ICC in tight spot over captured LRA commander Ongwen

By Ronald Musoke

Should a child who was abducted and turned into a killing machine as an adult be punished for it?

Hours before Brigadier Dominic Ongwen was flown from the AU Regional Task Force base in Obo to Bangui, the Central African Republic capital, a handful of his victims—former abductees— gathered in the northern town of Gulu for a symposium on transitional justice organised by the Refugee Law Project.

They were part of the participants that the Makerere University Law School-run project that deals with conflict, finding justice for victims, and governance invited to have a discussion on the subject on Jan.16.

The former abductees painted a picture for whoever has never been under LRA captivity. One of them chose to use an anecdote to describe the predicament of abductee-turned-child soldiers in the Lord’s Resistance Army.

“LRA is like a bus setting from Gulu headed to Kampala. At Corner Kamdini, a passenger boards the bus but before they reach Karuma Bridge, this bus knocks and kills cows. Who exactly is responsible; is it the bus driver or the passengers?” one of the former abductees told the participants.

With no ready answers, he went ahead to answer, saying, the children who Joseph Kony abducted for decades to reinforce his army are like the passengers on the bus.

“Ongwen is like a passenger who was on the bus that knocked the cows at Karuma Bridge,” he emphasized.

The former abductee’s tale set the tone for the symposium as the debate on Dominic Ongwen’s imminent trial at The Hague gathered steam.

Steven Oola, a transitional justice expert based at the Refugee Law Project says although Ongwen was part of the LRA that committed atrocities, his case needs to be put into context. He says three issues need to be examined when dealing with Ongwen’s ‘precarious’ situation.

“Ongwen,” says Oola, “should be looked at like any other child in Kampala or Gulu— had that child been abducted.”

“Secondly, the nature of the LRA outfit—which specialised in recruiting children into its ranks should also be critically examined by anyone who has children.”

“And thirdly, the responsibility of the government to protect children, whether they are in Karamoja, Mbarara or Gulu should not go without criticism,” Oola says.

Oola says Ongwen bears responsibility but so does his government which failed to give him protection when he was going to school and so does his parents and the community and to some extent the international community.

Ongwen suffers twice

Francis Onyango, a lawyer says Ongwen faces the threat of suffering twice; first by being abducted as a child and conscripted to commit atrocities, and secondly to be tried by the ICC and convicted and imprisoned.

He says Ongwen’s case is complex because international law has not evolved to cover circumstances such as his.

Derrick Lufunya, another human rights lawyer insists there are complex legal issues surrounding Ongwen’s trial.

Lufunya expects the age of criminal liability and the views of the Acholi people to be taken into account.

Mohammed Ndifuna, the chief executive officer of Human Rights Network-Uganda says these sentiments are not entirely new and some of the concerns being raised will pop up in the court.

“At a higher level, it only serves to re-affirm the belief that no crime of that nature should go unpunished. But we should focus on the big picture. What we are most likely to see is symbolic justice but not justice that is close to the hearts of the victims of the LRA conflict.”

Many of Ongwen’s kinsmen expressed views similar to Oola’s; they want Ongwen to be looked at as a victim and not a perpetrator. This, however, does not mean they forgive him.

In a series of interviews that the local broadcaster NTV has conducted in northern Uganda since Ongwen surrendered, many including the Acholi paramount chief, Rwot David Onen Acana II, have said the Acholi community is willing to forgive Ongwen if he acknowledged his mistakes.

According to Oola, the last time the Refugee Law Project talked with Ongwen’s mother, he remembers her telling them that she expects her child back. She also said if her child committed any crimes, he should be brought back to be cleansed by the community.

But the question remains; is Ongwen a victim, a perpetrator or both?

Opinions are divided and this is going to be one of the biggest paradoxes in the history of the ICC, Oola says.

Ongwen’s story has already been told and retold since he was captured by the Seleka rebels in the Central African Republic on Jan.6 before he was quickly handed over to the US forces that are giving back-up to the AU Regional Task Force which was set up to fight the LRA.

Born in Paibona, Awach, in Gulu District in 1980, Ongwen, now 34 and said to be a father of 10, spent most of his childhood and his entire adult life in the LRA and he, like tens of thousands of children in northern Uganda, South Sudan, the Democratic Republic of Congo and the Central African Republic was abducted as a child while going to school at the age of 10 in 1990.

