The trial of alleged Lord’s Resistance Army commander Thomas Kwoyelo, which was supposed to start today in Gulu, 2 May 2016, has been postponed to 18 July. Four weeks ago, the Registrar in charge of Special Projects and the ICD, Harriet Ssali Lule, alluded to the possibility that the trial may be postponed because planned outreach with victims had not been conducted by the prosecution team. According to reports, Kwoyelo has already been transferred from prison in Kampala to Gulu and will attend a “formal postponement of the trial”.
On 4th April 2016, the pre-trial for Thomas Kwoyelo was held at the High Court in Kampala. The prosecution team led by Charles Kaamuli presented charges against Kwoyelo and planned to introduce 113 witnesses to the International Crimes Division of the High Court (the ICD) during trial proceedings. The presiding judge set forth May 2, 2016 as the date for the main trial but questions have, however, raised as to whether the May 2, 2016 will be able to take effect.
According to Registrar Court of Appeal & Registrar in charge of Special Projects, ICD, Mrs. Harriet Ssali Lule , during the ‘Kwoyelo Trial: CSO Outreach Strategy Workshop’ held in Gulu on 20 April by Refugee Law Project, the ICD has not been able to carry out outreach as planned due to lack of funds.
The workshop was also informed that there is need for collaboration with all the stakeholders including the Civil Society Organisation (CSOs) to support the ICD as well as the trial process.
South Sudanese hope for peace as Machar to return to Juba
This follows a step by the South Sudan government to issue clearance for Machar, under the UN chief Ban Ki-moon instructions that he (Machar) returns to Juba without delay.
Should the process go on successfully, Marchar will have to take up the post of first vice president alongside arch-rival President Salva Kiir. But most importantly, the move will possibly see an end to the conflict in South Sudan.
From the time when violence broke out in South Sudan in mid-December 2013, the country experienced reignited ethnic divisions and gross human rights violations.
Under international pressure, there have been attempts to restore peace in the country to no avail. The two sides earlier signed a peace deal in the Ethiopian capital, which paves the way for a ceasefire followed by the formation of a transitional government, the drafting of a new constitution and, eventually, fresh elections.
Both side violated what was agreed which saw a swift resumption of hostilities in the country. (More information: BBC).
Dominic Ongwen while charges of war crimes and crimes against humanity are being read during the Initial Appearance hearing on 26 January 2015 (Picture: Philipp Schulz)
In the past few months JRP has been conducting extensive consultations with women connected to Dominic Ongwen’s case at the International Criminal Court. Respondents included former combatants, massacre survivors and women who had a close affinity to him during captivity. The findings of this research will inform a new situational brief, which will be a follow-up to May 2015’s ‘Community Perceptions on Dominic Ongwen‘, and will be published late September.
Kwoyelo arrives at the Gulu court building on Nov. 11, 2011
In April 2015, the Ugandan Supreme Court held that former LRA commander Thomas Kwoyelo could be tried at the International Crimes Division of the High Court of Uganda (the ICD). On 27 May, Avocats Sans Frontières and judges from the ICD held an outreach session meeting with victim and civil society organisations in Gulu town followed by a community outreach session with Lukodi village on the 28th of May with people who suffered during the LRA massacre attack on Lukodi village on the 19th May 2004. The purpose of the outreach was to introduce the ICD court to the communities and to discuss the way forward for Thomas Kwoyelo’s case.
In Lukodi, the people present included orphans, widows and widowers among others. The four ICD judges that conducted the outreach included Justices Nahamwa and Mukizi Ezekiel and during the session, they informed participants about the background of the ICD, including when it was formed and the law applicable to its jurisdiction. Justice Mukizi also highlighted the work of the Justice, Law and Order Sector of the Government of Uganda (JLOS) and police in the contributions they make to the court and said that the ICD court is not the government but rather a small part of the government which was formed to address capital crimes to stop impunity.
According to the judge, the first objective of the court is to try the case and make sure that if enough evidence is presented to the court that an accused person such as Kwoyelo would be convicted. Objective two is aimed at taking into account the rights of the victims and giving them an opportunity to be heard, which he said would be unlike traditional courts and allow them to testify and give evidence of their experiences, be present in court and be provided for their suffering in terms of compensation or reparation.
