From ... in Social issues — Jan 27, 2021

Q&A: The LRA Commander Dominic Ongwen and the ICC

Ongwen was known as one of the more ruthless commanders of the rebel group the Lord’s Resistance Army (LRA).He is from northern Uganda.

. His family indicates that he was born in 1980 and that the rebel group abducted him on his way to school in 1990, when he was about 10. Senior LRA leaders gave him military training, and he eventually became an LRA commander. After LRA forces left northern Uganda in 2005 and 2006, troops under Ongwen’s command repeatedly terrorized communities in Congo’s Haut Uele and Bas Uele districts. His troops were responsible for some of the LRA’s most vicious attacks in the following years, including the Makombo massacre in 2009, one of the worst during the LRA’s long, brutal history. Troops under Ongwen’s command killed at least 345 civilians and abducted another 250, including at least 80 children, during a four-day rampage in the Makombo area of northeastern Congo.

The Lord’s Resistance Army is an armed rebel group led by Joseph Kony. Organized in about 1987, it initially fought the Ugandan government in northern Uganda, with incursions into South Sudan. Ugandan military operations forced the group out of Uganda in 2005 and 2006. After that, the LRA gradually became a regional threat, operating in the remote border areas between then-southern Sudan, the Democratic Republic of Congo, and the Central African Republic. Human Rights Watch documented the killings of more than 2,600 civilians and abductions of over 4,000 others by the LRA in northeastern Congo, Central African Republic, and South Sudan between 2008 and 2012. More than 400,000 people were displaced from their homes in this region because of LRA attacks. Throughout its history, the LRA has been responsible for numerous atrocities, including massacres, summary executions, torture, rape, pillage, and forced labor.

The LRA’s brutality against children has been particularly horrific.

The group has replenished its ranks by abducting children, forcibly training and using children in combat operations, using girls as sex slaves, and compelling compliance through threats, violence, and mind control. While the group has become weaker in recent years, LRA fighters continue to conduct smaller-scale attacks in northeastern Congo and the Central African Republic. In December 2003, Uganda referred the situation of the Lord’s Resistance Army to the ICC. In July 2004, the ICC prosecutor announced that the ICC was opening an investigation into the situation in northern Uganda. In July 2005, the ICC issued sealed arrest warrants for war crimes and crimes against humanity for the LRA’s top five leaders at that time: Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen.

The warrants were unsealed in October 2005. Lukwiya was killed in 2006 and Otti in late 2007. Odhiambo’s body was found in the Central African Republic in early 2015. On January 6, 2015, United States military advisers working with the African Union (AU) Regional Task Force in the Central African Republic received Ongwen into custody. Ongwen was transferred to the custody of AU forces on January 14. Two days later, he was transferred to Central African Republic authorities and then to ICC custody. On January 26, Ongwen made his first appearance before Pre-Trial Chamber II of the ICC. Kony remains at large, and his fighters remain a threat to civilians in the border region between the Central African Republic, South Sudan, Sudan, and northeastern Congo.

The ICC initially charged Ongwen with criminal responsibility for crimes committed in northern Uganda in 2004 at the camp for internally displaced people at Lukodi – three counts of crimes against humanity and four counts of war crimes. In September 2015, the prosecutor gave notice of additional charges.

These included murder, torture, enslavement, and pillage as part of attacks on four camps for internally displaced people: Pajule, Odek, and Abok, in addition to Lukodi. Added charges also included sexual and gender-based crimes, and conscription and use of child soldiers in northern Uganda from July 2002 through 2005. Ongwen is believed to be the only former child abductee to face charges before the ICC. During its history, the LRA abducted at least 30,000 children into its ranks, in large part because they are easier to manipulate than adults. Through mind-control methods that instill fear, and sheer brutality, the LRA has initiated children into the group and forced them to undergo what they call “military training.” Children were often forced to kill adults or other children who failed to obey the LRA’s strict rules or who tried to escape.

The ICC’s Rome Statute includes the conscription and use of child soldiers as a war crime.

