The Case of Dominic Ongwen: Possible Considerations for In Situ Proceedings

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.

10 Comments

  1. Although an in situ trial for Dominic Ongwen by the ICC would demystify the international criminal justice processes for victims, legal and non-legal local actors, I am not entirely convinced that the same trial would automatically translate into justice as perceived by the numerous categories victims who suffered harm at the hands of the LRA – would justice mean seeing the man who left them desolate, without a sense of pride or hope, tried in a court of law? Would justice mean an apology from the perpetrator for the harm inflicted and the government for its failure to protect the victims from the LRA? Would justice mean compensation?
    And can the ICC deliver justice its its true form as defined by the victims, or can it only deliver justice as an abstract concept removed from the full appreciation of the victims?

    when it comes to understanding what would be “in the interest of justice” for victims, neither you nor I can articulate it better than the victims themselves.

    What I do believe is that although some victims may not feel satisfied with justice administered by the ICC, whether in the Hague or in Uganda, the trail of Dominic Ongwen shall give the victims hope that their justice needs shall be met one way or another.

    Reply

    1. Thank you Peace for your response to the blog post. You raise very interesting issues. Indeed there is no guarantee that an in situ trial would automatically translate into justice for victims. However, that should not in any way prevent us from mooting the idea because at the end of the day, we have to find ways of accommodating the interests of different victims. To some of them, easy access and proximity to the proceedings is one way of seeing justice being done. That said, an in situ process cannot operate in a vacuum. It must be complemented by victim assistance programs by both the ICC and other stakeholders to take care of the needs of victims.

      Reply

  2. Great article Sharon. I believe as a country, Uganda should be thinking how the war crimes division would complement the ICC. Having domesticated the Rome Statute, it is imperative that we strengthen this internal structure, and make it effective, otherwise, the ICD will remain a concept on the shelves. It is quite interesting to think that with an in situ trial, (victims may feel that justice is adequately being dispensed), which in my belief is a mirage. For a community which for long has been entrenched in the omatoput justice concept, don’t you think that they would be inclined to ‘forgive’ Ongwen, most especially with the feeling that as a community, they failed to protect ‘their teenage son’ from abduction?

    Reply

    1. Thank you for your comment Catherine. I am in complete support of upholding the principle of complementarity in order to ensure that national jurisdictions can try perpetrators of serious crimes. However, in Uganda’s case, in the absence of a final decision on the constitutionality of the amnesty law by the Supreme Court which arose out of a constitutional petition filed by LRA mid-level commander Thomas Kwoyelo, it is impossible for the Uganda Government to guarantee the trial of such perpetrators. The ICC therefore remains the next best option until such a time when this legal dilemma is addressed.

      Turning to your question on the likelihood that the community would be inclined to “forgive” Ongwen, I think it is important for us to recognize that the LRA committed atrocities in many parts of Northern Uganda that extend beyond the Acholi region that subscribes to the matoput traditional justice system. With this in mind therefore, we cannot immediately conclude that all the people including those outside this region for example the Itesots are ready to forgive Ongwen.

      Like I acknowledged in the post, no indicative research has hitherto been carried out among the affected communities in Uganda to ascertain the need for in situ proceedings. Perhaps this is something that different actors can take on over the coming months.

      Reply

  3. Sharon, this is an interesting take on an idea of which I am a firm advocate, namely an evolving interpretation of complementarity. I agree with Catherine’s point about the ICD, as Uganda has spent over five years establishing the ICD, training judges, even agreeing to partake in a project to develop rules of procedure and evidence for the court. It appears that the ICD would be able to hold the trial with the assistance of the ICC.

    The in situ proceedings in an opportunity for the court, and in this respect, I agree with you Sharon. Aside from the benefits that you have already described pertaining to victim participation and local relevance, there is an additional concern that I feel that we often fail to acknowledge and that lends further credence to your argument is that of the financial restraints upon the Court. In December 2014, we saw Prosecutor Bensouda suspend the investigation of President al-Bashir. Why? Because the funds needed to be shifted to more contemporary and pressing situations, namely that of Palestine, and now the trial of Ongwen. The problem is that Israel has demanded that its allies including Canada, Australia and Germany stop funding the court. We have seen Canada cowardly bow down to this pressure.

    In light of this, I believe that your argument for in situ proceedings is all the more relevant, and should seriously be considered by the court. It would be a cheaper alternative – a factor that the ICC must seriously consider in 2015.

    Nevertheless, we should also keep in mind that this may no longer be what President Museveni wants for Uganda. We saw him meet with President Omar al-Bashir yesterday, likely to negotiate over the release of Kony who is rumored to be seeking medical attention in a hospital in Khartoum. We know that Kony is the big fish and that President Museveni is not interested in Ongwen. It would be interesting to see if Uganda would even want in situ proceedings.

    I would recommend that NGOs consider conducting a feasibility study to determine the desires and needs of victims. RLP should consider speaking about this on Friday during their NGO retreat to discuss the TJ landscape in light of Ongwen’s capture.

    Thank you for starting a relevant and important discussion.

    Reply

  4. Sharon,

    Thanks for this compelling argument. Those of us who attended the opening hearing of the war crimes trial against Thomas Kwoyelo at the Gulu High Court in July 2011 saw first-hand the impact that it had on affected communities, and the participation that it facilitated. This, from my observer’s perspective, testified to the desires of victims and the larger community to participate. The courtroom was at full capacity; and the court had set up overflow areas outside with large video screens–those areas were packed with many people as well. People travelled from all over Acholi land to attend the hearing–some many hours from Pabbo, Atiak–and many of those in attendance knew the accused and his family. They would not have been able to attend that hearing if it had been in Kampala.

    David

    Reply

  5. Sharon, thank you so much for triggering this debate. I some time wrote an article on the need to consider In Situ trial. I did not give details of how advantageous it would be but i am glad you have shared extensively, more so on the victims. We are hoping to have a survey on what the victims think should be done. I am hoping that Kony is still alive in Khartoum hospital

    Reply

  6. This is an interesting debate indeed. I am sure you are all aware by now that the Supreme Court of Uganda ruled in April 2015 that the International Crimes Division of Uganda continues with the Kwoyelo trial. Let’s see what happens!

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  7. and i pose a question ,should joseph kony be tried in the icc or our traditional court system

    Reply

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