Tag Archives: dominic ongwen

TJ Monitor: Next Ongwen hearing at the ICC may be held in January

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TJ Monitor

 

Lukodi village, the site of a 2004 massacre by the LRA for which Dominic Ongwen is accused of leading.
Lukodi village, the site of a 2004 massacre by the LRA for which Dominic Ongwen is accused of leading.

Last month, we blogged about former Lord’s Resistance Army (LRA) Commander Dominic Ongwen’s first appearance at the International Criminal Court (ICC) for war crimes and crimes against humanity. As part of our TJ Monitor, we will be giving updates on the case and other related proceedings.

Non-redacted warrant of arrest reveals Ongwen was charged with leading Lukodi massacre

On 28 January, the ICC reclassified its warrant of arrest for Dominic Ongwen its public. Previously, the warrant indicated that Ongwen was charged with seven counts of war crimes and crimes against humanity under the Rome Statute for leading a massacre in 2004 on an unnamed internally displaced persons (IDP) camp in northern Uganda. Following Ongwen’s surrender and transfer to The Hague, the redactions on the warrant were removed, revealing that the attack Ongwen is alleged to have led was on an IDP camp in Lukodi, a village 17 kilometres from Gulu town, on 19 May 2004.

In 2011, the Justice and Reconciliation Project documented the experiences of survivors of what has come to be known as the Lukodi massacre. According to witnesses to the massacre, including formerly abducted persons with insight into the workings of the rebel group, the LRA attacked the camp as an act of revenge on Lukodi’s residents because they believed they were collaborating with the government in its fight against the rebels. Respondents also said that the massacre was led by an LRA commander called “Tulu”.

Following the massacre, hasty burials were carried out in shallow graves for the approximately 60 people that died. Exhumations of the bodies were also reported to have been conducted by government officials, apparently as a response to ongoing investigations related to Uganda’s referral of the LRA situation to the ICC in 2003.

Ongwen’s case separated from other LRA top commanders

On 6 February, Single Judge Ekatarena Trendafilova, who is presiding over the Pre-Trial Chamber, severed Ongwen’s case from the charges levelled against the other top LRA commanders indicted by the ICC, Joseph Kony, Vincent Otti and Okot Odhiambo, who are still “at large”. This means that Ongwen’s case will go ahead independently of the other commanders’.

This decision was rendered on the basis that pursuing the charges against all four would “bring about serious prejudice to Mr. Ongwen as it has the potential of prolonging the pre-trial proceedings against him”. In addition, the Judge ordered that the case be assigned a new case number, and all documents and decisions rendered in relation to it be assigned to its new case record.

Prosecution applies for the postponement of confirmation of charges

Last Thursday, the Office of the Prosecutor applied to the Pre-Trial Chamber for Dominic Ongwen’s confirmation of charges hearing to be rescheduled to 31 January 2016 for several reasons, including the need to provide time for the prosecution to renew contact with its witnesses and assess their “security situation”. The provisional date for the confirmation of charges hearing was originally set for 24 August 2015 during Ongwen’s initial appearance hearing in January.

The confirmation of charges hearing

This hearing will be held by the Pre-Trial Chamber to confirm the charges on which the Prosecutor intends to seek trial. At the hearing, the Prosecutor presents evidence to support each charge leveled against the accused in order to establish “substantial grounds to believe” that he or she committed the crimes charged. The accused may in response object to the charges, challenge the evidence presented by the Prosecutor and present evidence. The Pre-Trial Chamber will then confirm the charges in relation to which it has determined that there is sufficient evidence and commit the accused to the Trial Chamber for trial.
Currently, Dominic Ongwen’s confirmation of charges hearing is set for 24 August 2015.

In terms of Article 67 (2) of the Rome Statute, the Prosecutor is obliged to disclose evidence to the defence which may she believes will show Dominic Ongwen’s, as the accused, innocence, mitigate his guilt or affect the credibility of the prosecution evidence during the trial. In order to do this, the prosecution argued that there was a need to review up to 94,000 pages of its existing evidence given the years of dormancy the case has had. Additionally, the prosecution says it will have to renew contact with its 32 existing witnesses regarding their statements and assess their security, which it suggested would take till at least 7 April 2015. Following this, 140 additional witnesses would also possibly be interviewed, depending on whether their statements are assessed to be disclosable in terms of Article 67.

