Ongwen ICC trial: Lord’s Resistance Army in the dock – why it matters

Dominic Ongwen makes first appearance before the International Criminal Court ©ICC-CPI
Since the late 1980s, Joseph Kony’s quasi-religious rebel group, the Lord’s Resistance Army (LRA), has been suspected of a campaign of brutal attacks against civilians during its insurgency in Northern Uganda, spread in recent years to neighbouring central African countries. Now, the first of his commanders is set to face justice before the International Criminal Court (ICC). With the highest number of charges brought in a case to date and over 4,000 victims registered to participate, the ICC trial of Dominic Ongwen, opening 6 December in The Hague, is a milestone in the evolving history of the Court. Here’s why.

Rebel group finally to see international accountability

The situation in Uganda was the first to reach the ICC. Uganda self-referred the situation between its forces and northern Ugandan rebel group the LRA in 2003. Ongwen was among five high-ranking LRA commanders subject to the first ICC arrest warrants – for war crimes and crimes against humanity. Two of these LRA suspects have since died, while another is believed dead and LRA leader Joseph Kony continues to elude capture, making Ongwen the first LRA commander to stand criminal trial before the ICC. Both the LRA and government forces are suspected of committing war crimes and crimes against humanity, but cases have so far only been brought against LRA members. Ugandan civil society, including through the Ugandan coalition for the ICC, has been advocating for many years for accountability for grave crimes nationally and through the ICC.

ICC prosecutor testing reach of Rome Statute

The case involves the most charges so far against an individual at the ICC. In a new open-ended charging strategy, the ICC Office of the Prosecutor (OTP) has charged Ongwen with 70 counts of crimes against humanity and war crimes, with 19 newly introduced charges addressing the earlier absence of specific sexual and gender-based crimes, including forced marriage, which is not explicitly mentioned in the Rome Statute but features as a recurring harmful consequence of armed conflict. Recruitment of child soldiers, alleged as a systematic LRA practice, was also added – the trial opening coincides with the OTP launch of its new policy on children in November 2016 to improve the investigation and prosecution of crimes directed against or disproportionately affecting children.

New chapter in accountability for SGBC?

Civil society has been fighting for years for sexual and gender-based crimes (SGBC) to receive the attention they deserve under international justice. While the ICC prosecutor has already started to forge the way towards this goal with her office’s policy on SGBC, the Ongwen trial offers another ground-breaking moment in this regard. Not only does the former LRA commander face a record number of SGBC charges before the ICC, but he is also the first ICC accused to face SGBC charges as a direct perpetrator, and against his own soldiers. The ICC prosecutor will look to prove that Ongwen’s own actions set a dangerous precedent for his subordinates.

New levels of victims’ participation

The Ongwen trial will showcase the highest level of victims’ participation in ICC history. Over 4000 victims have been granted the right to participate, and more may seek to join as the proceedings unfold. Given the substantial growth in victims’ participation at the ICC with this case, and given the central rights and needs of several groups of victims participating in this case under separate legal representatives, the Court has already had to clarify several elements of its victims’ participation process, including that independently appointed victims’ representatives can be entitled to ICC legal aid. How case law for victims’ participation evolves over the course of and following the trial will be one to look out for.

First chance for victims’ reparations in Ugandan conflict

Despite the intensity and pervasiveness of human rights violations afflicting Uganda during the height of the LRA conflict, the government has never put into place a formal reparations program for victims of the conflict. With post-conflict development programs in the country largely focusing on development at the expense of peace-building programs that include reparations, the ICC trial may represent the first genuine opportunity for a number of victims in Uganda to benefit from formal reparations in the event of a conviction. As such, some have pointed at reparations outcomes of the case as crucial to the success of the trial.

Victim or perpetrator: a new defense argument

According to his own account, Ongwen was abducted by the LRA at age 14, and as such he should become the first ever former child soldier to face charges before the ICC. With ICC jurisdiction limited to crimes committed by those over 18 years of age, Ongwen’s lawyers have made it clear that his abduction and enlistment will feature as a central part of the defense strategy. The outcome of this defense could set into motion an evolving understanding of not only mitigating circumstances under international law, but also the experience of children in situations of armed conflict.

Rome Statute system brings assistance as victims wait for justice

While the Trust Fund Victims (TFV) cannot plan reparations without a formal conviction, it already began to work with local organizations, governments, and the Ugandan Ministry of Health to operate various assistance programs across Uganda since 2008. These projects provide support to over 110,000 victims of serious crimes – some of whom may also be participating in the Ongwen trial – largely through physical and psychological rehabilitation. More recently, several programs with a special SGBC focus have been launched.

An increasingly visible Court

The Ongwen case has presented a real opportunity for the ICC to enhance its outreach program and to bring proceedings closer to victims, and in the process to become more visible globally. During the pre-trial phase, the ICC Outreach Unit launched a series of eight radio talk shows to bring to The Hague-based proceedings to the most-affected, often remote communities in Uganda. A live-screening of the confirmation of charges hearing was subsequently organized, for the first time, with local partners in Lukodi, where Ongwen allegedly led an LRA attack against an internally displaced persons camp.