The judges pronounced that their duties are bound by the law and that they have international standards to follow when a person is brought to court for a fair trial. Kwoyelo, they said, is also entitled to a lawyer for representation and to be allowed witnesses to support his case. If enough evidence is found to support him, he would not be convicted. His trial will be referred to Gulu where all people would be welcome to participate. Judge Nahamwa said that he is encouraging victims to report crimes to the police and JLOS for investigation though they can either choose to report the crimes or not.
During the outreach, Justice Mukizi pointed out that while there has been a provision for amnesty for LRA returnees, there are some crimes, such as those alleged to have been committed by Kwoyelo, which the Supreme Court confirms that amnesty cannot be extended to because of the graveness of the offences alleged to have been committed. The judge mentioned that Kwoyelo is charged with 52 counts of crimes against humanity and if there are victims who suffered according to his acts, they are called upon to come up and offer evidence to the court. Any efforts, he said, will help to stop impunity so that the acts are punished.
The memorial site for the Lukodi massacre of 2004. JRP.
In early March this year, the JRP team visited the villages of Lukodi and Coorom to find out what community members there think about former LRA commander Dominic Ongwen and his case at the International Criminal Court. Because people in Lukodi have been wrangling with the after-effects of an LRA massacre that killed between 40 and 60, people there call out openly for solutions to the challenges they face. In addition to being victims of the attack, many there lost property, family and numerous opportunities to improve their lives. For Lukodi, justice means compensation and government accountability.
People in Coorom in Amuru district were more wary about speaking with strangers. Coorom is the village from which Dominic Ongwen hails and because its most famous son is someone that was indicted by the ICC for seven counts of war crimes and crimes against humanity, people there are afraid that their association with Ongwen may lead to revenge attacks by other communities or government forces. Justice for Coorom means protection, a fair hearing for Ongwen and support for the many children that have been orphaned by the war.
Before visiting these communities we were aware of the conflicting views that people in northern Uganda, and in particular in Acholi, have towards Ongwen. Acholi religious leaders argue that Ongwen’s status as someone that was abducted as a child and ostensibly forced to commit the crimes he is accused of make him a victim of the war rather than a perpetrator. The other view that is held is that holding Ongwen accountable is an important step in addressing impunity for international crimes. These two sets of views were also reflected in the communities we spoke with. Survivors of the Lukodi massacre want Ongwen to be tried and convicted so that they can receive compensation for their losses, regardless of how young he was when he was abducted. People in Coorom, on the other hand, were adamant that Ongwen should not be the person tried at the ICC. Instead, government forces and the commanders that abducted him should be held accountable for what happened during the LRA conflict.
Despite these differences, the two communities shared a similarity in one key area: the importance of traditional justice and reconciliation. People in both communities don’t see a possible trial of Ongwen as an end to addressing the war. Rather, Acholi traditional ceremonies that emphasise reconciliation, such as mato oput and gomo tong, were spoken of as lasting solutions and as just as important as formal court processes. Both communities also spoke of the need to reconcile with other communities, with Lukodi proposing a dialogue between community leaders there and with elders from Coorom, to sort out any differences that may arise from the ICC case. Similarly, in Coorom people call for reconciliation between their community and other places that suffered during the war. Ultimately, for both these communities justice means more than the ICC.
Read JRP’s situational brief ‘Community Perceptions on Dominic Ongwen’ here.
Community Perceptions on Dominic Ongwen, Situational Brief, May 2015
Following the transfer of Lord’s Resistance Army commander Dominic Ongwen to the International Criminal Court in The Hague, the Justice and Reconciliation Project sought the views of communities tied to Ongwen’s case at the ICC. The result is a situational brief presenting theirs and civil society members in Gulu’s opinions on Dominic Ongwen and recommendations for international justice.
ICC Prosecutor, Fatou Bensouda, visits the the memorial site for the Lukodi massacre of 2004.
On 27 February 2015, the Prosecutor for the International Criminal Court (ICC), Fatou Bensouda, visited Uganda to engage with communities affected by the Lord’s Resistance Army (LRA) war, civil society working in human rights as well as government representatives. During her time in Uganda, Ms. Bensouda visited Lukodi – the site of the LRA massacre, for which former commander Dominic Ongwen is charged with leading – for the first time to pay her respects and listen to the concerns of community members.
