ICC can still hold Ongwen’s trial in northern Uganda

Thursday January 15 2015

By Luke Moffett

On January 6, the US State Department reported that a Lord’s Resistance Army (LRA) commander, Dominic Ongwen, had handed himself in to an American base in the Central African Republic. Ongwen 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. There have been negotiations around what to do with Ongwen, given that he is a Ugandan in the custody of the US government in the Central African Republic (CAR). On Tuesday, the UPDF’s spokesman announced that Ongwen would be transferred to the ICC by CAR authorities.
Why not try Ongwen in Ugandan courts?
While the Ugandan government has not given details of why Ongwen is not being tried in Uganda, there were some problems in them doing so. Uganda still has an amnesty law in place, which enables any rebel to obtain immunity from prosecution if they so choose, effective until May 2015. Ongwen claimed on Monday that he had received an amnesty from the Ugandan government in a radio broadcast in the Central African Republic, but this was later refuted by the Ugandan government. Yet, despite being wanted for war crimes and crimes against humanity, he would be eligible for amnesty from prosecution in Uganda. The Ugandan government failed to pass a motion to exclude Ongwen and other LRA commanders from amnesty in 2010. Yet such an amnesty does not apply to crimes before the ICC.
Even if Ongwen was not eligible for the Ugandan amnesty, it is questionable if he could be guaranteed a fair trial. Uganda does have a specialised International Crimes Division to prosecute war crimes and crimes against humanity. However, there is an acute shortage of the sufficiently experienced defence lawyers to ensure defendants’ rights. Uganda’s drafted witness protection law has yet to be passed by the Ugandan Parliament.
What does a trial at the ICC hold in store?
A trial at the ICC for Ongwen is likely to be at least two years away. Former Congolese warlord Bosco Ntaganda, who similarly surrendered to the US embassy in Rwanda in March 2013, is only going to trial at the ICC in June 2015. In the meantime, defence counsel will need to be arranged, a chamber established, and charges against Ongwen will need to be confirmed before heading to trial. Despite sovereignty arguments and the ICC [targeting] Africans made by President Museveni, the Uganda government is unlikely to be willing to challenge the ICC prosecuting Ongwen, due to the cost of an internationally scrutinised domestic trial.
The ICC may 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. Given the resource strain on the ICC Office of the prosecutor, they may only limit the charges to those in Uganda. Ongwen may argue that as a former child soldier, he was under duress to commit atrocities. However, as an adult commander at the time of the crimes he is indicted for in 2004, this defence is unlikely to work. Instead if he is convicted, Ongwen might seek to have his sentence reduced, due to his past victimisation.
While initial proceedings in Ongwen’s case will occur in the seat of the ICC in the Hague, the ICC can still hold the trial in Gulu, northern Ugandan under Article 62 of the Rome Statute. 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. Undoubtedly, in the coming months, we will see the ICC carrying out outreach to affect communities in northern Uganda, investigators contacting witnesses, and greater visibility of the work of the Court’s Trust Fund for Victims.
Doing justice for victims
The prosecution of Ongwen will not bring justice to the hundreds of thousands of victims of the LRA conflict. The charges against Ongwen are limited to two very specific massacres in 2004 in northern Uganda. While victims will be able to participate at the ICC trial of Ongwen, and 41 are already registered, any reparations order by the court are likely to be at least five years away. The ICC Registry now faces processing thousands of applications, which have been already supplied to the court since 2005. Many of these victims may now be dead or have moved from Internally Displaced Peoples’ camps back to their villages, and so will be difficult to trace.
What must be remembered is that justice for the victims of the LRA conflict cannot be secured by criminal trials alone. There is need for a comprehensive approach, including accountability, truth and reparations for all victims of the conflict, not just for those few victims who can participate and receive reparations from the ICC. The trial of Dominic Ongwen at the ICC will hopefully draw desperately needed attention to the plight of the war victims, putting international pressure on the Ugandan government to implement its long awaited transitional justice policy.

Dr Moffett is a lecturer, School of Law, Queen’s University Belfast, Northern Ireland. l.moffett@qub.ac.uk