and I did not expect to hear anything more about this. Why on earth would they select a trial lawyer from Seattle to get involved in a case of this magnitude?

So, I was sleeping soundly in advance of a business trip to Vancouver, B.C., when my phone alerted me to a new email about 2 A.M. Squinting through one eye at my phone I read, “Greetings from Uganda, We are happy to work with you on our team…when would you be available to travel?”

What? Wake up.

So much for sleep. Did I read that right? Read it again, James. Holy crap! I need to call my mother. Shit. It’s the middle of the night.

Still, I’m me. My understanding is that male brains do not fully develop until they are in their mid to late 20’s. One consequence of said delayed development is the actual inability to properly comprehend the consequences of hasty decisions and one’s impermanence in the world. It’s much easier to make an 18-year-old rush a machine gun nest than it is a 40-year-old. Essentially, boys are brain damaged. But I’m 36. Sure, I joined the Navy when I was 18 without thinking about it but it is excusable because I was brain damaged. By now I should have a fully developed brain. Nevertheless, I said yes before I considered the ramifications. I have a full caseload. I have cases in litigation. I have a cushy lifestyle on Alki Beach. I remember reading that the defense has been denied access to government resources. I guess we will be footing the bill for a lot of this. But wait; does this make me the lawyer version of Indiana Jones? I’m in. And, it appears, still brain damaged.

Thankfully, my law partner, Matt Hale, is as excitable and brain damaged as I am. He endorsed this project the moment I told him about it.

Wait. Do I need shots? Medicine? Yes. Crap. My passport expired in May. Crap. Do I need a visa? Yes. Crap. Do I have to have an itinerary before I can get my passport expedited? Yes. Crap.

Thankfully, being a veteran, I have had A LOT of vaccinations in my time. That said, I needed yellow fever shot (left arm rendered decrepit for three days) and malaria pills. The doctor also gave me another prescription. I asked what for? He said, “In case you get excessive anal bleeding and diarrhea, take these pills”. WTF? What qualifies as “excessive” anal bleeding?! If I have any anal bleeding I will be in an absolute panic! So I go to the pharmacy. Pharmacist says, “Oh. Are you going somewhere where you might get sick?” I say Uganda. She says, “Yup. You are going to get sick.” Ack! And what is the last thing a former professor of mine (who has done extensive work in Uganda) says to me? “James, just accept now that you are going to get sick.” Ugh.

In denial of these curses, I blew the dust off of my old international law books and dove in. My first tasking was to find international support to justify the argument that Kwoyelo should have been granted amnesty pursuant to equal protection (see previous post). This issue is now under review by the Constitutional Court.

I have been advised that I should address the question, “How can you defend someone accused of such horrible things?” I mentioned my fervent belief in the fairness of the process earlier. You can also read Matt’s post on our Facebook page. But there is more to it in this case. As I understand the facts, the accused was only 13-years-old and walking to school when he was abducted and indoctrinated into the Lord’s Resistance Army (LRA).

Think about it. Ever see Blood Diamond? If not, watch it. He was a child. A child turned soldier. The things these children are forced to do are beyond comprehension. It becomes the only life they know. Further, the ringleaders of the LRA are still at large. Why is a mid-level soldier being tried for the horrors those above him orchestrated (yes, I know about how this defense failed at Nuremberg and Tokyo)? However, when 26,000 amnesties have been granted, including people that outrank our client, something is awry. Additionally, war is an economic necessity in Africa. It’s a sad fact of life. Is it the case that the ringleaders remain at large because the government needs to keep a war on? But in international eyes, do they want to make it look like they are making someone accountable while the fighting continues? Believe me, I want the answers to these questions. The world needs to know.

Well, the ticket is purchased, I should get my passport and visa back from the Ugandan Embassy today. I have a ride from the Entebbe airport. Still working out lodging, but it looks like that is falling into place as well. Flying out on Monday. This time next week I’ll be in a Ugandan prison. Never thought similar or remotely similar words would ever escape my mouth. Maybe I am brain damaged. But I’m still wondering how the hell I got involved in this.

