Dominic Ongwen and the slow-grinding wheels of the International Criminal Court


On 6 January, 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 (CAR). The man identified himself as Dominic Ongwen, wanted by the International Criminal Court (ICC) for alleged crimes against humanity and war crimes—murder, attacks on civilians and enslavement—in northern Uganda in 2004.

In the week since, intense negotiations have apparently been taking place on what to do with Ongwen, given that he is a Ugandan in the custody of the US government in the CAR—where the armed group Seleka, having claimed itself to have handed him over, has demanded the $5m rewarded offered by the US government for his arrest.

As suggested by Mark Kersten, the best way out for Uganda—given the criticism by its president, Yoweri Museveni, of the ICC and the fact that the US is not a state party—would be for a third party to submit him to the court. On 13 January the Ugandan armyannounced that Ongwen would be transferred to the ICC by CAR authorities.

There would be problems in trying Ongwen in Uganda, where an amnesty law, enabling any rebel to obtain immunity from prosecution if they so elect, remains effective until May this year. In a radio broadcast from the CAR on 12 January, Ongwen claimed that he had indeed received an amnesty. This was denied by the Ugandan government but it had failed to pass a motion to exclude Ongwen and other LRA commanders from amnesty. Any such provision would not however affect his indictment before the ICC.

It is questionable in any event if Ongwen could be guaranteed a fair domestic trial. Uganda does have a specialised International Crimes Division (ICD) to prosecute war crimes and crimes against humanity. But there are simply too few experienced defence lawyers to ensure defendants’ rights and a draftwitness protection law has yet to be passed by the Ugandan parliament. Moreover, the first and only LRA trial in the ICD in 2011, of commander Thomas Kwoyelo, collapsed after his prosecution was successfully challenged in the Constitutional Court, over the denial of his application for an amnesty.

Justice delayed
A trial at the ICC for Ongwen is likely to be at least two years away. The former Congolese warlord Bosco Ntaganda, who similarly surrendered to the US in Rwanda is March 2013, is only going to trial at the ICC in June. In the meantime defence counsel will need to be arranged, a chamber established and charges against Ongwen will need to be confirmed.

As the Ugandan government has consented to his transfer to the ICC, it is unlikely to challenge it under ‘complementarity’ (the provision for alternative domestic prosecution). Despite sovereignty arguments and Museveni’s claim that the ICC is anti-African, Kampala is unlikely to be willing to foot the bill for an internationally scrutinised trial of Ongwen.

If the charges against him are confirmed by a pre-trial chamber of the ICC, the case will proceed to trial. The ICC Office of the Prosecutor may seek further charges in connection with crimes committed since 2005 in CAR and the Democratic Republic of Congo—including the notorious 2008 Christmas massacres, in which the LRA killed more than 600 Congolese—though resource constraints on the office may militate against this.

Ongwen may argue that, as a former child soldier, he was under duress to commit any atrocities to which he might admit. But he was an adult commander in 2004 and the actions of which he is accused—including mass killings and enslavement—would be unlikely to meet the standard of a ‘proportionate response’ to any threat he had faced. If he were to be convicted by the ICC, however, Ongwen might seek to have his sentence mitigated on such grounds.

While initial proceedings will occur in the seat of the ICC in The Hague, it can still hold the trial in Gulu, northern Uganda, under article 62 of its founding Rome Statute. This would allow victims and the affected community to participate and ‘see justice done’. The region has been relatively peaceful since the LRA left the country in 2006 and the location should not pose any serious concerns.

Undoubtedly in the coming months we will see the ICC carrying out outreach in northern Uganda, with investigators contacting witnesses and greater visibility for the work of the court’s Trust Fund for Victims. Rather than hand over the $5m reward to Seleka—also being investigated by the ICC—the US government would be better donating it to the fund.

Justice limited
Yet the prosecution of Ongwen, whatever its outcome, will not bring justice to the hundreds of thousands of victims of the conflict. The charges against him are (so far) very specific in time and place but the conflict raged from 1986, involved the Ugandan government and spread into neighbouring countries. And while 41 victims are already registered, any reparations by the court are likely to be at least five years away.

As Ongwen is likely penniless, reparations will probably be facilitated through the ICC fund. In the meantime, the Registry of the court faces processing thousands of applications, supplied since 2005—and many applicants may be dead or difficult to trace, having moved from camps for the internally displaced.

While some victims may welcome the prosecution of Ongwen, many believe that the Ugandan government is neglecting them by not delivering redress, having failed to protect them from the LRA or its own forces. Atrocities were committed in the counter-insurgency campaign, including extrajudicial executions and forcible displacement of the northern Ugandan population to ‘protected villages’. The Ugandan government has also been implicated in atrocities committed in the DRC, including vis-à-vis the Lubanga case at the ICC.

Justice for the victims of the conflict cannot be secured by criminal trials alone. A comprehensive approach is needed, including accountability, truth and reparations for all victims—not just those few who can participate and receive reparations from the ICC. The trial of Ongwen may at least draw desperately needed attention to their plight, putting international pressure on the Ugandan government to implement its long-awaited transitional justice policy.

Luke Moffett is a lecturer at the School of Law, Queen’s University Belfast. His Justice for Victims before the International Criminal Court is forthcoming from Routledge. 

This article originally appeared on openGlobalRights.