Other reasons cited for additional time to by the prosecution, was because they would need to apply for redactions of prosecution evidence, witness assessments and other items related to the case by at least 8 May. They would also need to conduct re-investigations and, possibly, additional investigations into the case, as well as transcribe, translate and analyse up text and audio interviews, some of which could take from four to five months. The prosecution also suggested considering adding new charges against Ongwen was also a factor which would require extra time beyond August.

Following this application, the Single Judge will render a decision after considering the request and ascertaining the views of the defense.

 

Dominic Ongwen Case Timeline

26 January 2015 Dominic Ongwen’s initial appearance hearing at held at the ICC
29 January ICC warrant of arrest for Dominic Ongwen re-classified as public.
12 February The Office of the Prosecutor submits an application for the postponement of Dominic Ongwen’s confirmation of charges hearing from 24 August 2015 to 31 January 2015.
7 April The date by which the prosecution suggests the security assessment of its witnesses would be complete
8 May The date by which the prosecution expects to complete its applications for redactions for items in its possession relating to its 32 witnesses.
24 August Provisional date set for the confirmation of charges hearing
31 January 2016 Proposed date for the confirmation of charges hearing
Two photos of Dominic Ongwen

The case of Ongwen is an opportunity for justice for conflict survivors in northern Uganda

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Two photos of Dominic Ongwen
In 2008, JRP’s Field Note “Complicating Victims’ and Perpetrators in Uganda” examined questions of individual responsibility, agency and collective victimisation with Dominic Ongwen as a case study.

In 2008, the Justice and Reconciliation Project conducted research into the life of Lord’s Resistance Army commander, Dominic Ongwen. This documentation followed his and four other top LRA commander’s indictments by the International Criminal Court for crimes against humanity and war crimes. The Ongwen case study, that of a person abducted when he was “too little to walk” and who eventually rose to a senior rank in the rebel army, illustrated the complexities of notions of ‘justice’ and ‘victimhood’ in the LRA-Government of Uganda conflict. In particular, it drew attention to the need for justice processes that handle cases involving individuals who carry the dual victim-perpetrator identity, that promote sustainable peace and which are sensitive to the needs of communities affected by the war. Six years after JRP’s report, there is still a need to reiterate the need for this.

Complex identities

Having been abducted around the age of nine, Dominic Ongwen’s victimhood is a strong factor that should be taken into consideration during his trial and any future justice mechanism. He is just one example of one of many who are both victims of abduction and the state’s failure to protect its citizens, and who were systematically indoctrinated into the LRA and other rebel groups in Uganda. Therefore, strategies appropriate to these complex identities should be implemented, such as local leaders dialoguing with and sensitising communities on them, affected persons being consulted, and future investigations by the Court considering the historical context in which these crimes are committed in order to identify complex political victims.

Reparations

JRP’s work in northern Uganda has consistently revealed that conflict-affected communities’ concept of justice relate to their need for support to help rebuild their lives after decades of war. Many of these communities have been waiting for decades for their challenges to be addressed and often cite reparations in the form of compensation to victims of mass atrocities and their families, healthcare, education and livelihood support as their most pressing needs. It is vital, therefore, that any justice process involving Ongwen or any other matter related to the northern Ugandan conflict promotes the provision of reparations.

Community participation

It is also important that a justice process, such as Ongwen’s trial, should be as participatory as possible and ensure the rights of victims to have their interests heard. This means that witnesses should receive adequate protection, affected community views should be solicited and formal proceedings should be as expeditious as possible. Outreach by the Court is also essential to keep communities informed about the ongoing processes and to build legitimacy and understanding of what is going on. A high level of participation in this vein would contribute to a sense of ownership of the process by northern Ugandan communities

Gender justice

Any sort of accountability process should also accommodate the unique needs of victims that belong to vulnerable groups, such as women and children. Female victims, for example, often face health complications from combat and sexual and gender-based violence. In addition, they also struggle with providing education for themselves and are unable to support the children they bore during conflict. Any justice process that comes to bear should take into account the gaps that already exist in addressing this. It should, for instance, properly investigate crimes involving vulnerable groups, level charges that reflect SGBV and ensure special reparations for victims of SGBV crimes. A trial, in particular, should make provisions for victims to testify by providing adequate psychosocial support to them and by protecting their identities.