During her visit with civil society, including JRP , was presented to her. Below is an extract of that statement:
Prosecutor to move beyond proving Ongwen’s guilty but take a deep look into the entire Northern Uganda Situation and take into account the circumstances that led Ongwen into LRA insurgency as an important factors for the trial, including examination of the different layers of responsibilities, by the state such as the responsibility to protect. Court processes should promote a broader pursuit of justice and reconciliation in northern Uganda and LRA affected communities. The ICC prosecutor should expand investigation to include other parties who committed crimes in the context of the LRA war including state actors and international sponsors Propose/recommend a live broadcasts of all court proceedings in northern Uganda to inform affected communities of ongoing court processes Urge proper translation of all court proceedings to Ongwen with appropriate dialects-preferable Lamogi/Patiko and with a legal background. Office of Prosecutor and Registry to source a competent translator with above qualifications. Witness protection be availed to both prosecution and defence team on a sustainable basis to avoid a repeat of the Kenyan experience. ICC should be cautious in its relationship with the state-(Gov’t of Uganda) to avoid perception of Gov’t influence and biasness Court to keep open its investigation into the N.Uganda situation including the situation of forced encampment and GBV in northern Uganda. Ensure effective victims participation from LRA affected communities targeting real victims not necessarily those who speak for other victims. Demand an Insitu (local court sitting) court proceedings in Gulu, northern Uganda at some stage of the trial to engage victims groups Court to facilitate regular visits to Ongwen during his detention at The Hague including by CSOs and family members to assess welfare and report to the communities as confidence building. Prosecutor/Court to pronounce herself about the fate/status of the other suspects including Vincent Otti, Okot Odiambo whether they are alive or dead. Both parties to the LRA conflicts should be made to account and the court should expand its investigation beyond northern Uganda. Court to make a determination on what should happen to crimes committed in northern Uganda before ICC jurisdiction and use its trial to complement comprehensive transitional justice measures in LRA affected areas. CSOs strongly recommend appropriate reparations to all victims of LRA insurgency in the affected areas and immediate measures to address potential inter-communal fall outs from the ongoing Ongwen’s prosecution
Other updates in the Ongwen trial:
– Confirmation of charges hearing postponed to January 2016 – Representative of Dominic Ongwen selected: Kripus Ayena Odongo – Decision on the application process of victims set, 4 March
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.
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
Dominic Ongwen while charges of war crimes and crimes against humanity are being read during the Initial Appearance hearing on 26 January 2015 (Picture: Philipp Schulz)
As part of the Justice and Reconciliation Project’s TJ Monitor, we will be regularly reporting about on-going proceedings during the trial of LRA Commander, Dominic Ongwen, at the International Criminal Court (ICC). Follow the TJ Monitor for developments in the pre-trial and trial stages for updates from The Hague.
On Monday, 26 January 2015 at 2 pm Dominic Ongwen appeared before the Pre-Trial Chamber II of the ICC in The Hague. During the appearance, single Judge Ekaterina Trendafilova repeated the charges against Ongwen, informed the defendant of his rights and set 24 August 2015 as the provisional date for the confirmation of changes hearing. As already previously announced by the ICC in a press release, since his arrival in The Hague, Ongwen reportedly received medical checks and treatments as well as access to a defense lawyer.
Throughout the initial appearance hearing, Ongwen was represented by his Duty Defense Counsel, Ms. Hélène Cissee, while Prosecutor Bensouda appeared on behalf of the Office of the Prosecutor (OTP). Ms. Cisse was appointed to be Ongwen’s Duty Counsel on 12 January and has a mandate to represent him until after the initial appearance hearing. As of now, Dominic Ongwen can choose his defense attorney. According to media reports, the Government of Uganda is to propose a team of defense lawyers to represent Ongwen.
When asked to verify his identity, Ongwen spoke in Acholi and informed the Judge that he was from Amuru District in northern Uganda. Interestingly, Ongwen said that he was born in 1975 and abducted in 1988 at the age of 14, contrary to previous reports regarding his age at abduction. Ongwen furthermore requested trial proceedings to be translated into the Acholi language for his benefit.
Following the verification of the identity of the accused, Judge Trendafilova confirmed that Ongwen was provided with the warrant of arrest in English and Acholi, and that he was informed about the charges brought against him, as well as his rights. The Single Judge mentioned that Ongwen already met with his Duty Counsel, Ms. Cisse, and representatives of the Registry of the ICC in Bangui in CAR, prior to his transfer to The Hague. Following this, a court officer read out the seven counts of war crimes and crimes against humanity Ongwen is facing.
