Reparations central in determining success in Ongwen case

International Justice Monitor
In this post by International Justice Monitor, author Linor Owor Ogora argues that the upcoming trial of former Lord's Resistance Army commander Dominic Ongwen on 6 December, 2016 presents the best opportunity for victims in Uganda to receive reparations, but only if the accused is found guilty.

Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) has been in the custody of the International Criminal Court (ICC) since January 2015 on charges of war crimes and crimes against humanity. Ongwen’s trial, due to commence on December 6, 2016, presents the best opportunity yet for victims of conflict in northern Uganda to receive reparations but only in the event that Ongwen is found guilty.

As ICC Outreach Coordinator for Kenya and Uganda Maria Mabinty Kamara explained in a conversation, ”Reparations can be ordered by the court only after the trial is concluded and if the accused is found guilty. In such eventuality, the court may issue an order for reparations to victims of the crimes and to establish the monetary liability of the convicted person for their crimes. Reparations for victims may be individual, collective, or both. The form and manner of reparations is dependent on a number of factors including the scale and scope of the crimes in the conviction, the number of victim harmed by the crimes, and the source and magnitude of funding for reparations are among the important factors to be considered by the court when deliberating reparations.”

Setting aside that it may still take several years to come to a conclusion about reparations in the event of a conviction, as evidenced by the first ICC trial of Thomas Lubanga, this article looks at what victims in northern Uganda would ideally like from a reparations program.

Uganda as a country has been ravaged by different conflicts since attaining independence in 1962. The longest and most brutal of these conflicts has been the war between the LRA and the government of Uganda, in which Ongwen is alleged to have committed the crimes with which he is charged. However, despite the intensity of human rights violations, destruction, and loss of property that has marred Uganda’s history, there has never been a formal reparations program developed and implemented by any government.

Reparations for victims of the LRA war and debates surrounding it have always been a topic very much shunned by the current government in Uganda. Post conflict development programs, such as the Peace Recovery and Development Plan (PRDP) for northern Uganda, have been criticized for overly focusing on development programs at the expense of peace building programs that include reparations. For example, one of the most important pillars of the PRDP on peace building and reconciliation constituted only 2.7 percent of an entire budget of $606 million. Matters are not helped by the fact that Uganda lacks a reparations policy despite its violent past.

The prospect of reparations presented by the Ongwen case before the ICC is the first real opportunity that victims in Uganda will have had to benefit from a formal reparations scheme. This is why reparations will be crucial in determining the success of the trial. Already, thousands of victims have registered to participate in the trial of Ongwen, a clear sign that they are looking forward to reparations.

The UN basic principles and guidelines on the right to a remedy and reparations calls upon states to make available adequate, effective, prompt, and appropriate remedies, including reparations for victims of gross violations of international human rights law and serious violations of international humanitarian law.

Article 75(1) of the Rome Statute of the ICC stipulates that “The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”

Rule 97(1) of the ICC Rules of Procedure and Evidence further states: “Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.”

While the above guidelines and rules establish general principles on reparations, they do not explicitly provide a breakdown of the type of reparations that victims are entitled to. The ICC has started to consider and make decisions in relation to reparations in other ICC cases, but those decisions are related to the specific circumstances to each case. Therefore, the court will have to consider many different options when it comes to providing reparations for victims of Ongwen’s alleged crimes, provided that Ongwen is found guilty. The reflections below on victims’ preferences for reparations will be relevant in case of a conviction. As per the experience of other ICC cases, victims should have an opportunity to voice such preferences, through direct consultations or via their legal representatives.

The first and most important option that is frequently mentioned by community members is cash compensation, or ‘cul,’ as they refer to it in the Acholi language. While consulting with victims in the process of writing this article, all individuals who were interviewed from the communities of Lukodi, Odek, Pajule, and Abok, mentioned cash compensation as the most desired form of reparations they were looking forward to. As one community member in Lukodi said, “People want money to help them to meet their needs, such as paying school fees for their children.”

Another community member noted, “People are highly expectant that they will be paid. I cannot say how much people expect because that is a matter for the court to determine. Even if it is little, we expect that at least some money will be paid.”

The above is an indicator that while money cannot be an end in itself in undoing the harm that was suffered, many victims consider it important in enabling them to live dignified lives. Many of these victims lost their property as a result of attacks and killings that happened in their communities. In the aftermath of the conflict they have little to rely on to sustain themselves and their families. It is therefore not a surprise that most of them express interest in receiving cash compensation, which they believe is a means to living their lives in dignity.