The statute does not provide jurisdiction over crimes committed by someone under 18, but Ongwen was tried for crimes prosecutors allege he committed as an adult. His abduction at a young age and the brutality he might have experienced at the hands of the LRA as a child abductee may be considered as mitigating factors at sentencing if Ongwen is convicted. During the trial, 69 witnesses and experts testified for the prosecution, 54 witnesses and experts testified for the defense, and 7 witnesses and experts testified for the victim participants. Significant issues that were addressed during his trial included: More than 4,000 victims are recognized as “participants” in Ongwen’s case at the ICC. Victim participation is a unique feature of the ICC among international courts, allowing victims to express views and concerns separately from any role as witnesses. Victim participation is one way to enhance the ICC’s resonance in affected communities. Two teams of lawyers represented the victim participants. Early decisions in the case showed that improvements are needed to ensure that victims are able to choose the lawyers that would represent them in court. Seven witnesses and experts testified for the victim participants. Outreach in the affected communities is important to maximize the court’s impact locally. For the opening of the Ongwen trial, the ICC organized viewing sites in the four areas that were the focus of the charges against Ongwen: Pajule, Odek, Abok, and Lukodi, in addition to Gulu and Coorom, the area near where Ongwen is from. Throughout the proceedings audio and video screenings of portions of the trial in 25 affected communities allowed people to learn about the proceedings, in addition to radio broadcasts about the trial, thanks in part to financial support provided by the Danish government. In addition, community leaders were able to visit The Hague to observe proceedings. Some of them reported back on their experiences directly to affected communities. Updates on the trial were also made available to individuals through a free phone messaging platform. In situ proceedings, in which ICC proceedings are held locally, can also help make the ICC’s work more accessible to the communities affected by the crimes.

The court considered holding Ongwen’s confirmation of charges hearing and the opening of the trial in Uganda. However, the ICC judges ultimately determined that the possible security risks and other costs outweighed the possible benefits. To help address harm suffered by victims of crimes within the ICC’s jurisdiction, ICC members created the Trust Fund for Victims (TFV).

The TFV provides court-ordered reparations in the event of a conviction, but it also provides assistance to victims and their families separate from any determination of responsibility by the suspects. Since 2008, the TFV has provided assistance to victims in northern Uganda to support: Human Rights Watch has documented abuses by the Ugandan armed forces over the course of its 25-year armed conflict with the LRA, including torture, rape, arbitrary detention, unlawful killings, and forced displacement of its citizens into camps with no protection and minimal humanitarian assistance.

These crimes have very rarely been prosecuted. Human Rights Watch is aware of some instances in which soldiers were executed for crimes against civilians during the LRA conflict, following a guilty verdict in a summary court martial proceeding. Defendants had no right to appeal, and Uganda’s Constitutional Court has ruled such executions unconstitutional. Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty.

The Ugandan army has said that Ugandan soldiers who committed abuses during the conflict have been prosecuted and convicted, though it has been unwilling to provide details of such cases. At least some former LRA fighters, including some senior commanders, have been integrated into the Ugandan military and were deployed in the counter-LRA effort, without any investigation into crimes they may have committed during their time in the LRA.

The ICC has jurisdiction over serious international crimes committed by all parties to the conflict in northern Uganda.

The prosecutor has yet to answer decisively whether her office will pursue cases against members of the Ugandan People’s Defence Force.

The absence of cases against government forces has contributed to persistent concerns about the court’s impartiality among people in the affected communities. Both prosecution and defense will have up to 30 days to appeal the verdict. In the event of a conviction, the ICC will also conduct hearings on sentencing and possible reparations for victims.

The sentence can be imprisonment for up to 30 years, or life in prison.

The death penalty is not an available punishment before the ICC. Court-ordered reparations may be individual or collective and are determined on a case-by-case basis. Collective reparations awarded in other ICC cases have included housing assistance, education assistance, income-generating activities, and psychological rehabilitation services. Individual reparations have included compensation awards to individual victims. As the Ongwen case concludes, there should be renewed momentum for Kony’s arrest. From 2010 to 2017, the US ran a counter-LRA operation to “apprehend or otherwise remove from the battlefield” LRA leaders in conjunction with regional governments and the AU Regional Task Force on the LRA.

The weakening of the LRA, along with the cost, were cited as factors in ending the US program. According to information from the group Invisible Children, which continues to track LRA movements, Kony is currently based in Kafia Kingi, a disputed area on the border of Sudan and South Sudan. States in the region and their international allies can show a commitment to justice for victims of serious international crimes by reviving efforts to arrest Kony and encouraging him to surrender to the ICC.

The UN Regional Office for Central Africa continues to have a mandate to address challenges posed by the LRA; and the UN’s regional strategy to combat the LRA, which includes supporting efforts to apprehend Kony, remains in place.