A case for inter-state cooperation

Ongwen’s appearance at the ICC has been largely attributed to the combined efforts of ICC member and non-member states alike. Among the latter, the United States offered a reward for Ongwen’s capture; the suspect himself surrendered to US forces in the Central African Republic (CAR) in 2015. The African Union and local authorities in both the CAR and Uganda subsequently worked together to ensure Ongwen’s transfer to The Hague. Dutch and Belgian authorities were also credited for their roles in ensuring Ongwen’s successful transfer, while Uganda, which has in recent years become vocally critical of the ICC, accepted ICC jurisdiction in the case after conceding that its own International Crimes Division was not yet up to the task.

Complementarity: Ongwen a chance for lessons learned

The Rome Statute cornerstone principle of complementarity, obliging ICC member states to take primary responsibility for the investigation and prosecution of Statute crimes, will be on display during the Ongwen trial as domestic proceedings unfold against mid-level LRA commander Thomas Kwoyelo at the International Crimes Division (ICD) in Uganda. The simultaneous proceedings promise lessons learned for how the two systems can work in parallel, and for how national jurisdictions can benefit from the Rome Statute system, as a recent ICD decision allowing victims’ participation demonstrates.

Civil society comment

"Victims of the LRA in Northern Uganda have waited over 10 years for justice for the shocking crimes that have torn apart their lives and communities,” said Mohammed Ndifuna, chief executive officer of Human Rights Network-Uganda. “We are encouraged by the range of charges against Ongwen—including for sexual and gender-based violence and crimes against children—that reflect the broad nature of crimes committed in Northern Uganda and permit a greater number of victims to access justice and receive redress through the ICC. It is now up to ICC judges to decide whether the prosecutor has enough evidence to back up the charges.”

“This is a significant moment for the ICC as it moves forward one of its first cases. Seeing Ongwen at the ICC gives hope to victims that the alleged author of some of the worst atrocities in recent memory will at last be held accountable,” said Stephen Lamony, head of advocacy and policy - UN and Africa for the Coalition for the ICC. “Justice will not truly be done in this case if the victims and affected communities far away from The Hague are unable to see it done. Governments must ensure that the ICC has the resources to keep the Ugandan people informed about the proceedings against Ongwen.” 

 “Whatever the political grudges, fear or concern African leaders have towards ICC, whether legitimate or not, it doesn’t outweigh the victim's’ need for justice. Ugandan LRA war victims welcomes the ICC’s trial of Ongwen, as it sends a clear message that perpetrators will not be shielded by any anti-ICC campaign,” said Victor Ochen, Nobel Peace Prize Nominee, UN Ambassador for Peace and Justice and Director for AYINET

 ‘This case is important for a number of reasons,’ said Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice. ‘It is the first ICC case to reach the trial stage in the Uganda Situation in relation to the 26 year conflict between the LRA and the Government of Uganda, considered to be the longest running conflict on the African continent.’

‘In addition, this is the first time before the ICC that charges of forced pregnancy and forced marriage have been brought by the OTP. These charges, combined with the characterisation of sexual and gender-based violence as other forms of criminality, such as torture and enslavement, are unique features of the Ongwen case,’ Inder added. ‘We are very encouraged to see the OTP continuing to implement its Policy on Sexual and Gender-based Crimes and using the full extent of the Statute to characterise the complex nature of gender-based violence. The Ongwen case is the first time that the crime of forced pregnancy has been prosecuted by an international court. These are all positive signs of ongoing progress within international humanitarian and criminal law.’

“We welcome the Registrar’s decision to grant legal aid to victims participating in this case and represented by the counsel of their choice. The history of victims’ engagement has been unprecedented in Uganda. The legal aid should be now designed and implemented by the Registry in a way to effectively satisfy victims’ rights and needs in order to ensure the most meaningful participation,” noted FIDH President Dimitris Christopoulos.

“Facing the lack of national judicial proceedings targeting LRA top leaders, victims of LRA crimes have been waiting for justice for up to fourteen years. We hope that Ongwen’s trial will shed the light on the horrendous crimes suffered by communities in Northern Uganda and his alleged responsibility. We also hope that this trial will be followed by other proceedings targeting those who bear the greatest responsibility, thereby contributing to more accountability and deterrence of crimes in the region,” FIDH Vice-President and FHRI Deputy Executive Director (Programs) Sheila Muwanga highlighted.

“The ICC’s trial of Ongwen highlights its role as a crucial court of last resort. Victims’ advocates across Africa have urged their governments to support the ICC following recently announced withdrawals by three African countries,” Human Rights Watch’s Associate International Justice Director Elise Keppler added in reference to the current political challenges.

“It is clear that the needs of the victims of the conflict in northern Uganda have not been properly addressed yet, despite the devastating effect that the crimes continue to have on survivors. This trial should act as a catalyst also for Uganda to take forward discussions that have stalled around the establishment of a comprehensive reparation policy,” said Carla Ferstman, Director of the international human rights organization REDRESS.

"For victims of the LRA to feel a sense of justice, Ongwen’s trial should also be used as an opportunity for Ugandans to open discussions about the enduring consequences of conflict. This trial at the ICC should be complemented not only by concerted action by the Ugandan criminal justice system, but also by other processes that can contribute to a broader and more nuanced sense of justice, including restorative measures that will foster healing, rehabilitation, reintegration, and recognition of dignity. As international attention refocuses on Northern Uganda through the Ongwen trial, let us make sure not to reduce the notion of justice to the fate of a single man, but instead use it as a catalyst to examine and redress the enduring impacts of the conflict in Uganda on its many victims," urged Sarah Kihika Kasande and Virginie Ladisch of the International Centre for Transitional Justice (ICTJ)