Other forms of individual reparations that are considered important by community members are education and healthcare for survivors. As a result of the atrocities committed in their communities many children who were orphaned are finding it difficult to meet their educational needs, and many survivors still live with health complications suffered as a result of injuries they suffered. In addition, the livelihoods of many survivors were disrupted and victims recounted how they lost livelihood sources, such as cattle. These victims would like to see reparations in the form of a replacement of their stolen or destroyed property.

Victims could also benefit from programs that help them earn a living again in the affected communities, give educational scholarships for children who were orphaned, and provide a medical care for survivors who still have serious health problems. As a community leader in Abok said, “We have victims who were disabled permanently as a result of the atrocities they suffered, and they are finding it very difficult to survive. There are people who still have health complications. They need to get medical assistance.”

In addition to cash compensation and other individual forms of reparations, collective reparations schemes may be beneficial. Those would include projects such as the construction of monuments and memorials for victims who lost their lives in the affected communities. As one community member in Lukodi said, “There should be structures that benefit the community and help them to heal. These can include things like monuments or community centers where information about what happened during the conflict is kept.”

While communities like Lukodi and Odek have memorials that were sponsored by civil society organizations, others like Pajule and Abok do not have any tangible memorials. Victims may wish to have existing memorials improved or rebuilt, or to build new ones in communities that do not have any. However, as one community member emphasized, this would rank second on their list behind cash compensation: “Monuments and memorials would be good, but people prefer individual payments.”

If Ongwen is found guilty for crimes committed in the four communities concerned by the charges,  only victims from those communities would benefit from reparations programs. However, victims in other parts of northern Uganda similarly believe they are entitled to reparations. A community member from Lukodi said, “Ideally we [all victims in northern Uganda] should have all benefited because we all suffered. The challenge that I see is that the policy of the ICC may not allow it. But as community members of Lukodi we welcome the idea of all people in northern Uganda benefiting from reparations by the ICC.”

A case in point is Atiak village, located near the border of South Sudan, where over 300 civilians were massacred in a single day by the LRA. However, Atiak is not among the locations where Ongwen is charged with crimes by the ICC.  As one community member from Atiak village, who also happens to be a survivor of this massacre said, “People in Atiak should also [be] compensated… Those who say Ongwen did not operate in Atiak should tell us how they reached that conclusion. The people in Atiak are also victims of the LRA like those ones in Lukodi.”

The above indicates that victims outside the communities of Lukodi, Odek, Pajule, and Abok may be angered by their exclusion from any proposed reparations program. This is because they feel strongly that a reparations scheme must benefit the whole of northern Uganda, not just victims from the four communities Ongwen is charged with committing crimes in. Therefore, it would be important to start providing clear explanations to victims now so that they understand the limitations of any future reparations plan.

However, Kamara noted that victims outside the four communities can still benefit from assistance offered by the ICC Trust Fund for Victims (Trust Fund), which can implement assistance projects for the benefit of victims not concerned by ICC cases, i.e. victims who suffered crimes as a result of the conflict in northern Uganda from 2002 onwards but whose crimes are not reflected in the Ongwen case.

”Independent of the reparations related to a specific case, the ICC Trust Fund for Victims has spent 22.7 billion shillings (UGX) on its victim assistance program in northern Uganda from 2008 to 2016. The Trust Fund’s victim assistance program in Uganda have benefited an estimated 43,000 victims and their families and more than 200,000 indirect victims in the community. The Trust Fund implements an integrated assistance program in partnership with NGO’s to provide physical and psychological rehabilitation and material support to victims and their families in communities across 18 districts of northern Uganda,”  said Kamara.

However, should there be a conviction, Ongwen will possibly be unable to pay for reparations if he is found indigent. Reparations would therefore likely be funded through the Trust Fund, whose resources are limited. It would be important for the ICC and NGOs assisting victims to start managing expectations on reparations as early as possible. In light of the limitations of ICC reparation programs and considering the state’s obligation, the government of Uganda should also fulfill its duty to provide reparations.

There is clear evidence of the high expectations victims have in regard to reparations concerning the case of Ongwen. The fact that there has never been a formal reparations program for victims of conflict in northern Uganda further raises these expectations. For victims, it may be the only sign of a successful trial.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local non-government organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.

This post originally appeared on INTERNATIONAL JUSTICE MONITOR