The AU Regional Task Force is in the process of transferring its work to the Economic Community of Central African States, but the extent to which the transfer has been implemented is unclear.

The ICC should take this opportunity to put in place a long-overdue strategy to deepen its legacy in the country and guide its future work. In addition to its existing cases, Human Rights Watch has called for the ICC prosecutor to consider charges for LRA suspects related to serious crimes in other countries where the ICC has jurisdiction.

The ICC Office of the Prosecutor also should provide further information on its approach to abuses by Ugandan military forces in the conflict in northern Uganda in an accessible format on the ICC website and in other public materials.

The ICC should work with other international partners on strategies to further bolster domestic capacity to bring justice for serious crimes. Over the last decade, Uganda has established an International Crimes Division. But the division has pursued only one case involving crimes committed in northern Uganda, against Thomas Kwoyelo, an LRA commander.

The trial has proceeded in fits and starts and suffered many delays. In December 2020, the ICC prosecutor’s office concluded an assessment of an operation by the Uganda People’s Defence Force and the Uganda Police Force in western Uganda in November 2016 in which about 150 people were killed. Human Rights Watch documented the massacre.

The prosecutor’s office found that Ugandan security force members committed murder and used indiscriminate and disproportionate force but said it was unable to conclude that the acts took place as part of a policy, which is a necessary element for the ICC’s jurisdiction.

There has been no domestic accountability for the crimes. Uganda is a state party to the ICC’s Rome Statute and was the first country to request an ICC investigation.

The ICC has worked in Uganda for many years, carrying out investigations and holding outreach meetings with victims’ groups. Since 2009, when the ICC issued an arrest warrant for then-president Omar al-Bashir of Sudan for crimes in Darfur, the court faced hostility from some African leaders. This backlash increased in 2013 when Uhuru Kenyatta and William Ruto, both accused by the ICC of crimes committed during Kenya’s 2007-2008 post-election violence, were elected president and deputy president of Kenya.

The case against Kenyatta was dropped in December 2014 and the case against Ruto was dropped in April 2016. President Yoweri Museveni of Uganda has supported criticism of the ICC and suggested pushing for withdrawal by African countries from the ICC but indicated that Uganda would cooperate with the ICC on Ongwen’s case.

The Ugandan government welcomed al-Bashir to attend Museveni’s inauguration in 2016 without threatening to arrest him, despite Uganda’s obligation to do so as an ICC member, and the ICC judges issued a finding of non-cooperation by Uganda in his arrest. Al-Bashir visited Uganda twice more as a fugitive prior to his ouster as Sudan’s leader in 2019. Following announced withdrawals from the ICC by South Africa, Burundi, and Gambia in October and November 2016, the government of Uganda, during the meeting of ICC members in November 2016 in The Hague, reaffirmed its commitment to remain in the ICC and to cooperate with it. Uganda also served as a member of the bureau of the ICC’s assembly of member countries between 2017 and 2020 and was re-elected for a second three-year term in December. In 2019, Uganda’s International Crimes Division ordered the arrest of al-Bashir and ruled that Uganda violated its national and international obligations when it failed to arrest him in 2016 and 2017. Al-Bashir is now in Sudanese custody. Burundi has become the only African state to follow through with withdrawal from the ICC as backlash against the court waned over time.

The ICC has opened more than two dozen cases, and pretrial or trial proceedings are ongoing in three cases. However, trials for war crimes and crimes against humanity have only been completed in a handful of cases, with four people convicted and four others acquitted. Some other cases have been dismissed for lack of evidence. Court officials have made a number of missteps, and stronger investigations by the ICC prosecutor, better choices in the selection of cases, more efficient proceedings, and more effective outreach with victims and affected communities are needed.

The court’s leadership took an important step forward in 2019, requesting an independent expert review of its performance.

The review, conducted by a panel of nine experts, released its final report at the end of September 2020.

The court also faces steep challenges in carrying out its mandate. Without a police force, it relies on states for cooperation in arrests, and that cooperation has been inadequate. Arrest warrants remain outstanding against 14 individuals. ICC member states have also held back on necessary budget increases even as the court’s workload has grown.

The court certainly needs to continue to learn from and correct mistakes, and to improve its work. But an effective ICC backed by the strong support of the international community is needed more than ever to send the message that impunity for mass atrocities will not be tolerated.

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