Ongwen: Expanded charges would allow more victim participation

On September 18 2015, the prosecutor of the International Criminal Court (ICC) announced that she will charge Dominic Ongwen with 67 counts of war crimes and crimes against humanity. This marks a significant expansion of the charges against Ongwen, and potentially a greater opportunity for reconciliation in affected communities.

Ongwen, an alleged brigade commander of the Lord’s Resistance Army (LRA), was originally charged with three counts of crimes against humanity (murder, enslavement, and inhuman acts) and four counts of war crimes (murder, cruel treatment of civilians, intentionally attacking a civilian population, and pillaging) committed in a camp for internally displaced persons (IDPs) in the Gulu district of Northern Uganda. In March, the prosecutor had requested a postponement of Ongwen’s confirmation of charges hearing to allow more time to carry out additional investigations. She indicated then that she might bring fresh charges against Ongwen.

The new charges will include sexual and gender based crimes as well as crimes related to the conscription and use of child soldiers. The geographic scope of the charges against Ongwen has also been extended beyond crimes he allegedly committed in the Lukodi IDP camp in Gulu, to include alleged crimes in the Odek IDP camp in Gulu, the Pajule IDP camp (then located in Pader district), and the Abok IDP camp (then located in Apac district).

This is a significant addition of charges, and may reflect prosecutor Fatou Bensouda’s new prosecutorial strategy. It also allows more victims the opportunity to participate in the proceedings—and to participate in transitional justice processes. The Justice and Reconciliation Project (JRP), a local civil society organization (CSO) working on transitional justice issues in Northern Uganda, rightly credits this development for giving additional communities the opportunity to be involved in accountability discussions.

The original charges were limited in scope to seven crimes against humanity and war crimes allegedly committed in a single IDP camp, the Lukodi IDP camp in Gulu, a district of Acholi in Northern Uganda. However, the Lord’s Resistance Army (LRA) allegedly committed heinous crimes in different parts of Northern and Eastern Uganda, including the Acholi, Lango, West Nile, and Teso sub-regions. Additionally, victims’ narratives of the war have consistently highlighted acts of sexual and gender based violence as well as child abduction allegedly committed by the LRA, a fact which was not reflected in the original charges against Ongwen.

Given the limited geographic and thematic scope of the original charges, the ICC was bound to face significant challenges in rallying support for its work among affected communities. How would it explain a prosecutorial strategy that appeared to prioritize the interests of one group over another? Unfortunately, under such circumstances, no response is satisfactory for victims because for a number of them, the ICC is the accountability tool for any form of plight they suffered in the course of the conflict. Explanations of prosecutorial decisions such as the selection of charges as well as their geographical scope therefore have a limited impact.

Victor Ochen, executive director of the African Youth Initiative Network, considers the prosecutor’s decision a direct response to the demands of victims and civil society. The prosecutor’s decision is therefore seen as a commendable effort to take into account the interests of victims. This underscores the importance of two-way communication between the court and affected communities and may go a long way in increasing these communities’ confidence in the court.

It should also be recalled that during the prosecutor’s visit to Uganda earlier this year, civil society actors called upon the court to promote a broader pursuit of justice and reconciliation in Northern Uganda and among LRA-affected communities. Over the years, one issue that has partly undermined reconciliation efforts in the region has been the intensive focus on the Acholi sub-region by a number of actors, including the ICC. Even though the Acholi region was the epicenter of the LRA conflict, other communities that have equally endured suffering as a result of this conflict have consistently felt left out of the conflict narrative. The prosecutor’s latestnotice of intended charges recognizes the atrocities meted out against communities in the Teso and Lango sub-region, which may contribute to reconciliation among these different LRA-affected communities.

While commending the prosecutor’s decision, some civil society actors still note that the investigation team could have done more to extend the geographical scope of Ongwen’s alleged crimes. This does not, however, appear to impact negatively on their support for the court, but rather re-focuses their energies on what the ICC, in partnership with other stakeholders, needs to do beyond the legal process to address the needs of victims. For example, Nathan Ebiru, the Executive Director of Amuria District Development Agency, a local CSO working with victims of conflict in the Teso Region—which is not covered in the new charges—emphasizes the need for more resources to implement physical and psycho-social rehabilitation projects for victims in his region. However, the court’s victim participation and reparations processes are dependent on the prosecutor’s charges, which means this region stands to benefit minimally from the ICC reparation program in the event of a guilty verdict for Ongwen. The hope for victims in this region and others not covered by the prosecutor’s charges therefore lies in the victim assistance mandate of the court’s Trust Fund for Victims, along with other external development programs.

Questions still linger about the prosecutor’s criteria for the expansion of charges. For example, Lino Owor Ogora, former head of JRP and transitional justice specialist, noted that this may subject the prosecutor’s case to undue controversy and debate. This is because with a wider scope, the prosecution increases its burden of producing the necessary evidence which in turn creates room for more questions and doubts in locations where the evidence is scarce. If the conviction of Ongwen can be achieved using available evidence gathered for the original charges, then some might think there is no need venture in search for more or expand the case. He further noted that while the inclusion of sexual and gender based violence charges is recognized as a step in the right direction, it is clouded by the challenges of proving such crimes—as has been seen from the experience of the ICC’s engagement in the Democratic Republic of Congo.

It therefore remains to be seen whether the prosecutor’s decision will result in actual benefits for the victims of the LRA’s crimes in Uganda. What is apparent, however, is that the move will present more communities with the chance to participate in trial proceedings, and ideally to contribute to reconciliation efforts in these regions.

This article was originally published on International Justice Monitor.

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