Bringing Justice Closer to the People: Reflections on the Proposal to Hold Dominic Ongwen’s Confirmation of Charges Hearing in Gulu

IJMonitor.org is asking international criminal justice experts to weigh in on pressing issues facing the ICC. The following commentary was written by Kasande Sarah Kihika, a human rights lawyer from Uganda. The views expressed below do not necessarily reflect the views of Open Society Justice Initiative.

After 10 years in abeyance, the case against five commanders of the Lord’s Resistance Army (LRA) at the International Criminal Court (ICC) was reactivated following the surrender of Dominic Ongwen, the alleged brigade commander of the Sinia Brigade of the LRA. At the time of Ongwen’s surrender, the ICC had drastically scaled down its operations in Uganda, and the affected communities were increasingly becoming skeptical of the ICC’s ability to deliver justice for victims of LRA atrocities. The surrender and transfer of Ongwen to the ICC gave renewed hope to the victims and members of the affected communities.

In 2005, the ICC’s Pre-Trial Chamber II issued warrants of arrest for the top five LRA commanders, including Ongwen. He is charged with three counts of crimes against humanity (murder, enslavement, and inhumane acts of inflicting serious bodily injury and suffering) and four counts of war crimes (murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, and pillaging) allegedly committed on or about May 20, 2004 at the Lukodi camp for internally displaced persons (IDPs) in the Gulu District of Northern Uganda. In September 2015, the Office of the Prosecutor (OTP) notified the judges that she intended to bring additional charges against Ongwen. The new charges relate to three additional incidents that allegedly occurred at the Pajule IDP Camp in 2003, the Odek IDP Camp in 2004, and the Abok IDP Camp 2004. She intends to bring 67 counts of war crimes and crimes against humanity including murder, outrages upon personal dignity, destruction of property, torture, forced marriage, rape, and sexual slavery.

Following Ongwen’s surrender and initial appearance at the ICC, there have been repeated calls to hold his trial In Uganda. This is based on the idea that justice is best served in the context where the victims and survivors reside, where the crimes were committed, and where victims can witness justice being done. Commentators have argued that an in situ hearing in Uganda would demystify the court process and increase the proximity of the court to the victims. It would also serve as a symbolic acknowledgment of the integral role of victims, on whose behalf and for whose benefit justice is being dispensed.

Article 62 of the Rome Statute stipulates that unless otherwise decided, the place of the trial shall be the seat of the court in The Hague. However, Article 3(3) of the Rome Statute, read together with Rule 100(1) of the ICC Rules of Procedure and Evidence, empowers the court to sit elsewhere whenever it considers it desirable and in the interests of justice.

In September 2015, the pre-trial chamber recommended that the confirmation of charges hearing for Ongwen, scheduled for January 2016, be held in Uganda, preferably in Gulu. The pre-trial chamber observed that holding the confirmation of charges hearing Gulu, which is close to Lukodi, the scene of the crimes, would be desirable and in the interests of justice. The court is in the process of holding consultations with the government of Uganda to secure its cooperation and support for holding the proceedings in Uganda.

The recommendation of the pre-trial chamber to hold Ongwen’s confirmation of charges hearing in Gulu is a welcome development. It demonstrates the ICC’s sensitivity to the interests of victims and the affected communities. Holding the court proceedings in Gulu would contribute to bridging the gap between victims’ perceptions of justice and the ICC’s concept of Justice. It could also enhance victims’ experience and satisfaction with the criminal justice process.

However, support for holding the confirmation of charges hearing in Gulu must be tempered with the acknowledgment of the limits of the process, as far as achieving justice for victims. This is necessary in order to manage the expectations of victims and the affected communities. First, the in situ proceedings will be limited in scope. The court is considering holding only the confirmation of charges hearing in Uganda, a process that the pre-trial chamber describes as a “short, self-contained, discrete procedural step.” This symbolic and brief procedural process is unlikely to satisfy victims’ quest for justice.

It has been argued that the most important aspect for victims in the judicial process is to secure validation for the suffering that they and their communities experienced. To achieve this, victims should be supported to meaningfully participate in the court process, in accordance with the provisions and aspirations of the Rome Statute. This entails informing victims about the status and the developments in the proceedings, what to expect at the different stages of the proceedings, and notifying them of decisions that are likely to affect their personal interests. These measures will go a long way in acknowledging the dignity and agency of victims and will contribute to restoring their self-confidence and sense of control. The decision to hold in situ proceedings in Gulu is one of the decisions that should be informed by victims’ interests and concerns.

Although the ICC’s outreach unit has carried out extensive public awareness and outreach sessions in the affected communities, a number of victims remain largely ignorant about the trial and what to expect. Most remain disconnected from the trial process, which appears abstract and detached from their justice needs. To address this gap, the court should have a more robust outreach process to keep the affected communities and victims adequately informed of the different developments of the criminal proceedings and how their rights and interests are protected during the trial.

Moreover, the ICC’s limited jurisdiction means that it can only deliver justice for a select few and for particular crimes. Even with the proposed expansion of charges against Ongwen, the ICC will only address the violations suffered by a handful of victims, and the rest will have to secure redress through domestic judicial processes.

To address the accountability gap and in fulfillment of its obligations under the principle of complementarity, the government of Uganda has taken a number of steps to address impunity and provide redress to victims. Notable among these is the establishment of the International Crimes Division (ICD) of the High Court, which was established to prosecute those responsible for committing serious crimes such as genocide, war crimes, and crimes against humanity. The government also set up the Transitional Justice working group within the Justice, Law and Order sector, a policy making organ that is tasked with developing a national transitional justice policy which provides for a broad range of mechanisms that promote justice for victims, accountability for serious crimes, and reconciliation.

However, seven years after the signing of the Juba accords, the government’s commitment to pursue accountability seems to have waned. The draft transitional justice policy has yet to secure cabinet and parliamentary approval, and the implementing legislation has yet to be drafted. The first trial at the ICD, involving former mid-level LRA commander, Thomas Kwoyelo, suffered a setback when the amnesty act was successfully invoked at the constitutional court to stop the trial, although the trial is expected to resume following a successful Supreme Court appeal by the attorney general.

Holding an in situ ICC confirmation of charges hearing could catalyze momentum for domestic prosecutions of serious crimes at the ICD. It could reinvigorate the government’s commitment to establish transitional justice measures that respond to victims’ quest for justice and address impunity for serious crimes.

It is worth noting that holding in situ proceedings is not without challenges, especially in relation to the costs involved in setting up the required infrastructure, logistical arrangements, security, and sustenance allowances for the court officials. These costs could have a significant impact on the court’s budget. Moreover, if the proceedings are held in Kampala, only a few victims will be able to afford the cost of travel to attend the proceedings.

Another factor is the timing of the proceedings. The confirmation of charges hearing, scheduled for January, coincides with the peak of the election period in Uganda. The parliamentary and presidential elections are scheduled to be held in February 2015, which is likely to have security implications for the ICC hearings. Victor Ochen, the UN Ambassador for Peace and the executive director of the African Initiative for Youth Network, fears that holding Ongwen’s confirmation of charges hearing in Uganda during the election period could politicize the process.

The court’s final decision to hold Ongwen’s confirmation of charges hearing in Uganda should be informed by a comprehensive understanding of the political and social context and an appreciation of victims’ interests and security needs.

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