1. Who is Dominic Ongwen and what is the Lord’s Resistance Army?
2. What was Dominic Ongwen accused of?
4. Given that the crimes happened in Uganda, why wasn’t Ongwen tried at the domestic level?
5. I see. So, what happened after Ongwen was transferred to the ICC?
6. Did victims participate as well? How many? Were they represented?
8. Why is this verdict particularly important?
9. Wow, that’s great for the fight against impunity! What are the next steps following the verdict?
10. Will the fact that Ongwen was a child soldier be taken into account in sentencing him?
1. Who is Dominic Ongwen and what is the Lord’s Resistance Army?
Dominic Ongwen was born in Coorom, Kilak County, Amuru District, Northern Uganda in 1975. He was abducted as a child and recruited to become part of the Lord’s Resistance Army (LRA), of which be became, with time, one of the most senior commanders. [1]
The LRA is an armed rebel group led by Joseph Kony which was organised around 1987. It initially fought the Ugandan government in Northern Uganda, with incursions into Southern Sudan. From at least July 2002 to December 2005 an armed conflict not of an international character between the LRA and armed forces of the Government of Uganda existed in Northern Uganda. 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 Southern Sudan, the Democratic Republic of Congo (DRC), and the Central African Republic (CAR).
In pursuing its goals, the LRA has engaged in a cycle of violence and established a pattern of “brutalisation of civilians” by acts including murder, abduction, sexual enslavement, mutilation of men, women and children, as well as mass burnings of houses and looting of camp settlements. The abducted civilians, including children, are said to have been forcibly recruited as fighters, porters and sex slaves to serve the LRA and to contribute to attacks against the Ugandan army and civilian communities. [2] There was also a policy of abducting women and girls to distribute them among LRA fighters to serve as domestic slaves and/or exclusive conjugal partners made, inter alia, to perform domestic duties and to submit to sexual intercourse. [3]
2. What was Dominic Ongwen accused of?
Ongwen was, originaly (in 2005), charged with three counts of crimes against humanity and four counts of war crimes. However ten years later, after Dominic Ongwen was transferred to the ICC, the Prosecutor decided to extend the charges with additional crimes relating to attacks in the Pajule, Odek and Abok IDP camps and including sexual and gender-based crimes.
In total, Dominic Ongwen was charged with 70 counts of war crimes and crimes against humanity, that he had allegedly committed between July 2002 and December 2005 in four internally displaced persons (IDP) camps in Northern Uganda (Lukodi IDP camp in Gulu, Odek IDP camp in Gulu, Pajule IDP camp in Pader district, and the Abok IDP camp in Apac district). The charges included: intentionally directing attacks against a civilian population, torture, murder, enslavement, inhumane acts of inflicting serious bodily injury and suffering, use and conscription of child soldiers, pillaging, persecution on political grounds and several sexual and gender-based crimes including rape, forced marriage, sexual slavery and forced pregnancy. [4]
3. The crimes committed by Ongwen happened a long time ago. Why did the trial take place over 10 year later?
Uganda ratified the Rome Statute on 14 June 2002, hence recognizing the jurisdiction of the Court over crimes committed on its own territory. In a letter dated 16 December 2003, and following years of unsuccessful peace talks with the LRA, the Government of Uganda decided to refer the situation concerning Northern Uganda to the Office of the Prosecutor, meaning that the Government asked the Court to investigate the crimes committed on its territory. It was the first State Party to the ICC Statute to self-refer. On 29 July 2004, the Prosecutor determined that there was a reasonable basis to open an investigation into the situation concerning Northern Uganda. [5]
On 8 July 2005, Pre-Trial Chamber II issued warrants of arrest against Dominic Ongwen, together with four other LRA senior leaders - Joseph Kony (leader, chairman and LRA commander), Vincent Otti (vice-chairman and LRA second-in-command), Raska Lukwiya and Okot Odhiambo - for the commission of crimes against humanity and war crimes and requested the Republic of Uganda to search for, arrest, detain and surrender them to the Court. The first two remain at large, and the proceedings against the two others were terminated due to their passing.
For more than ten years, however, national, regional and international security forces were unable to apprehend these suspects. It is only on 6 January 2015, that Dominic Ongwen surrendered to US military stationed in CAR, fighting against the LRA. Following talks between the US, CAR and Uganda, Ongwen was transferred into the custody of the Ugandan contingent of the African Union Anti - LRA Task Force. He was then transferred to the ICC detention center in the Hague where he arrived on 21 January 2015, triggering the proceedings towards his confirmation of charges hearing.
4. Given that the crimes happened in Uganda, why wasn’t Ongwen tried at the domestic level?
According to the Rome Statute, the ICC has jurisdiction over the crimes committed in a State Party if this State is deemed “unable” or “unwilling” to investigate and prosecute those responsible itself. It’s called the “principle of complementarity”.
In the specific situation of Uganda, when the original arrest warrants were issued, there seemed to be no capacity at national level to prosecute Ongwen and the other LRA commanders. The question of the ICC jurisdiction arose after his arrest, given that the Uganda government had then created the International Crimes Division (ICD) of the High Court of Uganda dedicated to try war crimes, crimes against humanity, and other crimes.