Wednesday, August 17, 2011

War Crimes Blog Post 1 (Background):

Picture from Kwoyelo's Capture

From Human Rights Watch:

Thomas Kwoyelo’s trial before Uganda’s International Crimes Division

Questions and Answers

July 2011

1. Who is Thomas Kwoyelo?

Thomas Kwoyelo is a former combatant in the Lord’s Resistance Army (LRA), who is from Pabbo in the Amuru district of northern Uganda. The LRA is a Ugandan armed group that has engaged in a twodecade-long conflict with Ugandan government forces, mostly in northern Uganda beginning in thelate 1980s. In late 2005, LRA fighters crossed into the Democratic Republic of Congo (DRC) and sincethe end of 2008, LRA fighters have been moving, splintered into small groups, between DRC, Central African Republic and Sudan. During the conflict, both parties have been implicated in committing extensive abuses against civilians. In March 2009, Kwoyelo was injured and taken into custody following fighting between the Ugandan army and LRA combatants in Ukwa, DRC. He was subsequently taken to Uganda for medical treatment of his bullet wounds. The Ugandan government has stated that at the time he was taken into custody, Kwoyelo held the rank of colonel in the LRA. In Uganda, Kwoyelo was held in the custody of military intelligence for approximately three months in an undisclosed location.

2. What are the charges Kwoyelo faces?

Kwoyelo was initially charged in June 2009 with crimes under Uganda’s penal code before being transferred to the regular prison system. In August 2010, Kwoyelo was charged with violations of Uganda’s 1964 Geneva Conventions Act, including the grave breaches of willful killing, taking hostages, and extensive destruction of property in the Amuru and Gulu districts of northern Uganda. Since then, he was held for a time in Gulu Prison and was later transferred to Luzira prison, a maximum security facility near Kampala, where he has been for the majority of his detention. The maximum penalty under Uganda’s Geneva Conventions Act for the grave breaches of willful killing is life imprisonment. The maximum penalty for the other crimes is 14 years in prison. The trial will be the first for war crimes under the Geneva Conventions Act since it was passed in 1964.

3. What is the International Crimes Division?

Kwoyelo is the first person to be tried by Uganda’s new International Crimes Division (ICD), a division of Uganda’s High Court. Initially known as the War Crimes Division, it was set up in 2009 by the Ugandan government as part of its efforts to implement the 2008 Juba peace agreements between the Ugandan government and the LRA. The division has the authority to try genocide, crimes against humanity, war crimes, terrorism, human trafficking, piracy and any other international crime defined in Uganda’s Penal Code Act, the 1964 Geneva Conventions Act, the 2010 International Criminal Court Act (ICCA), or any other criminal law. The ICCA—which defines crimes against humanity, war crimes, and genocide as domestic offenses in Uganda—does not contain any explicit provision stating that it can be applied to crimes committed before the law’s enactment in June 2010, and so according to Uganda’s Directorate of Public Prosecutions (DPP), it should not be. This would severely restrict its use to prosecute crimes committed during most of the conflict in northern Uganda. The division may sit as a bench of three judges.

4. What other cases are currently before the International Crimes Division?

No other cases have currently reached trial stage before the International Crimes Division. One case involving charges of human trafficking has reached preliminary hearings, but further hearings have been adjourned until October 2011. The government has said that the trial of at least 18 people charged with responsibility for the July 11, 2010 Kampala bombings will take place before the ICD, but the date for that trial to begin is not known. It is not clear if Uganda’s Directorate of Public Prosecutions plans to bring charges against other members of the LRA. At least one alleged LRA member, Okello Mission, has been in the custody of Ugandan military intelligence since March 31, 2010 although the legal basis for his ongoing detention has not been stated. Plans for his release or prosecution are not known, although international law requires that anyone arrested on suspicion of having committed a criminal offense be either promptly charged and brought to trial or released.

5. Where and when will Kwoyelo’s trial take place?

Kwoyelo’s trial is scheduled to open on July 11 in Gulu, northern Uganda. Holding the trial in Gulu can have important benefits by increasing its visibility and resonance with the communities that were most affected by the crimes committed during the conflict. At the same time, locating the trial in this area may increase security risks for judges, division staff, and the accused, along with heightening challenges to protect witnesses.

6. How long will the trial last and what are the preliminary issues for the court to address?

It is unclear how long the trial will last. Cases involving war crimes and crimes against humanity tend to be complex, because of the range of incidents and extended time period involved in the charges. The prosecution has suggested that it will call approximately 80 to 90 witnesses to testify, and we understand the trial’s court facility has initially been designated for one month for the trial.