He was then indoctrinated and forced into committing appalling acts before he even turned into a teenager.

He would then be taught at an early age that he was fighting for the rights of his people—the Acholi.

He was also told by Kony and grew up knowing that as long as he obeyed Kony’s orders—which came directly from the Holy Spirit, he would be innocent in the eyes of God.

Ongwen in turn sought to please his boss and often followed those orders and often excelled at executing them—the reason he rapidly grew through the ranks first becoming a Major at 18 and a Brigadier in his late 20’s.

In 2005, the ICC indicted Ongwen on seven counts, including enslavement. This made him the first person to be charged by the court for committing the same crime committed against him.

His brutality against civilians earned him the indictment to the ICC for crimes he committed in many communities in southeastern CAR, northeastern DR Congo, southwestern South Sudan and northern Uganda.

It is probably for this reason that Ongwen was the only one among the five indicted LRA warlords to have joined as an abducted child.

But for the ICC to charge him in part, with the same crimes that were initially perpetrated against him has left many people with misgivings.

While addressing the press in Kampala on Jan.14, Henry Okello Oryem, the minister of state for International Affairs said Uganda has no sole jurisdiction to try Ongwen in Uganda. This, Oryem said, is because he committed transboundary crimes.  And although the Cabinet had consulted with the acting Chief Justice, Steven Kavuma, and he had assured them that there were ‘enough logistics,’ to try Ongwen in his home town, for some reason, Ongwen will be tried at The Hague.

Uganda’s hand forced

Ugandan referred its conflict with the LRA to the ICC in December 2003 and the prosecutor opened a full investigation into the situation in July 2004. A sealed arrest warrant was issued for Ongwen in 2005 and four other top commanders. But in recent months, President Yoweri Museveni has been criticising the ICC and dubbed it a “tool for oppressing Africa”.

When Ongwen was first reported to be in the hands of the American forces in CAR, a spokesperson for the Uganda government said he would be tried in Uganda.

But the position shifted as the complexity of the case became clear. Although Ongwen was first held by the Americans, the U.S. is not a party to the ICC, although President Barack Oboma; unlike his predecessors, has signalled closer cooperation with the court.

With Uganda and the USA handicapped by frosty relations to the ICC, the decision to hand over Ongwen to the ICC fell on the CAR government.

Stephen Lamony, senior adviser for AU, UN and Africa situations for the Coalition for the ICC, said in a press statement by the ICC on the day Ongwen was transferred, “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”.

“The Court must make sure that the Uganda people are kept informed about its proceedings against Ongwen,” Lamony said.

According to the ICC, this will be achieved if the ICC’s outreach office in Kampala which ceased regular activities in December 2014 is reopened. The ICC wants to use it to resume outreach and the dissemination of information about Ongwen’s trial.

Oryem said Ongwen will get a lawyer who speaks Luo to help him access justice at the ICC.

But problems remain.

No doubt Ongwen’s surrender and imminent trial is a boon for proponents of international justice, it also is a devastating reminder of the tragedy of the LRA war fought largely by children, who by luck survived violence and ended up trapped by the group through adulthood.

Many hoped that an open and fair trial might bring some closure for victims of LRA violence as well as shed light on a conflict that has lasted a generation.

But now that Ongwen is sure to be tried at the ICC, there are more questions than answers that still linger on.

When Ongwen’s trial eventually kicks off, Oola says, it will be good in the sense that it might open up avenues for the international community to look into crimes before 2002 before the ICC was created.

“What implications will Ongwen’s trial have on pursuit of the end of the LRA war?”

“And will it offer the prospect for accountability of the crimes committed by the UPDF in northern Uganda?”

“And where does this leave the International Crimes Division established to deal with issues like Ongwen’s?” These are all tough questions that need answers.

In between the time of his surrender on Jan. 6 and the time he was flown to Bangui on Jan.17, Ongwen pleaded a number of times with Ugandans to be forgiven for the atrocities he committed in a number of monologues that NTV carried. But he was also philosophical and said if Ugandans don’t forgive him; it will be the will of God.