However, due to serious concerns regarding the actual potential of the ICD at the time, the proceedings were carried out at the international level. One obstacle to domestic proceedings that was particularly taken into account was the 2000 Amnesty Act implemented by Uganda government which gives blanket amnesty to all rebels - including LRA members - who willingly surrender and renounce their participation in armed rebellion against the State. Over 27,000 LRA members (along with approximately another 15,000 members of other armed groups) have received amnesty under the law, or half as many, according to official statistics. [6]
The only case to date related to the conflict in Northern Uganda that has been brought before the International Crimes Division is against Thomas Kwoyelo, a former LRA member captured in the DRC in 2008 and first appearing before the ICD in July 2011. Kwoyelo was charged with war crimes and crimes against humanity. Kwoyelo’s proceedings were halted after Uganda’s Constitutional Court ruled in September 2011 that he was entitled to amnesty under the country’s Amnesty Act and ordered the ICD to cease his trial. After several appeals proceedings, the Supreme Court of Uganda ruled in April 2015 that Kwoyelo’s trial was constitutional and did not violate the Amnesty Act, as amnesties cannot be granted for crimes under international law. Charges have been extended to include sexual and gender-based crimes (SGBC). Several pre-trial hearings were held in 2016, and the Court confirmed 93 charges against Thomas Kwoyelo in September 2018. The only SGBC held in the charges were rape. The trial is still ongoing and was suspended due to the COVID-19 pandemic. [7]
5. I see. So, what happened after Ongwen was transferred to the ICC?
On 26 January 2015, Ongwen made an initial appearance before the single Judge of Pre-Trial Chamber II. In February, the Prosecutor requested a postponement of the confirmation of charges hearing to allow more time to carry out additional investigations, after which she provided, on 21 December 2015, the extended list of charges she intended to bring against Dominic Ongwen. [8] On 23 March 2016, the Pre-Trial Chamber confirmed the 70 charges against Dominic Ongwen. [9]
The trial opened on 6 December 2016. After the judges read the charges and verified that the accused understood their nature, Dominic Ongwen pleaded non-guilty on all accounts. This means that he denied being responsible for all the crimes he was charged for.
The trial was composed of 234 hearing over the course of 4 years during which the OTP presented a total of 109 witnesses and experts while the defence team presented a total of 63 witnesses and experts. Moreover, 7 witnesses and experts were called by the Legal Representatives of the Victims participating in the proceedings. [10]
6. Did victims participate as well? How many? Were they represented?
Yes, they did. Participation in ICC proceedings and legal representation are rights guaranteed to victims by the Rome Statute. Their participation, established in Article 68(3) of the Statute, is a key part of the accountability process and thus constitutes an essential component of justice. As a main principle, recalled in Rule 90(1) of the ICC Rules of Procedure and Evidence, victims are free to choose a legal representative. [11]
Broadly, the established practice at the Court under Article 68(3) of the Rome Statute has allowed victims’ representatives to: 1) attend and participate in hearings; 2) file written submissions; 3) make opening and closing statements; 4) call witnesses; 5) submit and challenge evidence with the permission of the judges; 6) gain access to confidential submissions by the parties and the evidence; and 7) to be notified of issues or proceedings which could affect the victims. [12]
Victims of LRA crimes have taken great interest in the Ongwen case and many decided to apply for participation in the case before the ICC. A total number of 4,095 victims were accepted to participate in the proceedings in the Ongwen case. [13]
Victims have been and continue to be represented (because the decision doesn’t end the proceedings!) by two teams of lawyers. A first group of approximately 2,601 participating victims is represented by two lawyers, Joseph Akwenyu Manoba from Uganda and Francisco Cox from Chile, who were chosen by these victims themselves. Paolina Massidda from the Office of Public Counsel for Victims (OPCV) and Jane Adong (Ugandan Field Counsel) are representing a second group of approximately 1,502 victims who did not choose a lawyer (legal representation of 4 victims were further clarified on 30 November 2016).
7. I understand that a lot of victims and witnesses contributed to the trial. What did the judges decide on 4 February 2021?
After examining all the collected evidence, on 4 February 2021, Trial Chamber IX found Dominic Ongwen guilty of a total of 61 crimes against humanity and war crimes from the 70 of which he had been accused. These crimes include attacks against civilian population, murder, attempted murder, outrages on personal dignity, torture, enslavement, pillaging, persecution on political grounds, destruction of property and the conscription of child soldiers. He was also convicted for each and every sexual and gender-based crime that the Prosecution had introduced, which are forced marriage, sexual slavery, rape, and force pregnancy.
The fact that Ongwen was found guilty means that the judges were satisfied beyond all reasonable doubt that he was responsible for the above-mentioned crimes. The summary of the verdict was read out in public, and the names of victims of each of the crime were cited in a welcomed precedent. The full decision was made available on the ICC website the very same day.