As this is the first time that a trial will take place before the International Crimes Division, and the first time that a prosecution is taking place under the Geneva Conventions Act of 1964, the defense may raise a number of potential preliminary legal challenges, which could extend the duration of the trial. For example, the defense may consider a constitutional challenge to the establishment of the division or whether any of Kwoyelo’s constitutional or other rights are violated by trying him before it. There is also the question of whether Uganda’s Geneva Conventions Act, which provides that it applies when the conflict is between two states, can be properly applied to Kwoyelo’s alleged conduct. Such challenges could result in a recess soon after the trial starts, until the judges decide on them. If any of these challenges are sent to the Constitutional Court, then the timing of the trial will depend on hearings and rulings by that court.

7. Why has Kwoyelo not benefited from Uganda’s amnesty law, as have other LRA combatants?

Uganda’s Amnesty Act provides that people who meet the amnesty requirements (which include renouncing and abandoning involvement in the war or armed rebellion), cannot be prosecuted or punished for crimes covered by the act in Uganda. Since 2000, 12,906 people affiliated with the LRA have been granted amnesty. This represents almost half the beneficiaries of the amnesty law. The other amnesty beneficiaries are from other armed opposition groups.
According to the Amnesty Commission, Kwoyelo applied for amnesty under the Amnesty Act in 2010. The commission referred the case to the Directorate of Public Prosecutions as required under the act when individuals are in custody, for determination of eligibility. The DPP has not responded to the Amnesty Commission’s request for such a determination, raising some questions about the arbitrariness of the process. Kwoyelo is the first member of the LRA to be in this situation, to our knowledge. Some critics of the International Crimes Division have claimed that the fact that Kwoyelo has not been granted amnesty and is to be prosecuted is politically motivated, given that so many other LRA commanders have benefited from the domestic amnesty. For example, the former LRA high-ranking commanders Brigadier Kenneth Banya and Brigadier Sam Kolo Otto, as well as Lt Col. Opio Makasi, who served as the LRA director of operations, have all received amnesty under the act over the last several years. Several other LRA members who applied for amnesty were not prosecuted and instead joined the Ugandan army to fight the LRA. Amnesties for crimes such as war crimes and crimes against humanity run counter to international law and practice, which rejects impunity for the gravest crimes. International and hybrid international-national war crimes courts outside Uganda have rejected amnesties for serious crimes.

8. How does Kwoyelo’s trial interface with investigation and prosecution by the International Criminal Court of crimes committed in northern Uganda?

The prosecutor of the International Criminal Court (ICC) opened an investigation into the situation in northern Uganda in July 2004 after the government of Uganda referred the situation to the court in December 2003. The ICC has issued arrest warrants for war crimes and crimes against humanity for five LRA leaders: Joseph Kony, Vincent Otti, Okoth Odhiambo, Raska Lukwiya, and Dominic Ongwen, for conduct that allegedly occurred in 2004 and 2005. Lukwiya and Otti have since died. The other suspects are fugitives from the court. There is no formal legal relationship between the ICC’s cases against Kony, Odhiambo, and Ongwen and the Ugandan International Crimes Division’s prosecution of Kwoyelo. Kwoyelo has never been subject to an arrest warrant by the ICC and was never a fugitive from ICC prosecution. However, the ICC prosecutors and the Ugandan prosecutors have cooperated and exchanged information regarding their investigations. The Ugandan government and the LRA agreed to domestic trials of serious crimes during the 2006-2008 Juba peace talks as a possible alternative to ICC prosecutions of the LRA ICC suspects. Whilethe final peace agreement was not concluded, the Ugandan government has moved forward to begin domestic trials of serious crimes via the establishment of the International Crimes Division.When national courts are able and willing to investigate and prosecute serious crimes, the ICC allows and actually favors national trials of these crimes. In addition, the ICC prosecutor has to date only brought forward a limited number of cases as situations under ICC investigation.

9. Is Kwoyelo represented by defense counsel?

Kwoyelo spent over 18 months in custody without any legal representation. Since November 2010, Kwoyelo has been represented by private lawyer Caleb Alaka. The defense has not had access to any state funds to carry out investigations.

