This week, judges at the International Criminal Court (ICC) will hold hearings to determine whether there is enough evidence to try Dominic Ongwen, an alleged Brigadier General in the Lord’s Resistance Army (LRA), a Ugandan rebel group.
The Lord’s Resistance Army has carried out attacks in Northern Uganda for more than two decades, during which the group abducted tens of thousands of children and forced them to join its ranks. At the peak of the LRA conflict in Northern Uganda, between 1.1 and 2 million people were displaced from their homes. The group continues to commit crimes throughout the region, including in the Democratic Republic of Congo (DRC), South Sudan, and Central African Republic (CAR).
Ongwen is facing a total of 67 counts of crimes against humanity and war crimes before the ICC. The ICC prosecution has divided the charges into seven categories. Ongwen faces a total of 45 counts of crimes against humanity and war crimes for attacks on four camps of people who were displaced from their homes in Northern Uganda between 2002 and 2005. The camps of internally displaced persons (IDPs) that were attacked were Abok, Lukodi, Odek, and Pajule.
Ongwen is also facing charges for sexual and gender-based crimes. Under this category he faces 19 counts of crimes against humanity and war crimes. Additionally, he faces two counts of crimes against humanity for the conscription and use of child soldiers and one count of crimes against humanity for persecution.
The prosecution alleges that Ongwen ordered, solicited, or induced the crimes, a mode of liability provided for in Article 25(3)(b) of the Rome Statute. According to the 2005 arrest warrant, Ongwen was a member of the “Control Altar” of the LRA, “the section representing the core LRA leadership responsible for devising and implementing LRA strategy, including standing orders to attack and brutalize civilian populations.”
The prosecutor originally charged Ongwen with three counts of crimes against humanity (murder, enslavement, and inhuman acts) and four counts of war crimes (murder, cruel treatment of civilians, intentionally attacking a civilian population, and pillaging) committed in the Lukodi IDP camp in the Gulu district of Northern Uganda. On September 18, 2015, the prosecutor of the ICC announced that she would charge Ongwen with additional crimes, resulting in a total of 67 counts of war crimes and crimes against humanity.
Ongwen surrendered to United States forces in the Central African Republic in January 2015. At the time, Ongwen was allegedly the Brigade Commander of the Sinia Brigade, one of four LRA brigades. He was abducted by the LRA in 1988 when he was 13 or 14-years old. He rose through the ranks of the rebel group, becoming one of its top leaders. He was transferred to the ICC on January 16, 2015.
Why this Case Is Important
The case against Dominic Ongwen is notable for many firsts. Uganda was the first country to refer a situation to the ICC. The investigation of the atrocities in Northern Uganda was the first undertaken by the ICC’s Office of the Prosecutor (OTP) after the court was formed in 2002. And of the five top LRA leaders wanted by the court since 2005, Ongwen is the first to appear before the ICC.
Ongwen’s case also represents an opportunity for the OTP to implement its policy of giving particular attention to sexual and gender-based violence in its charges against suspects. The prosecution has included 19 counts of crimes against humanity and war crimes against Ongwen under the category of sexual and gender-based crimes in addition to other categories of crimes.
This case requires the court to confront the difficult question of how to hold to account a high-ranking member of the LRA who was also a victim of the group’s abductions and forced to become a soldier. Most of the rank and file members of the LRA are or were children who have been abducted and forced to join the group and who grew up being forced to commit acts of brutal criminality. Ongwen’s status as a child soldier may be considered as a mitigating circumstance for purposes of sentencing, if the charges are confirmed and if he is convicted. However, his status as a commander, and the level of responsibility for the crimes this suggests, might be considered an aggravating circumstance.
The case against Ongwen also tests the ICC’s geographic approach to situations and investigations. The court’s approach is based on investigations limited to individual countries, whereas the LRA operates regionally, including in the DRC, South Sudan, and CAR. However, to include crimes committed in other countries, the ICC would have to formally establish jurisdiction and open investigations in each separate country, a complicated process under the ICC’s Rome Statute. Although the ICC has jurisdiction in the DRC and CAR, the prosecutor has not expanded investigations in those situations to include LRA crimes. This limits the ability of the prosecutor to investigate and prosecute LRA leaders, including Ongwen, for the full extent of their crimes.
By mid-November 2015, at least 2,050 victims from Northern Uganda had applied to participate in the ICC proceedings against Ongwen, and more applications may have been received since then. 545 victims have been admitted to participate in the confirmation of charges proceedings, while the rest of the applications are pending. This points to significant interest in the case among victim communities from Northern Uganda. According to ICC filings, over 1,000 victims have appointed two external lawyers, including one from Uganda, to represent them in the proceedings.
However, the Pre-Trial Chamber in this case has ruled that victims who have appointed external legal representatives cannot benefit from legal aid—a decision at odds with previous general court practice. According to the chamber, victims who wish to receive legal representation free of charge must accept a lawyer from the internal ICC Office of Public Counsel for Victims. This matter raises questions about victims’ right to be genuinely involved in crucial decisions regarding their participation, and access by external counsel to practice before the ICC.
For more information, please download the 7-page briefing paper on the Ongwen hearings produced by the Open Society Justice Initiative.