8. Why is this verdict particularly important?
The verdict announced against Dominic Ongwen is a milestone for the ICC and for the Ugandan victims for two main reasons.
First, Ongwen is the first LRA commander to be convicted for the atrocious crimes committed by the rebel armed group. This conviction therefore sends a strong message to other LRA commanders who are still at large and/or actively involved in atrocities committed not only in Uganda, but also in Southern Sudan, the DRC and CAR.
Second, Ongwen’s verdict is a turning point in the conviction of sexual and gender-based crimes at the ICC. While a previous accused, Bosco Ntaganda, was already found guilty in 2019 of the crimes of rape and sexual slavery committed in the DRC, Ongwen’s conviction is the first containing such a wide range of SGBC, including sexual slavery, rape, forces marriage and forced pregnancy, the latter being considered at the Court for the first time. Acts of sexual violence also constituted the crimes of torture, enslavement and outrage upon personal dignity.
This recognition of the gravity of these crimes is particularly important and brings hope to thousands of victims, in the Ugandan situation and beyond, to see one day justice served for the sexual and gender-based crimes they have themselves suffered. It is a step towards more accountability for these crimes.
9. Wow, that’s great for the fight against impunity! What are the next steps following the verdict?
Now that Dominic Ongwen has been convicted, the prosecution and/ or the defence have 30 days to appeal the judges’ decision. Given the outcome of the trial, it is very unlikely that the prosecution will appeal the verdict. The ICC prosecutor, Fatou Bensouda, has declared: “As a prosecuting office, we have worked tirelessly throughout the proceedings with an unyielding commitment to our mandate, and on the strength of the evidence we have scrupulously collected, to bring a measure of justice to the victims of Ongwen’s crimes. Today is their day." [14]
The sentencing hearing will be held during the week of 12-16 April 2021, a date that can also be appealed by the prosecution and the defence. [15] For this purpose, the Chamber will receive submissions from the Prosecutor, the Defence and the Legal Representatives of Victims.
In terms of actual sentence, the Rome Statute provides for a maximum of 30 years of imprisonment, and under exceptional circumstances a life imprisonment and/or a fine.
Another important step following the verdict and sentencing of an accused is the “reparation phase”. During this stage, participating victims can apply for reparations, and Judges eventually decide on appropriate reparations measures to deliver. The decision on reparations is to be implemented by the Trust Fund for Victims. As of today, reparations measures have been granted at the ICC in the cases of Lubanga (DRC), Katanga (DRC), and Al Mahdi (Mali), but have not yet been fully implemented. This phase is an important and challenging part of the proceedings, as past cases have shown. [16]
10. Will the fact that Ongwen was a child soldier be taken into account in sentencing him?
We can only assume, but it can.
In this case, the Court established that they were no grounds excluding Dominic Ongwen’s criminal responsibility. However, the judges did recognize his suffering as a child soldier and that this might be considered at a relevant time.
In general, the ICC Statute does not provide jurisdiction over crimes committed by a person under the age of 18 years. Dominic Ongwen, however, was prosecuted and convicted for international crimes he committed as an adult. Ongwen’s status as a child abductee could be a mitigating factor during sentencing.
In other words, we don’t know, but it is possible, and we think it might.
11. I forgot to ask: Why did the ICC not prosecute Ongwen for international crimes committed by the Lord’s Resistance Army in other states parties to the ICC Statute, as in Central African Republic or Democratic Republic of Congo?
The LRA has allegedly committed grave crimes outside of Uganda as well, including in the Democratic Republic of Congo, the Central African Republic and South Sudan. Nonetheless, the ICC has focused its investigation in Uganda, due to the State’s referral of the situation in 2003 establishing the Court’s jurisdiction. The ICC must establish jurisdiction over crimes in each State where investigations occur, though jurisdiction of the Court already exists in CAR and DRC due to separate situations previously referred. Thus far, no national proceedings have occurred to bring about justice for LRA crimes in the wider region.
12. And, last but not least, what about other LRA commanders, especially Joseph Kony? And what about crimes committed by Ugandan forces? Is there any possibility to hold others accountable for these crimes?
As mentioned earlier, there are still pending ICC arrest warrants against LRA commanders Joseph Kony and Vincent Otti. It is very important that States, including Uganda, fully cooperate with the ICC to find them, arrest them and prosecute them, whether at the national or international level. The Court was not provided by a police force and therefore depends on States’ cooperation to comply with its mandate.
Regarding the crimes committed by the Ugandan authorities, that’s a very good point. Once an investigation is open, the ICC Office of the Prosecutor is free to investigate and prosecute all the most responsible of crimes falling within the scope of said investigation. Therefore, members of Ugandan authorities could be prosecuted for the crimes they perpetrated in the context of the conflict in Northern Uganda from July 2002 to December 2015. To date, however, no ICC arrest warrant that we know of has been issued against other individuals than the LRA commanders above-mentioned. They could be confidential. No domestic proceedings have been initiated relating to alleged international crimes committed by members of Ugandan authorities during the conflict.