We have many considerations to make before investigating UPDF - ICC chief - Daily Monitor

We have many considerations to make before investigating UPDF - ICC chief

Sunday March 8 2015

ICC chief Fatou Bensouda

ICC chief Fatou Bensouda (2nd L) being led by local leaders to the Lukodi massacre site in Gulu District. FILE Photo 

By Frederic Musisi

Can you elaborate on the kind of support or expectations you need from the government of Uganda to build the case against Dominic Ongwen?
First, I want to emphasise that investigations conducted by my office are in complete independence and impartiality. We are not depending on government to investigate for us. But naturally there is logistical assistance and information that we will need provided to us. As you rightly know, this is a situation in which your government has been involved in for quite a long time, so we will also need some evidence to collect from them.
There is also the issue of witness protection; even if it’s not upon my office to take care of witness protection in the realm of registry. But we expect that the registry will closely collaborate with government to assist them on witness protection. But the gathering of evidence is the duty of my office.

How many charges have you brought against Ongwen?
The confirmation of charges was scheduled for August 24, but I requested for another extension of three months, up to January 2016.

But are you convinced that he is answerable to the charges?
Yes, I am completely convinced and Mr Ongwen was charged with serious crimes, let us not forget that. There are many victims of these crimes that are still out there waiting for justice and we should not forget that too. And from the contacts we have made so far, the victims want justice done.

Ongwen was indicted for the crimes against humanity basing only on the incidence in 2004 of the Lokodi IDP camp massacre. Is there any other evidence that you have linking Ongwen to the attacks?
When we charged Mr Ongwen for these crimes, this was in 2005, the arrest warrants were issued and have been pending for all these years. In the meantime, as I have explained, this is a case that we had hibernated because there was lack of, or no prospects for arrest and for various reasons we felt that we needed to prioritise other cases than focus on a situation where we did not have the persons wanted.
Now that this has happened, the office is revisiting the whole file, including not only the crimes for which he is brought to court for, but we are also having a team instituted looking into other crimes that were committed after the warrants were issued. My office is looking at this evidence and we will be advised on how to go forward.
But also as you can remember, these crimes were not only committed in northern Uganda alone, there are allegations of crimes that were committed in the Democratic Republic of Congo (DRC) and the Central African Republic (CAR). So it is a complete assessment that my office is making.

You said you don’t prosecute child soldiers, but in Ongwen’s case as we all know; he was abducted and conscripted and forced/taught to do what you are charging him with now…
Is he a child now? No. And we have not charged him with any crimes that he committed as a child. This is why I was very clear in saying our charges against Dominic Ongwen were for those incidences that we have found, that he allegedly participated in as an adult. I just want to be clear to say probably this is a defence, and whatever Mr Ongwen chooses to tell the judges could be a defence and it’s up to the judges to determine.
As far as the office of the Prosecutor is concerned, we charged him with offences whose evidence we brought before the judges and they issued an arrest warrant against him. We now have to prepare to try him for those charges and possibly others if we feel that it is necessary.

There have been voices raised concerning the UPDF also committing crimes during the war. Do you see your office also investigating the army, and if so when?
I recall these issues came up in the very beginning and I remember at that time my office in accordance with our policy had said we will phase our investigations; starting with what we considered in our assessment were the gravest crimes committed and that is why our investigations started with the LRA. Over the years this case was hibernated totally because there was no prospect of arrest and we were not doing anything.
We decided to take our resources and focus on other cases which we saw could at least go forward. It is a new situation that has presented itself and which my office is already looking at in totality of the evidence again with fresh eyes also taking into account the resources that we have, other priorities and a determination will be made. But at the moment we cannot say when.

Are you simply under pressure or any other political reasons not to investigate possible war crimes by the UPDF?
You see, I have a lot of considerations to make and then decide whether to move forward with the case or not. But I can assure you that all those considerations are legal ones; they have nothing to do with politics.
My office works on the basis of evidence and the law and the only boss who can tell me what to do and what not to do is the Rome Statute and nothing else. So as I said, we will need an assessment carefully that my office has to make and take everything into consideration and decide in which direction to move.

A recent report, The LRA Crisis Tracker, monitoring Joseph Kony indicated that he is going strong. The report authors, however, expressed fear that the trial of Ongwen would be a deterrence to more defections…
I think we should be reasonable in the sense that the case has been on for 10 years and there were no arrests and these people remained out there. So I don’t think that the arrest of Ongwen will make them hide more. To me it does not sound logical. When arrest warrants are issued they are issued for very serious crimes.
Those who are still out there have nothing to fear; they will have a chance to tell their story and their rights will be also be respected. If the judges find them innocent, they will be let go. The trial is an opportunity for them to give their reasons and everyone else to know the truth. I will encourage those that are not subject to ICC warrants to come out of the bush.

