International Justice Monitor

A project of the Open Society Justice Initiative

Will Indicted Ugandan LRA Commander be Sent to the ICC?

The Ugandan army has confirmed that the rebel commander who surrendered in the Central African Republic (CAR) this week is Major-General Dominic Ongwen, one of the Ugandan fugitives indicted by the International Criminal Court (ICC) in 2005. However, it remains unclear whether Uganda will surrender him to the world court.

Uganda’s president Yoweri Museveni has recently led the campaign for African countries to abandon the ICC, making it unlikely that the senior Lord’s Resistance Army (LRA) commander will be transferred to The Hague.

While there are suggestions that he should be tried locally, there are also strong voices urging amnesty for the 34-year-old rebel commander, on the ground that he himself was a victim of the LRA, having been abducted and conscripted at the age of ten.

Identity Confirmed

Mr. Ongwen is believed to be the second-in-command of the LRA, the brutal force led by Joseph Kony that operates in the CAR, the Democratic Republic of Congo (DRC), and South Sudan.

Colonel Paddy Ankunda, spokesperson of the Uganda People’s Defense Force (UPDF), the national army, said Mr. Ongwen surrendered to the Central African Seleka rebels on an undisclosed date this month. The Seleka fighters handed him to American troops, who are in Central Africa hunting for the LRA alongside the Ugandan army. The rebels are reportedly claiming the US $5 million bounty the American government offered in 2013 for information leading to the arrest of each of the LRA’s three top leaders.

“We have visual confirmation that the man in custody is Dominic Ongwen. We have not done DNA tests, but we are sure he is the one,” Ankunda told the New Vision newspaper.

Col. Ankunda said consultations were going on between the government of Uganda, the African Union, United Nations, and the ICC “for the way forward” on Mr. Ongwen’s future.

Daniel Travis, the U.S. embassy spokesman in Kampala, on Thursday told the local media Mr. Ongwen was still in the hands of American troops, but it would be “irresponsible to prematurely speculate” about the outcome of ongoing discussions by parties involved in the hunt for the LRA leaders. The parties were working towards the “common goal of assuring that LRA leaders face justice for their crimes,” he said. It was not known whether these negotiations included Uganda committing to try the accused in a particular court.

The Alleged Crimes

Uganda referred the case against the LRA leaders to the ICC in December 2003. According to the 2005 arrest warrant, Mr. Ongwen was member of the “Control Altar” of the LRA, “the section representing the core LRA leadership responsible for devising and implementing LRA strategy, including standing orders to attack and brutalize civilian populations.”

Mr. Ongwen faces three counts of crimes against humanity (murder, enslavement, and inhumane acts of inflicting serious bodily injury and suffering). He also faces four counts of war crimes (murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, and pillaging). The crimes were allegedly committed in northern Uganda in 2004 during an attack on a camp for internally displaced persons while the accused was commander of the LRA’s Sinia Brigade.

Mr. Ongwen is the only senior figure of the LRA to be captured since the warrants were issued. In 2007, the UPDF reported that the former deputy leader of the group, Vincent Otti, was killed by Mr. Kony. However, Mr. Otti, like Mr. Kony, Mr. Ongwen, and Mr. Okot Odhiambo, remain wanted by the ICC. Raska Lukwiya, also indicted in 2005, died a year later.

During peace negotiations in 2005 between Uganda and the LRA, the rebels moved into Sudan and DRC, but after the talks failed, they oscillated between the two countries and the CAR, where they have continued to commit murder, rape, and pillaging.

In 2011, the American government sent 100 troops to join Ugandan forces searching for the rebels in the three countries. Observers say although some LRA captives have been rescued, the campaign has hitherto been largely successful.

Local Trial or at the ICC?

Ugandan defense minister Crispus Kiyonga remained vague on the possibility that Mr. Ongwen could be tried by the ICC saying, “It doesn’t matter if he goes to the ICC or we try him here, but from a military operational point of view and political point of view, this [surrender] is good.”

In 2008, Uganda formed an International Crimes Division (ICD) – reportedly the first international crimes court to be set up in Africa – with the mandate to try war crimes, crimes against humanity, genocide, terrorism, human trafficking, and piracy. The court is trying Thomas Kwoyelo, the LRA fourth in command captured in Congo in 2009 by a joint operation of Ugandan, Congolese, and Sudanese troops. He is charged with 53 counts of crimes.

According to international human rights lawyer Kenneth Muhangi, the ICD has similar jurisdiction to the ICC to try the captured LRA commander. This position was echoed by foreign affairs secretary James Mugume, who said Uganda and the ICC would discuss the complementarily principle of the Rome Statute, with regard to trying Mr. Ongwen. “Our legal team will have consultative mechanisms with parties concerned and decide. But we also have duly constituted courts to try him,” Mr. Mugume said.

According to Article 17 of the Rome Statute, the principle of complementarily holds that the ICC will only try individuals when states are unwilling or unable to prosecute them.

In May 2004, while surrendering jurisdiction of the LRA case to the ICC, Uganda stated that it had been unable to arrest those with greatest responsibility for the rebel group’s criminal responsibility and that “the ICC is the most appropriate and effective forum for the investigation and prosecution of those bearing the greatest responsibility” for those crimes.

Uganda also said it “has not conducted and does not intend to conduct national proceedings in relation to the persons most responsible.”

“The ICD has been redundant after Kwoyelo’s trial stalled pending a constitutional petition in the Supreme Court, so they will be keen to have a new suspect to try,” said a Ugandan international justice expert who spoke to International Justice Monitor on the condition of anonymity. “They won’t publicly say this, but there will be some behind-the-scene lobbying from the ICD.”

He added that trying him locally would fit with President Museveni’s changing view of the ICC. “He will go for a local trial not because he believes it is the best but to have a go at the ICC. The spirit of complementarity could come in as a justifiable excuse for him.”

Calls for Amnesty

Born in 1980 in Gulu district, northern Uganda, Mr. Ongwen was abducted by the LRA at the age of ten on his way to school. In a few years’ time, due to bravery and brutality, say former abductees, he rose through the rebel ranks. He became a major at the age of 18 and a brigadier by his late 20s.

Numerous local leaders from his Acholi sub-region are calling for amnesty for Mr. Ongwen, arguing that having been conscripted into the LRA at a tender age, he was forced to act brutally.

“He should be granted amnesty just like other top fighters and [the] government should talk to [the] ICC to stop his trial as earlier scheduled,” said Geoffrey Onekalite, head of the local council of Alero sub-country, Mr. Ongwen’s home town.

Under Uganda’s 2000 amnesty law, rebels who surrender are granted amnesty. Many LRA fighters and commanders – including those captured in combat – have benefited from the amnesty law in a bid to promote peace and reconciliation.

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