Complementary TJ

While attention at the moment is naturally focused on formal court processes, other transitional justice processes should not be forgotten. Processes such as memorialisation, widespread reparations and truth-telling are also crucial in addressing past injustices that have been levelled towards communities in northern Uganda. The work of the Justice and Reconciliation Project has continually emphasised the need for a comprehensive transitional justice policy, based on views garnered from conflict-affected communities, which the Government of Uganda continues to work on. Both these efforts and the needs of the communities affected by conflict should not be forgotten in the midst of the Ongwen case.

“Analysis: Should child soldiers be prosecuted for their crimes?,” IRIN News, 6 Oct. 2011

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“Analysis: Should child soldiers be prosecuted for their crimes?,” IRIN News, 6 Oct. 2011
http://www.irinnews.org/report.aspx?reportid=93900

JOHANNESBURG, 6 October 2011 (IRIN) – International human rights law meanders between the vague and the hazy when it comes to its stance on the age of criminal responsibility and what, if any, punishments should be imposed on child soldiers guilty of war crimes.

The godfather of human rights laws, the Geneva Conventions, oblige all member states to act on grave breaches of human rights, but does not stipulate the age of criminal responsibility.

Robert Young, deputy permanent observer and legal adviser to the International Committee of the Red Cross (ICRC) based in New York, told IRIN international humanitarian law (IHL) remains “silent” on the age of responsibility for perpetrators of grave human rights abuses, such as wilful killing, torture and inhumane treatment.

International Criminal Court (ICC) Article 26 prevents the court from prosecuting anyone under the age of 18, but not because it believes children should be exempt from prosecution for international crimes, “but rather that the decision on whether to prosecute should be left to States,” says the Office of the Special Representative of the Secretary-General (SRSG) for children and armed conflict (Working Paper Number 3: Children and Justice During and in the Aftermath of Armed Conflict, September 2011). “[The] exclusion of children from the ICC jurisdiction avoided an argument between States on the minimum age for international crimes,” it noted.

The age of criminal responsibility varies from country to country, from 7-16, but the bar is most commonly set at 14.

Although IHL does not set a minimum age for criminal responsibility for international crimes, it is argued that a yardstick has been laid down for some form of indemnity through IHL’s recognition that recruitment of child soldiers under 15 was a war crime.

The Children and Justice During and in the Aftermath of Armed Conflict report says: “If a child under the age of 15 is considered too young to fight, then he or she must also be considered too young to be held criminally responsible for serious violations of IHL while associated with armed forces or armed groups.”

“Children are often desired as recruits because they can be easily intimidated and indoctrinated. They lack the mental maturity and judgment to express consent or to fully understand the implications of their actions… and are pushed by their adult commanders into perpetrating atrocities,” the report said.

That children should be held accountable for their crimes during conflicts was acknowledged by the report, but “more effective and appropriate methods, other than detention and prosecution are encouraged, enabling children to come to terms with their past and the acts they committed.”

The report said child soldiers should not be prosecuted “simply for association with an armed group or for having participated in hostilities… There are instances where children are accused of crimes under national or international law and are prosecuted before a criminal court. Prosecution of a child should always be regarded as a measure of last resort and the purpose of any sentence should be to rehabilitate and reintegrate the child into society.”

Victims and perpetrators

The International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) did not cite a minimum age for criminal responsibility, but no one under 18 appeared before the tribunals. The Statute of the Special Court for Sierra Leone (SCSL) provided the court with jurisdiction over any person above 15, but the court’s prosecutor decided against indicting children for war crimes because of their dual status as both victims and perpetrators.

It may appear a grey area easily resolved by providing indemnity for crimes committed by child soldiers under the age of 15, but Radhika Coomaraswamy, SRSG for children and armed conflict, noted – in a 2010 article for the International Journal of Children’s Rights:The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification – that such a provision could be perversely used.

“If minor children who have committed serious war crimes are not prosecuted, this could be an incentive for their commanders to delegate to them the dirtiest orders, aiming at impunity. For this reason the ICC and SCSL focus strongly on those persons most responsible for human rights and IHL violations and apply the concept of command responsibility to political and military leaders,” Coomaraswamy said.

Command responsibility does not necessarily remove individual culpability for serious human rights violations by lower ranks or subordinates, but “rather it traces liability back up the chain of command,” said legal adviser to the ICRC Young.

