On January 26, 2015, Dominic Ongwen made his first appearance before the International Criminal Court (ICC), after reportedly surrendering to troops in the Central African Republic (CAR). Ongwen had been subject to an ICC arrest warrant since 2005 for his role as a commander in the Lord’s Resistance Army (LRA).
On the same day, the Legal Representatives of Victims who have been participating in the case submitted a filing (January 26 filing) to communicate their clients’ views and concerns following Ongwen’s appearance and the start of his judicial proceedings. As a matter of background, it is relevant to recall that victims had been accepted to participate in the case against Ongwen and his co-accused LRA leaders Joseph Kony, Vincent Otti, and Okot Odhiambo from 2007 to 2009. However, they had been prevented from participating actively given the lack of developments in the case.
In the January 26 filing, the victims’ lawyers note that their clients have been waiting for justice for almost 10 years. Over this time, some victims became disillusioned given the lack of execution of the arrest warrants and lost trust in the proceedings at the court. While Ongwen’s surrender has brought relief, that relief comes with a series of concerns.
Such concerns relate mainly to the limited scope of the charges brought against Ongwen. The 2005 arrest warrant brought charges against Ongwen for crimes against humanity (murder, enslavement, and inhumane acts) and war crimes (murder, cruel treatment, attack against the civilian population, and pillaging). However, those charges related to only one attack, executed on an internally displaced people’s camp in 2004. This appears very restrictive in light of the indications made by the former ICC prosecutor in 2005 that the LRA would have been responsible for 850 attacks, together with information in the case that points to the fact that Ongwen was among the core members of the LRA leadership and therefore highly likely to have been involved in other attacks. The victims’ lawyers suggest that Ongwen may have been responsible for crimes committed during other attacks under different modes of liability and that additional investigations are therefore needed.
In addition to Ongwen’s likely involvement in military offensives carried out in 2002 and 2003 (i.e. prior to the warrant of arrest), the victims’ lawyers raise the need for further investigations in relation to Ongwen’s involvement in crimes committed by the LRA after the issuance of the arrest warrant, not only in Uganda, but also in neighboring Democratic Republic of Congo (DRC), CAR, and South Sudan. Specific allegations mentioned in the January 26 filing include gender-based crimes and recruitment, conscription, and enlistment of child soldiers.
This is not the first time that victims participating in ICC proceedings or who have communicated with the court have raised concerns about the limited nature of a case as brought by the prosecution. Similar moves were made in the past in relation to cases in the DRC and Kenya. Several attempts were made by victims’ groups to expand the charges against Congolese militia leader Thomas Lubanga, who was the first person to be tried and convicted at the ICC. Lubanga was charged only with conscription, enlistment, and use of children in hostilities, but victims claimed that he should have been investigated and charged for murder, torture, rape, and other forms of sexual violence. All of the victims’ attempts were ultimately dismissed by the chambers (see here, here, and here). At the heart of those decisions was the idea that the charging is an exclusive responsibility of the prosecution.
In the two Kenya cases, the victims’ legal representatives also raised concerns that the charges as brought by the prosecution did not reflect the scope of criminality the victims had suffered. In both cases, victims were concerned that the charges did not adequately reflect the destruction of property and looting they had experienced. The motions were unsuccessful at the pre-trial stage of the case but were reconsidered at trial. In the William Ruto and Joshua Sang case, while the trial chamber appeared willing to entertain the matter, the motion failed for lack of follow-up by a subsequent legal representative. Interestingly, in the case against Uhuru Kenyatta, the prosecution itself took on board the victims’ concerns and clarified that property destruction and looting was to be considered as an underlying criminal act for the crime of persecution. On the other hand, however, due to limitations in the evidence put forward by the prosecution, the chambers restricted the temporal and geographical scope of the crimes prosecuted, thus leaving many victims outside the scope of the cases.
Adequately capturing the crimes victims have suffered allows victims not only to participate and contribute to the proceedings in relation to those crimes, but also holds significance in relation to reparations. Victims will only obtain reparations for the crimes the accused is charged with and convicted of.
The Ongwen case likely presents a number of challenges for the prosecution as it had been dormant for many years. Similar challenges were encountered in the Bosco Ntaganda case, who surrendered to the court after evading arrest for seven years. Whether additional investigations should be conducted in the Ongwen case for more charges to be brought is a decision for the prosecution. However, the chamber could make a finding, ask questions, or provide directions in response to the January 26 filing. In the meantime, it is important to conduct effective outreach to victims and affected communities to explain the implications of the Ongwen case and the likelihood of limitations in relation to the crimes that will be covered.