Your predecessor Luis Moreno-Ocampo at a meeting in Lira District during his last visit in early 2013 promised victims that the ICC would work on their compensation as well. He said the Rome Statute provides for an entity, the Trust Fund for Victims (TFV).
The TFV is an institution that was set up and is independent on its own. It was set up to deal with victims of these atrocities that the ICC is looking into. I know it has engaged in northern Uganda over the years, but because there was nothing happening, I’m quite sure their activities were lessened.
Right now, I am sure the TFV is also preparing itself for their role under the Rome Statute, namely reparations and rehabilitation and basically to assess what is suitable for the victims. For the first time in this case, victims have the rights to request to participate in the proceedings or request for reparations. There is an office of the public counsel who I am sure is preparing to go on the ground to have engagements with victims and determine what the best form of reparations is required.

What will you do about the continuing dissenting views of many African governments about the ICC, and as you rightly state, you need confidence of these governments in your operation?
One of the main reasons for my coming to Uganda is directly following the surrender of Ongwen and I believe it is an opportunity for us to establish contacts and talk to the government and demand for cooperation.
From my meetings, I really have no doubt and it has been openly stated by government officials even in public forums that investigations of the ICC will be supported.

What is your take on accusations by some African governments that the ICC is biased and that it is a tool for Western powers to witch-hunt African leaders?
This is a question that I have answered several times and sometimes I hope that people will begin to think logically about the accusations because they do not have any justification.
We are in Africa investigating war crimes, crimes against humanity and genocide, and this is neither by choice nor as a directive from anybody. ICC is in Africa because African governments have requested us to come here.
The examples we can start with is Uganda which was the first country to request the ICC to intervene in the situation in northern Uganda. Uganda did that because they are a state party; if a state party has such crimes committed on its territory and it’s not able to conduct the investigations by itself or unwilling, they can turn to an institution that they are part of, an institution like ICC that they created and say we invite you to come in.
Not only has Uganda invited us, but DRC, Mali and CAR for two times have requested as to intervene. So to me the question we should be asking ourselves is if some African states are requesting for intervention should we say no; should we not think about the crimes themselves? In fact, it was the idea of the international community that such heinous crimes of rape, pillaging, killing, murder and other atrocities committed should be tried by the court. So should we just let them go?
We are not coming to investigate, but we will answer a call of any African state requesting us to come and that is what we are doing. There are other situations that we are looking at, but those in Africa condemning the ICC conveniently fail to mention them. At the moment we are conducting preliminary investigations in nine other situations, including in Afghanistan, UK forces in Iraq, Georgia, Honduras and in other countries that have invited us or conveniently where we have seen that we need to do something about it.

But ICC is being viewed by African governments as a tool to bring down revolutionaries…
You need to understand our work, and one thing for sure is that whatever action or step that the ICC takes will be perceived as such because of this and that. The last thing I am beginning to see is that nobody thinks about the evidence that we present before the judges.
As a prosecutor, I cannot go before the judges and say I am prosecuting this or that person based on politics. The judges will not listen to me. When I go before the judges I present evidence and that is what cases are all about. When I go to request for arrest warrants from the judges, I do so using evidence and this is how we need to look at it. This issue of politics, I have many considerations—but these are legal considerations, otherwise my cases would not be considered by the judges.

The case against Kenyan president Uhuru Kenyatta recently collapsed under your watch. What were the undoing’s in your view?
In the Kenyatta case I wouldn’t want to say the way the ICC handled it, there are any regrets. The office of the Prosecutor can control only certain aspects of the case; the others are beyond our control. What we are able to control is the evidence we collect and present to the judges and this we did.
However as you might recall, when we collected the evidence and presented it to the judges of the ICC, they confirmed the charges against Mr Kenyatta. What the confirmation of charges means is that the judges believe the evidence before them is enough to take the case forward into the trial.
But over time the evidence was eroded; you all saw and I have laboured to explain to the public how witnesses were pulling out of the case for various reasons , things which the public already knows. As a Prosecutor, I need evidence. So if it got eroded for reasons beyond my control, I don’t think it would be responsible on my part to insist that the case would have gone forward.

Do you see relations with the African Union improving, and have their concerns made you to rethink your strategy towards Africa?
As I said, my cases are not directed towards Africa, but rather answering calls from Africa. And in spite of all these political positions that have been taken against the court, which is a judicial institution, fortunately the cooperation that we need from individual African countries in our investigations and prosecutions is forthcoming.
We do not have any problems with any African country, except one or two, and we are investigating situations that were referred to us. But above all, relations with Africa remain good.

Dominic Ongwen at a glance

1. Said to have been abducted by LRA, aged 10.
2. Rose to become a top commander.
3. Accused of war crimes and crimes against humanity, including enslavement.
4. ICC issued arrest warrant in 2005.
5 Rumoured to have been killed in the same year.
6. US offered $5m (about Shs14b) reward for information leading to his arrest in 2013.

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