10. What fair trial standards apply to Kwoyelo’s prosecution?

All criminal trials should include: credible, impartial and independent investigation and prosecution; adherence to international fair trial guarantees; penalties that reflect the gravity of the crimes; and adequate witness protection. Domestic war crimes prosecutions should also consider outreach to communities most affected by the crimes; and due regard for victims to involve themselves in proceedings. International standards do not provide for the death penalty as a sanction. The work of the International Crimes Division to date creates a number of concerns, including:

• Kwoyelo’s counsel has not had clear information regarding available resources to conduct his defense, and as of June 21, 2011 had no access to prosecution witness statements—for which timely disclosure can be essential to defense preparation.

• Whether adequate interpretation will be available at the trial is unclear. Although a number of languages are likely to be used at the trial, including at least English and Luo, Uganda has no professional interpretation and translation system. Currently, Ugandan courts call on anyone who can speak the relevant language (such as guards and court clerks) to interpret, which can create wide variation in the adequacy of interpretation and translation.

• Whether adequate witness protection and support will be provided is unclear. Uganda has no formal witness protection program, and as of March, there had been no assessment of risks for individual prosecution and defense witnesses, or of what support and protection would be required. Potential witnesses may be traumatized and face security threats due to their testimony.

• Outreach and public information about Kwoyelo’s trial in the lead-up to its opening has been minimal, although some outreach activities were previously conducted about the division’s work. Even Kwoyelo’s defense attorneys were not aware of the trial’s opening date until the third week of June. In September 2007, Human Rights Watch issued a memorandum on particular challenges for Uganda in conducting national war crimes trials, which highlighted additional areas of concern, including insufficient definitions and forms of liability under Ugandan law for serious crimes in violation of international law, weak investigative and prosecutorial capacity of Uganda’s justice system, and past incidents of attempted interference by the executive with the judiciary. A detailed assessment of many areas for improvement by the International Crimes Division was commissioned in March by Uganda’s Justice, Law and Order Sector. A copy of the assessment is on file with Human Rights Watch.

11. Will the International Crimes Division be able to prosecute the LRA commanders Kony, Ongwen and Odhiambo, who are wanted by the ICC?

It is not clear if the division could or will ever prosecute those wanted on ICC arrest warrants. One issue is whether the Directorate of Public Prosecutions might expand the application of the International Criminal Court Act to events prior to the law’s enactment in June 2010. ICC judges have previously rejected claims that domestic proceedings replace the ICC’s cases if the charges were not precisely those before the ICC. Ugandan officials have suggested that applying the Ugandan International Criminal Court Act to events prior to 2010 would violate the principle that people shouldnot be prosecuted for actions that were not crimes at the time they were committed. However, under international law that principle does not prevent the prosecution of genocide, war crimes, and crimes against humanity because those crimes were prohibited conduct under international treaty and customary law that was binding on Uganda prior to 2010 even if they were not explicitly defined in domestic Ugandan law. If Ugandan prosecutors brought charges against Kony, Ongwen and Odhiambo and sought to have the ICC’s cases replaced by these domestic cases, ICC judges would determine whether the domestic prosecutions meet the ICC’s requirements to replace ICC cases. In October 2008, the ICC judges on their own initiative assessed whether domestic proceedings should oust the ICC’s jurisdiction to prosecute the LRA-related cases before it. The judges found that national proceedings were not sufficiently established at that time to warrant the exclusion of the ICC. Ugandan government officials have suggested that the International Crimes Division will try crimes committed by the LRA, but Uganda’s military courts will try cases involving crimes committed by Ugandan forces. Ugandan armed forces are implicated in extra-judicial executions, torture and other serious crimes committed during the northern Ugandan conflict. Human Rights Watch has repeatedly raised concerns that there has been insufficient accountability before military courts for crimes committed in northern Uganda, and has suggested that the division is best placed for domestic trials of serious crimes committed by both LRA and Ugandan forces.

12. Are traditional justice methods being applied alongside the ICD?

Traditional justice processes have been a major issue in discussions over accountability for serious crimes in Uganda. While traditional justice processes may provide an important complement to prosecutions, they are not a substitute for them. It is unclear whether traditional justice processes may be pursued for Kwoyelo in addition to prosecution.