Ongwen’s Justice Dilemma

Ongwen’s Justice Dilemma

The recent surrender and transfer of a senior Lord’s Resistance Army (LRA) Commander, the Ugandan Brigadier Dominic Ongwen, to the International Criminal Court (ICC) raises dilemmas for the states and justice institutions involved as well as for the conflict-affected communities.

In a report published on January 26th, 2015, the day Ongwen made his first appearance before the ICC, the Refugee Law Project at Makerere University’s School of Law presents some perspectives from Northern Uganda. Here, IFAIR publishes edited excerpts from this report in friendly collaboration with the Refugee Law Project.

[…] On January 6, 2015, the US Military Advisors and African Union’s Regional Task Force (AU-RTF), hunting the LRA in Central African Republic (CAR), announced that they had custody of a senior LRA Commander, Brigadier Dominic Ongwen. Now 34 years old, Ongwen was abducted at the age of ten by the LRA in Northern Uganda in 1999, as he was on his way to school. He subsequently rose through the LRA ranks to become Kony’s second in command. Ongwen surrendered voluntarily to the Seleka rebels in CAR, but was later handed over to the US military advisors in Bangui. Given that there was already an ICC indictment hanging over his head, Ongwen’s surrender sparked a debate about what should happen to him next.

About LRA Conflict

The LRA has been fighting the Government of Uganda for the last 28 years. For 22 years, Northern Uganda was its battlefield, until 2006 (during the Juba Peace Talks) when the LRA moved its operations into South Sudan, CAR, and DRC where it operates today. The LRA conflict is known for its brutality against civilians and is often presented as having generated one of the world’s worst humanitarian crises, in which over 60,000 children (including Ongwen) were abducted and forcefully conscripted to LRA ranks, and in which an estimated 2.8 million civilians were displaced into Internally Displaced Persons (IDP) camps across Northern Uganda. Past efforts to end the rebellion, including peace negotiations, Amnesty Law, referral to the ICC and the Juba Peace process had all failed to find a lasting solution. The latter particularly set out a range of mechanisms to deal with the LRA situation and this included a special division of the High Court in Uganda called the International Crimes Division (ICD) to complement the ICC.

Key Questions

On Friday January 16th, the Refugee Law Project (RLP) in collaboration with Northern Uganda Transitional Justice Working Group (NUTJWG) hosted a consultative dialogue in Gulu to reflect on emerging viewpoints on: “Ongwen’s Justice Dilemma”. This followed wide-ranging debates within and beyond Uganda sparked by Ongwen’s surprise surrender to the Seleka rebels in Central African Republic (CAR) and his eventual handover to US Special Forces stationed in CAR.

About sixty-one opinion leaders within the region participated, including political, religious and cultural leaders […]. The reflections were guided by the following key questions:

  1. Is Ongwen a victim, a perpetrator or both: What layers of responsibility exist in Ongwen’s case?
  2. Should he be tried or forgiven? If tried, could he be tried in Uganda or only at the ICC? Who should surrender Ongwen to the ICC and why? Will he only be tried for crimes committed in Uganda or those in CAR?
  3. If tried by the ICC, what justice should be done for crimes committed in Northern Uganda prior to 2002?
  4. What implications, if any will such action or inaction have on the fight against LRA and prospects for ending LRA rebellion, building sustainable peace, justice and reconciliation in LRA affected areas and Uganda at large?
  5. What precedent should be set in this case in terms of child protection vis-à-vis criminal responsibility? […]

Conclusions

Ongwen is both a victim and a perpetrator; what made him a perpetrator is the key question which, if addressed, would perhaps result in a better understanding of the multiple layers of responsibility that exist in Ongwen’s case. His case is complex with far-reaching implications. His trial should open doors to comprehensive accountability and reconciliation for Northern Uganda and Uganda at large. Even as it prosecutes Ongwen, the ICC should therefore be sensitive to the real justice needs within the affected communities.

Concerning his trial at The Hague, the leaders conceded that Ongwen is legally a subject of the ICC because of an indictment on him. However, an indictment is not a conviction, and it does not mean that Ongwen is already guilty. It also does not mean that the ICC must prosecute Ongwen. Other layers of responsibility also exist in Ongwen’s case and the ICC must re-open its investigations into the Northern Ugandan situation if it is fully to appreciate the justice dilemmas raised by his case. All parties to the conflict must be held accountable for justice to be done. Ongwen must be protected by the ICC and be given absolute discretion to choose his defence team.

Equally, the trial of Ongwen has implications for the fight against the LRA and the prospects for sustainable peace, justice and reconciliation in LRA-affected areas and specifically in Uganda. His prosecution at The Hague must not jeopardise the meaningful and robust accountability and reconciliation mechanisms agreed in Juba for post-conflict Northern Uganda. There is need to complement the ICC proceedings with domestic processes that provide acknowledgement to the multiple victims of the conflict, provide healing to survivors and the affected community, and take steps to promote national reconciliation and guarantee non-recurrence.

The Ongwen trial also presents an opportunity to kick-start a process of establishing an impartial historical record of what happened in Northern Uganda from a rights-based perspective. The ICC must open an outreach office in northern Uganda and pay attention to views of the community throughout the trial. There is need to provide victims and community throughout the LRA affected areas with an opportunity to participate and to monitor the proceedings. The populations should equally be sensitised to the ICC mandate and its implications for Transitional Justice processes in Northern Uganda.

Finally, while it is important to end impunity, reparations to victims remain equally vital. We must not simply prosecute the crimes Ongwen committed but also focus on righting the wrongs meted out to the affected communities by balancing the costs of the prosecution with reparatory measures to restore the victims as closely as possible to their position before victimisation.

Read the original and unabridged version of this report on the website of the Refugee Law Project!

Refugee Law Project
IFAIR