On January 26, 2015, the Uganda situation once again came into the International Criminal Court (ICC) spotlight when Dominic Ongwen, one of the wanted Lord’s Resistance Army (LRA) commanders appeared before Pre-Trial Chamber II at the seat of the ICC in The Hague, the Netherlands. Prior to this, Ongwen’s case had been inactive for nearly ten years.
As an ardent follower of transitional justice developments in Uganda, watching Ongwen take the stand in The Hague left me with mixed feelings. While on the one hand, I understand the practical need for his trial to be conducted by the ICC given the numerous domestic challenges that Uganda faces in the trial of serious crimes, on the other hand, the history and branding of the court as an institution with a special interest in victims’ rights lends credence to my alternative opinion that the court should explore the prospect of holding in situ hearings in the affected region. This would increase the proximity of the court to the victims.
According to Article 62 of the Rome Statute, unless otherwise decided, the place of the trial shall be the seat of the court in The Hague. An in situ hearing is possible by virtue of Article 3(3) of the Rome Statute, which allows the court to sit elsewhere whenever it considers it desirable. Rule 100(1) of the ICC Rules of Procedure and Evidence stipulates that this decision should be taken in the interests of justice.
The need for an in situ trial has also been highlighted by another commentator, who posits that this would enable affected communities to follow the proceedings, understand the importance of justice, and promote accountability and healing. A discussion with Lino Owor Ogora, Executive Director of the Justice and Reconciliation Project, one of the leading civil society organizations working with victim communities in Northern Uganda, reveals a more nuanced view. Ogora argues that whereas an in situ trial would certainly bring proceedings closer to the victims, it would still not promote victim participation on a higher level, particularly if such proceedings were held in Kampala and only a handful of victims could travel to participate in the process. While this is certainly a good observation, the in situ proceedings I envisage would take place outside the capital preferably in one of the LRA conflict affected districts in Northern Uganda.
It is also important to highlight the positive impact in situ proceedings may have on improving the judges’ understanding of the conflict context and the way they view the facts of Ongwen’s case. The ICC judges’ visit to crime sites in the Ituri region at the end of the trial of Germain Katanga and Mathieu Ngudjolo Chui, for example, had an impact on their opinion about the truthfulness of some witnesses. Most recently, the ICC Registry submitted a feasibility study for in situ hearings in the Bosco Ntaganda case in which it considered its capacity to support a judicial process of this nature and also assessed related security, legal, and budgetary implications.
These are the same issues that the court will have to grapple with in the event that an in situ trial is considered in the Ongwen case. Chris Ongom, the coordinator of the Uganda Victims Foundation, a coalition of human rights and civil society NGOs in Uganda working on victims’ rights issues, acknowledges that such a trial would be beneficial to victims but cautions that setting an enabling environment for this process would be costly both in terms of time and money that could potentially impact on its effectiveness and efficiency.
The question of in situ proceedings also previously came up before the ICC when William Ruto and Joshua Sang filed a joint application that requested the place of their trial be relocated to Kenya or alternatively to Arusha, Tanzania using the facilities of the International Criminal Tribunal for Rwanda (ICTR). However, this motion was unsuccessful because of the absence of the two-thirds majority required for such a decision. Some of the reasons advanced by the judges who were not in favor included the absence of a survey to ascertain the views of the interested victims, the possible security risks for victims and witnesses, the absence of sufficient justification for the change, the high budgetary cost of holding the trial outside The Hague, the high likelihood of politicization of the case, and the fact that it was not in the interests of justice to hold the proceedings away from The Hague. This decision is particularly relevant when looking at the pros and cons of holding an in situ trial in Northern Uganda.
Admittedly, as in the Kenya cases, no indicative research has hitherto been carried out among the affected communities in Uganda to ascertain the need for in situ proceedings. Nevertheless, the long wait for formal justice by victims of the LRA’s heinous crimes should be one of the main justifications for holding in situ proceedings because it would breathe life into the ICC, which was until the arrest and arraignment of Ongwen, perceived by many victims as a weak justice tool. Holding proceedings in situ will likely portray the Court as an institution that is sympathetic to the plight of victims and is ready and willing to move outside its comfort zone in the course of exercising its mandate.
As Judge Chile Eboe-Osuji noted in his opinion on the request in the Ruto and Sang case, the location of tribunals such as the Special Court for Sierra Leone in Freetown and the ICTR in Arusha were motivated by the need to “bring justice closer home to the people whose lives have been affected by the events that form the subject-matter of the judicial inquiry.” This should inform the decision to hold in situ proceedings in Uganda because despite the spill-over of the LRA’s activities to neighboring countries, the reality is that the conflict largely affected the people of Northern Uganda.
Unlike the Kenya cases, it is highly unlikely that holding in situ proceedings in Uganda will have any significant political ramifications because Ongwen does not wield any political power. This in turn diminishes the likelihood of witness and victim intimidation. It is however important to acknowledge that his trial may in the long run reveal the possible role of Ugandan government forces in the 20 year conflict, which could to a certain extent hamper the willingness of the Ugandan government to offer its much needed cooperation in ensuring the efficiency of in situ proceedings.
Although the Rome Statute’s progressive provisions on victim participation have made it possible for victims to engage with the court in a more proactive way, the reality is that not every victim can participate in this process. While the majority of the elite will be able to follow Dominic’s trial via television and social media, very few victims have access to such platforms. Indeed, some victims will be able to receive information on the trial process through outreach sessions by different actors including the ICC outreach office. All these efforts cannot be equated to the immense benefits of a trial process held at home within the precincts of the places where the effects of Ongwen’s alleged crimes were most felt.
Sharon Nakandha is an Aryeh Neier Fellow with the Open Society Justice Initiative focusing on international justice, particularly researching and assessing developments in this field, trial monitoring, and liaising with other NGOs working on international justice issues at national and international level. She previously worked as a program officer with Avocats Sans Frontières’ international justice program in Uganda.