Judge Trendafilova reiterated that the initial appearance was not yet a trial, and that no evidence would be presented or collected throughout the hearing. “Mr. Ongwen, you will be held innocent until proven guilty beyond reasonable doubt at trial,” the Judge confirmed.
Taking into consideration that the ‘situation concerning the Lord’s Resistance Army (LRA) in northern Uganda’ was the first to be referred to the ICC, and that both the Prosecution and Ongwen’s Defense require sufficient time in order to prepare their cases, while simultaneously taking into account Ongwen’s right to be tried without due delay, the Pre-Trial Chamber decided to provisionally schedule the confirmation of charges hearing for 24 August 2015.
On Wednesday, 28 January 2015, a Status Conference will be held in a closed session, in presence of the Prosecutor only.
Before the closing of the hearing, Ongwen’s Defense Counsel, Ms. Cisse – while stating that her client’s English “is less than basic”, and that all documents and evidence thus need to be translated into Acholi – highlighted that Ongwen “was forced to stay in the bush for more than twenty years” and basically had no access to formal education.
Background
Dominic Ongwen was transferred to The Hague last week, on January 21, following his surrender to or capture by Seleka rebels in the Central African Republic (CAR) earlier this month, on January 6. What exactly happened between Ongwen’s capture/surrender and his transfer to The Hague is not yet fully known, but various reports indicate that he went through the custody of the Seleka rebels, CAR forces, allegedly the Ugandan People’s Defense Force (UPDF), US Special Forces as well as finally the ICC.
The ICC issued an arrest warrant against Dominic Ongwen (and four other top LRA commander – including Vincent Otti and Joseph Kony) on 8 July 2005 for three counts of crimes against humanity (murder; enslavement; inhumane acts of inflicting serious bodily injury and suffering) and four counts of war crimes (murder; cruel treatment of civilians; intentionally directing an attack against a civilian population; pillaging). Specifically, the charges refer to Ongwen’s alleged criminal responsibility for crimes committed in northern Uganda in 2004. The Government of Uganda initially referred the situation regarding the LRA to the ICC on 16 December 2003, and the Prosecutor applied for respective arrest warrants against the five top LRA commander – including Dominic Ongwen – on 6 May 2005.
Almost a decade after the ICC initiated investigations in northern Uganda, Ongwen has now become the first LRA commander to face charges in The Hague. As previously documented by the Justice and Reconciliation Project, Ongwen was abducted by the LRA himself, as he was on his way to school, essentially making him a victim of the very crimes he is now facing before an international court. Throughout the years, Ongwen rose through the LRA to eventually become Joseph Kony’s second in command.
The formation of this court in 2008 was a commitment of Member States of the African Union to promote peace, security and stability on the Continent and to protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant instruments relating to human rights. Although, the Court is yet to become functional (it needs 15 ratifications to come into force, but has only received five so far from Libya, Mali, Burkina Faso, Benin and Congo), there has been discussion about expanding its jurisdiction to cover serious international crimes in the way that the ICC and other international tribunals do.
So what does this mean for victims of conflict on the African continent?
The proposal of an indigenous human rights court comes on the heels of calls for localised solutions to “African problems”, as an alternative to international tribunals like the ICC. It was also hoped that this court will administer justice on the African continent especially given the history of mass violence and crimes that have been committed there.
What are the opportunities for TJ?
This new court is also an opportunity to address the criticisms that have been leveled over the years towards its predecessors, the ICC as well as other international tribunals, for and on behalf of victims and survivors of conflict.
These criticisms include a lack of consultation on the views of victims, a lack of accessibility for victims, challenges to do with witness protection, and a lack of effectiveness of the court. In this respect, an African court could, for example, make it easier for victims on the continent to access and participate in court proceedings. It could also allow for linkages with other national transitional justice mechanisms such as truth commissions and reparations. Localised outreach to communities affected by conflict could also address claims that international tribunals and courts, who are often not exposed to what happens in criminal proceedings trying matters related to them.
Ultimately, if the new African court is to support the needs and interests of victims of conflict, it needs to fill the gaps left by existing national and international courts and tribunals.
