On January 6 2014, the US State Department reported that a Lord’s Resistance Army (LRA) commander had handed himself in at an American base in the Central African Republic. The man identified himself as Dominic Ongwen, who is wanted by the International Criminal Court (ICC) for crimes against humanity and war crimes for murder, attacks on civilians, and enslavement in Northern Uganda in 2004.
Ongwen is the first of the ICC’s Lord’s Resistance Army indictees to be apprehended. Three other LRA indictees have been killed, with only leader Joseph Kony still at large. Interestingly, it has been suggested that Ongwen was abducted as a child on his way to school, and as Erin Baines noted, the first known person then to be charged with the same war crimes of which he is also a victim.
The conflict between the Ugandan government and the Lord’s Resistance Army raged in Northern Uganda for 20 years from 1986 to 2006. More than 200,000 civilians were killed, and tens of thousands abducted. They were used as soldiers or porters by the LRA, or in the case of women and girls, as sex slaves. Most of the 2m population of Northern Ugandan were forcibly displaced from their homes.
While a peace deal in Juba in 2006 saw the LRA leave Uganda, the group set up a base in the neighbouring Democratic Republic of Congo. Peace talks collapsed in 2008, with the LRA citing fears of arrest warrants issued by the ICC and Kony’s unwillingness to surrender. Soon afterwards, the LRA began attacking civilians in the DRC and Central African Republic. Since then, Uganda, the US and other central African states have all been involved in hunting down the LRA in the vast central African jungle.
Ongwen’s capture is a rare advance in that effort – but the question of how to proceed is fraught with confusion and risk.
Victim and perpetrator
If Ongwen is transferred to the custody of the ICC, the court can hold the trial in Gulu, Northern Uganda under Article 62 of the Rome Statute.
In the trial, Ongwen may argue that as a former child soldier, he was under duress to commit atrocities. However, as an adult commander this defence is unlikely to work, since to prove crimes were committed under duress, a defendant has to demonstrate they were a “proportionate response” to that duress. Crimes against humanity of mass killings and enslavement are unlikely to meet this standard.
What Ongwen might hope for is to have his sentence reduced, due to his past victimisation – but the ICC may also seek further charges against him for crimes committed since 2005 in the DRC and Central African Republic, including the notorious 2008 Christmas massacres in which the LRA killed more than 600 Congolese. This would only add to the enormous weight against him.
But as Mark Kersten pointed out, Uganda may itself be able to prosecute Ongwen. The Ugandan government handed the case over to the ICC in 2003 because of its inability to apprehend LRA commanders, not a lack of willingness or ability to prosecute them. And the Ugandan government has established an International Crimes Division to investigate and prosecute international crimes.
Holding the trial in Northern Uganda would allow victims and the affected community to “see justice done” and participate more easily. Northern Uganda has been relatively peaceful since the LRA left the country in 2006, and should not pose any serious concerns for ICC proceedings.
Uganda still has an amnesty law in place, however, which allows any rebel to obtain immunity from prosecution if they so choose. It will be in effect until May 2015. This means that if Ongwen is transferred back to Uganda before then, he can apply for an amnesty to avoid prosecution.
There’s precedent for this: the first and only LRA trial to take place at Uganda’s International Crimes Division in 2011 was that of commander Thomas Kwoyelo, never indicted by the ICC. That trial collapsed after his prosecution was challenged in the Constitutional Court, citing his application for an amnesty.
Seeing justice done
For Ongwen, the ICC could simply wait until June 2015 to transfer him to Uganda, when the amnesty law has lapsed. President Museveni has been a very vocal critic of the ICC in light of the court’s failed case against Kenya’s President, Uhuru Kenyatta. It is likely that Museveni will want Ongwen to be tried in Uganda to demonstrate that African states can deliver fair justice.
The prosecution benches and judges at the International Crimes Division are well trained in international law, but there’s an acute shortage of the sufficiently experienced defence lawyers needed to ensure a fair trial. Uganda’s drafted witness protection law, meanwhile, has yet to be adopted.
What the prosecution of Ongwen will not do is bring justice to the hundreds of thousands of victims of the Northern Ugandan conflict.
Many victims have themselves been abducted, killed, tortured or raped, or seen the same happen to family members. Many continue to live with physical scars, psychological trauma and in abject poverty as a result of the LRA’s atrocities. And given the overlap between victims and perpetrators and the huge numbers of both, many in Uganda have argued that prosecuting child soldiers is inappropriate and impractical.
The ICC case will allow victims to participate in proceedings with their own lawyers, and 41 victims have already been granted the right to participate in the Ongwen case and claim reparations; thousands of applications still remain unprocessed by the court. But if Uganda tries Ongwen in its International Crimes Division, victims will only be allowed to appear as witnesses, with no right to claim reparations.
Beyond the courtroom
While some may welcome the prosecution of Ongwen, many believe that the Ugandan government failed to protect them from either the LRA or its own forces, and that it is still neglecting them by not delivering reparations. The Ugandan government committed its own atrocities in its counter-insurgency campaign, including extrajudicial executions and forcibly displacing the Northern Ugandan population to “protected villages”.
The Ugandan government has also been implicated in atrocities committed in DRC, including in the Lubanga case at the ICC.
But what the ICC case against Ongwen could do is draw desperately needed attention to the plight of Northern Ugandan victims, putting international pressure on the Ugandan government to implement its long-mooted Transitional Justice policy. And as a senior commander, Ongwen could be the key to finding out what happened to many Northern Ugandans abducted by the LRA and never returned to their families.
What must be remembered above all is that justice for the victims of the Northern Ugandan conflict cannot be secured by criminal trials alone. They need a comprehensive approach including accountability, truth and reparations from all the parties at whose hands they suffered.