Ongwen at the ICC: victim turned perpetrator

 
4 February 2015
After almost 10 years on the run, one Ugandan rebel leader is finally in the custody of the International Criminal Court (ICC). Dominic Ongwen, of the infamous Lord’s Resistance Army (LRA), surrendered in early January and was transferred to The Hague, where the ICC is based, on 20 January. Ongwen’s first appearance at the ICC was on 26 January, making him the first LRA stalwart set to face trial for the group’s activities at the ICC.
On 8 July 2005, the ICC issued an arrest warrant for Ongwen. He is charged with three counts of crimes against humanity and four counts of war crimes. His alleged crimes include murder, enslavement, inhumane acts of inflicting serious bodily injury and suffering, cruel treatment of civilians, intentionally directing an attack against a civilian population and pillaging.
Speaking in Acholi, a language widely spoken by the people of northern Uganda, Ongwen calmly confirmed his identity to Judge Ekaterina Trendafilova of Pre-Trial Chamber II. The judge pronounced that she was satisfied that Ongwen has been informed of the crimes which he is alleged to have committed, and of his rights under the Statute – including the right to be informed of the proceedings in Acholi as a language that he fully understands and speaks.
Uganda has shown a willingness to ensure that those who commit international crimes are prosecuted
Ongwen was transferred to the ICC despite Uganda having both the capacity and willingness to prosecute him. It remains possible that Ugandan authorities may challenge the admissibility of the case at the ICC on this basis, however improbable.
Uganda is one of a few African countries that have criminalised war crimes, crimes against humanity and genocide. Uganda has also established a specialised judicial chamber to deal with, among others, international crimes. The International Crimes Division (ICD) of the High Court is the only judicial chamber of its kind in Africa.
Thus, at the very least, Uganda has shown a willingness to ensure that those who commit international crimes are brought to justice. It has also staffed the ICD with capable personnel. Indeed, prosecuting Ongwen would have been a great opportunity for Uganda and the ICD. However, there are reasons why the ICD cannot prosecute Ongwen for the specific crimes with which the ICC has charged him.
First, in respect of crimes under the jurisdiction of the ICC, the ICD can only deal with cases arising after Uganda’s International Crimes Act came into force. The law, from 2010, does not apply retrospectively. The crimes that the ICC prosecutor alleges Ongwen to have committed mostly occurred prior to 2010 and would thus fall outside the temporal jurisdiction of the ICD.
Like hundreds of other children, he was trained as rebel soldier
Some commentators have noted that the ICD could potentially charge Ongwen under the country’s Geneva Conventions Act. However, these charges would not be the same as those levelled against him by the ICC. For starters, the Geneva Conventions Act only relates to war crimes, and the ICC has charged Ongwen with crimes against humanity that fall outside the ambit of the Geneva Conventions.
Further, in respect of crimes committed by non-state actors, the Common Article 3 of the Geneva Conventions would apply. This Article relates only to grave breaches of the Geneva Conventions. Not all the war crimes that Ongwen is charged with meet this threshold, such as intentionally directing an attack against a civilian population and pillaging.
Now that Ongwen has made his first appearance before the ICC, there are other issues to consider. Ongwen was a child in 1990 when he was recruited into the LRA, and later became the commander of the group’s Sinia Brigade. His is an interesting case of victim turned perpetrator. It is, however, not unique.
The Justice and Reconciliation Project, which interviewed Ongwen’s family and victims in northern Uganda, reports that when he was 10, Ongwen was abducted by the LRA on his way to school. Like hundreds of other children, he was trained as rebel soldier – a strategy employed by Joseph Kony to increase combatants in his insurgency in northern Uganda. Ongwen was so efficient and fearlessly loyal to his superiors that he was eventually ‘promoted’ to become a key member of the ‘control altar,’ the section that represents their core leadership and which is responsible for devising and implementing LRA strategy. This includes standing orders to attack and brutalise the civilian population.
Ongwen’s trial at the ICC has the potential to reignite a semblance of hope to the victims
The conscripting or enlisting of children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities, is a war crime under the ICC Statute. It is clear that Ongwen was then a child soldier and therefore one of hundreds of thousands of victims of the conflict. The charges by the ICC Prosecutor levelled against Ongwen are, however, not related to the period that he was a child soldier – but rather, specifically on the individual responsibility he bore as a brigade commander of the LRA, where he ordered the attacks and killings of villagers in northern Uganda.
While his victimhood is not contested, the primary concern of the trial at the ICC would be his conduct as an adult of sound mind. As the case proceeds to the next phase of confirmation of charges, the judges will be interrogating whether there are substantial grounds to believe that Ongwen consciously and deliberately committed and ordered certain crimes.
These procedural concerns of the court are what will inevitably separate Ongwen as a victim from Ongwen as an alleged perpetrator. In any case, the ICC excludes itself from exercising jurisdiction over any person under the age of 18 years. There will be no chance that the ICC will adjudicate on the crimes that Ongwen committed as a child soldier. It is likely, though, that his victimhood may be seen as mitigating circumstances. This is not an immediate concern for the court at this stage, but it will perhaps be at the judgment and sentencing stage, should Ongwen be found guilty.
The impending trial of Ongwen at the ICC has the potential to shift the perceptions of the court, which has seen very turbulent times in the recent past with the collapse of the Kenyatta case and repeated allegations of bias against Africa, although it seems that debate only relates to trials of African heads of state. Ongwen’s case is different.
Until his surrender, he was the second in command of the LRA after Joseph Kony. He is thus a very high profile defendant in the cases arising from the Ugandan situation. Moreover, Ongwen’s trial at the ICC has the potential to reignite a semblance of hope to the victims of the conflict in northern Uganda, whose plight over the past 30 years seems to be easily forgotten by the international community.
Allan Ngari, Researcher, Transnational Threats and International Crime Division, and Ottilia Anna Maunganidze, Researcher, Office of the Managing Director, ISS Pretoria
 
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