IJMonitor.org is asking international criminal justice experts to weigh in on pressing issues facing the ICC. The following commentary was written by Lino Owor Ogora, executive director, Foundation for Justice and Development Initiatives (FJDI). The opinions expressed below do not necessarily reflect the views of Open Society Justice Initiative.
The Acholi people have a saying, “wang loyo ajwaka,” which can be directly translated as “the eyes are better than the witchdoctor.” It means that what can be physically seen with one’s eyes can be better interpreted or understood without necessarily resorting to divine explanations from a witchdoctor. Legal practitioners have a similar saying that “justice must not only be done, but must be seen to be done.” Put differently, human beings believe what they see.
In September 2015, Pre-Trial Chamber II of the International Criminal Court (ICC) recommended to the ICC Presidency that the hearing on the confirmation of charges against Dominic Ongwen be held in the Republic of Uganda, a move it hoped would bring justice closer to the victims and enable them to witness the proceedings more closely. The chamber considered that it would be desirable and in the interests of justice to hold the confirmation of charges hearing in Uganda, preferably in Gulu, which is close to the location of the alleged crimes, or in Kampala.
Could the plan by the International Criminal Court (ICC) to hold in situ hearings in the case of Dominic Ongwen be an attempt to bring justice closer to the victims and allow them to see justice being done? Would this mean that the ICC trial of a Lord’s Resistance Army (LRA) commander will be better understood by the victims of his crimes if his trial takes place in their neighborhood?
The ICC has faced much criticism since it was established in 2002, and especially since it started investigating the LRA in Uganda. One of these criticisms is that it is based in The Hague, far away from the beneficiaries it is meant to serve. The distance between the glamorous courtrooms of The Hague and the squalid villages in which survivors of war crimes and crimes against humanity live has often created a sharp contrast. In many cases victims are not even aware that trials are underway.
Thus, civil society and other opinion leaders welcomed the news that the confirmation of charges hearings may be held in Uganda. In northern Uganda, where Dominic Ongwen is from, victim communities received the news with mixed reactions, but with the majority happy that the trials would be held closer to home.
The key question that remains to be answered, however, is how victims will benefit from a trial process taking place close to them. Will holding hearings in Uganda be an effective means of making the trial more relevant to victims? Possibly, but there are many challenges to consider.
This move by the ICC to hold in situ hearings in Uganda is a welcome change, and will go a long way in narrowing the gap between victims and the court. The most obvious outcome of holding an in situ hearing in Uganda is that victims will have a chance to see the justice system in action and actually attend hearings. Some civil society and opinion leaders have even gone as far as suggesting that the trial should be held in Gulu, northern Uganda, where Dominic Ongwen is alleged to have committed the crimes.
But before victims can celebrate this possible move by the ICC, a number of factors need to be sorted out. A court process taking place in the neighborhood will not necessarily guarantee that victims will attend or will interact with the trial. Many factors must be taken into consideration to ensure meaningful victim engagement.
For one, there is the matter of the distance that victims must still cover to get to the courtroom. Even if the hearings were to be held in Gulu district in northern Uganda, victims would still need assistanceto physically attend the proceedings. For example, Lukodi village, one of the scenes of Dominic Ongwen’s crimes, is located almost 30 kilometers from the High Court in Gulu town. While it is cheaper to transport victims to and from this courtroom than it is to transport them to and from The Hague, it is still too expensive for the average victim to afford to attend hearings daily. Therefore, stakeholders who seek to support victims must prepare to meet this logistical challenge.
Then there is the matter of the high security that accompanies the court. Wherever the ICC has gone they have been accompanied by tight security that is simply too intimidating for the victims. When the Assembly of State Parties Review Conference was held in Uganda in 2010, the security protocols and clearances required were complex. Among other requirements, all prospective participants had to be accredited, issued with passes, and finally cleared to attend the conference. Accessing the venue itself was a nightmare, with participants having to go through a minimum of three security check points. Similarly difficult security protocols might be put in place for Ongwen’s hearings in Uganda. If victims are to participate freely then the matter of security must be discussed and adequately dealt with.
Third is the matter of ensuring that victims are able to follow proceedings either physically in the courtroom or by having proceedings relayed to them. One issue to consider is translation, given that a number of victims do not speak English. Moreover, Uganda’s courtrooms are small and cannot accommodate a large number of people. The authorities in Uganda should therefore consider allocating seats to victims’ representatives. As all victims will not be able to fit into the courtrooms, ensuring wide coverage of the event by media is another matter that should be taken seriously to ensure that court proceedings are relayed to the victims in their villages. As the majority of victims in northern Uganda do not have television sets, or even electricity in their villages, the court and civil society organizations should consider how to hold large, outdoor screenings in the villages. In addition, other media such as radio stations will have to be mobilized in advance, because the majority of victims living in northern Uganda rely on the radio for their information. In a nutshell, a strong public outreach strategy will need to be designed by both the ICC and CSOs in Uganda.
Fourth is the matter of managing victims’ expectations. This is where the aspect of seeing justice being physically done comes into play. For many victims, justice is actually the restoration of their lost property, their lost livelihoods, and other reparations for the suffering that they underwent. Greater victim engagement with the trial could increase their expectations of reparations—meaning that an acquittal of Ongwen would be a devastating blow to the victims, as it would preclude an ICC award of reparations. In the event of a conviction, the court should be prepared to accommodate requests for a comprehensive reparations package. With the Ugandan government not having implemented any reparations programs to date, hearings in Uganda would be taking place in an environment where victims are highly frustrated and expectant. Managing expectations of victims by different stakeholders is critical in this regard.
There is also the matter of how such a trial could affect ongoing justice debates in Uganda. Uganda currently has an Amnesty Act that grants pardon—a blanket amnesty—to all rebels who apply for it. The controversy surrounding amnesty in Uganda became an issue in 2011 following the capture of a senior LRA commander, Thomas Kwoyelo, who was charged with war crimes and crimes against humanity. Many stakeholders in Uganda currently hold the opinion that amnesty should be conditional, and not the blanket amnesty currently offered to the LRA. While the trial process of Dominic Ongwen is not linked to domestic legislation in Uganda, it will certainly spark debates on controversial issues such as the legality of amnesty. This trial will be closely monitored by all parties. Dominic Ongwen’s alleged victims will be following the trial closely. Ex-LRA commanders who have already been granted amnesty will also be following the trial closely. The Ugandan judiciary and civil society should therefore prepare accordingly.
The confirmation of charges hearing is scheduled to begin on January 21, 2016 and is expected to last three to five days. The confirmation of charges hearing is not a trial—it is a pre-trial hearing held to determine whether there is sufficient evidence to commit the case for trial. However, this could pave the way for holding the trial in Uganda if the charges against Ongwen are confirmed.
If the above issues are not properly addressed, then the in situ hearing could simply turn into The Hague transplanted in Uganda, with pre-trial hearings taking place in the neighborhood but without victims being fully engaged in the process. This would deprive victims of a unique opportunity to engage with the trial process and truly see justice being done.