When child soldiers become adults

Dominic Ongwen was about 10 when he became a soldier with the Lord’s Resistance Army in the 1980s.

The ICC issued an arrest warrant for him in October 2005 for crimes against humanity, including enslavement of children. However, jurisdiction by the court does not extend to crimes committed by people under 18, and before 2002 when the Rome Statute entered into force. The crimes cited are for when Ongwen was an adult.

“Ongwen is the first known person to be charged with the same war crimes of which he is also a victim,” the Justice and Reconciliation Project, a Ugandan NGO concerned with transitional justice, said in a 2008 field note entitled Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen. 

“[Ongwen and other child soldiers] represent precisely the kind of complex political victims who, if excluded from justice pursuits, could give birth to the next generation of perpetrators in Uganda; generations marginalized by the judicial sector and who have nothing to gain from citizenship and nothing to lose from war,” the field note observed. 

The Lubanga case

Tomaso Falchetta, Child Soldiers International (CSI) legal and policy adviser, told IRIN child soldiers should be viewed as victims and the NGO opposed their prosecution, as emphasis should be on the criminal responsibility of the adult recruiters. CSI “does not advocate for a cut-off point [for the prosecution of child soldiers], as it is a difficult issue.”

The first person to stand trial at the ICC for enlisting children under 15 was former Democratic Republic of Congo (DRC) warlord Thomas Lubanga. His trial at The Hague is nearing completion after he allegedly recruited underage children into the Patriotic Forces for the Liberation of the Congo (FPLC) during the conflict in Ituri, a district in the eastern DRC, between 2002 and 2003.

An international humanitarian law expert, who declined to be identified, told IRIN Lubanga’s case was “tremendously important” as “it will make others pause and think… Every rebel leader must be aware of this case.”

Falchetta said it was “difficult to provide an empirical judgement on that [Lubanga’s ICC prosecution being a deterrent]”, and rather that accountability needed to be enforced at the national state level to discourage the continued use of child soldiers.

The former DRC president, Laurent Kabila, said in 2000 the armed forces would demobilize all child soldiers but a year after he made the commitment, four DRC child soldiers aged 14-16 were granted clemency, after death sentences imposed by a military tribunal led to international condemnation from human rights organizations. A 14-year-old child soldier was reportedly executed the previous year.

Capital punishment for persons under 18 violates the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. The DRC is party to both international human rights treaties.

“The DRC laws may be there [the use of child soldiers is illegal], but when it comes to implementation, investigation and prosecution [of adult recruiters], we’ve seen little of that,” Falcetta said.

The CSI said in an April 2011 report (entitled Report to the Committee on the Rights of the Child in Advance of the DRC initial report on the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict) that “hundreds of children remain in the ranks of the national armed forces (Forces Armées de la Republique Démocratique du Congo) despite legal and policy obligations to release them and government pledges to do so.”

Laws of war

Matthew Happold of Hull University in the UK said in 2005 paper entitled The Age of Criminal Responsibility in International Criminal Law there were “good reasons” for regulating criminal responsibility of international crimes through international law as they were “often distinguished from crimes under national law because they transcend national boundaries and are of concern to the international community.”

He said, in the paper presented at the Hague Academic Coalition’s conference on international criminal responsibility, that from the perspective of a defendant, “it would seem wrong for an individual’s liability under international law to depend upon the place of prosecution…. States are obliged to prosecute and punish offenders. Permitting States to decide their own age of criminal responsibility would allow them to determine the scope of their international obligations.”

Child soldiers, like any other combatants are subjected to the Nuremburg principle that holds: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

ICC’s Article 33 determines that acting on orders from superiors was not a defence of criminal responsibility but there are mitigating circumstances, and among them, is that a person may be relieved from prosecution if they did not know the order was unlawful.

However, the commission of “manifestly unlawful” crimes, such as genocide or crimes against humanity cannot be mitigated.

Young said the “so-called `defence of superior orders’… the [Nuremberg] principle that `I was just following orders’ can no longer relieve any of us of criminal (and moral) responsibility for unconscionable acts we commit at the behest of others.”

However, Rule 155 of Customary IHL, provided leeway, where “coercion and duress may provide exceptions… and one can quickly imagine how this principle might mitigate the responsibility of a child soldier who was forcibly recruited and forced, under threat of harm, to commit war crimes,” ICRC adviser Young said.