Why the ICC Should Reconsider its Decision on In Situ Proceedings in Uganda

On December 6, 2016, the International Criminal Court (ICC) will start the trial of Dominic Ongwen, a former commander of Lord’s Resistance Army (LRA), who is charged with committing war crimes and crimes against humanity in northern Uganda. One topic that has repeatedly generated discussion in the case of Ongwen is the possibility of the ICC holding in situ hearings in Uganda.

At a status conference held on May 23, 2016 in The Hague, the prosecution, the defense, and the victims’ representatives agreed that the trial chamber should consider holding in situ proceedings. The parties suggested holding the opening of the trial in Uganda, and preferably in Gulu. In addition, the prosecution and one of the victims’ representatives suggested that the trial chamber conducts a judicial site visit of the four locations (Pajule, Odek, Lukodi and Abok) where Ongwen allegedly committed the crimes with which he is accused.

On July 18, 2016, Trial Chamber IX of the ICC rejected these requests, citing among other reasons, security concerns and logistical difficulties involved in moving the trial to Uganda. The trial chamber also said that a decision on a judicial site visit to northern Uganda could best be made “at a later stage of the proceedings, after having heard, at least in part, the evidence to be presented at trial.”

Nevertheless, the court in its ruling acknowledged that holding the proceedings in northern Uganda would bring justice closer to the affected communities and also noted that its decision had been made “without prejudice to re-considering the matter at a later time.”

This is the second time that the court has rejected a request for in situ hearings in Ongwen’s case. In September 2015, Pre-Trial Chamber II recommended that Ongwen’s confirmation of charges hearing be held in Uganda, but this request was denied because the Ugandan Government expressed security concerns in the run up to presidential and parliamentary elections, which were about to begin.

Based on discussions with community members and representatives of civil society organizations working in Gulu, this article reflects on why the ICC should reconsider its decision to not hold hearings in Uganda.

Among other reasons, many people still strongly feel that that the trial should be held in Uganda. As one victim said, “a court process that takes place far away will not make us happy. We shall not know exactly what happened. It should take place nearby so that victims who suffered can follow it and, if possible, attend.”

The above comment indicates that some victims may not objectively interpret the ICC’s decisions in terms of the costs and security required. They will view it as a denial of participation in the process of justice. In the words of one community member: “In order for us to accept that the court case against Ongwen is the truth, it should be held in Uganda.”

Others, however, hold contrary views. Rosalba Oywa, a civil society practitioner living in Gulu said, “Looking at Uganda today, you can never know what will happen if the trial is held here. Ongwen stands a fair chance of getting justice in The Hague. You can never predict the level of intimidation that might be made against witnesses. After all the trial will be broadcast live, and in either case it is still the same judges who will try him. It will only be a change of venue but not a change of procedure.”

Another community member said, “It is not bad if he is tried outside. In Uganda there is corruption. If he is brought here the victims’ lawyers can even be bribed.”

These concerns are serious and reflect some of the reasoning of the trial chamber against in situ proceedings.  However, the argument in favor of an in situ hearing is reinforced by the fact that many victims live in a context where traditional and cultural mechanisms of justice are still very much a part of their daily lives. In line with traditional justice mechanisms of the Acholi, disputes are settled in open meetings presided over by local leaders and elders, and everyone has the right to attend and follow proceedings. Even if part of Ongwen’s trial was to be conducted in northern Uganda, many victims would be able to physically attend, a factor which will appeal to their local understanding of justice.

As one community member said, “Ongwen should be brought to Uganda so that victims see and hear the proceedings by themselves.”

Jackson Odong, who works with the Refugee Law Project in Uganda said, “I think it would be of benefit, especially in an African setting where people believe by seeing and touching. It would reinforce the confidence and belief in the court and enable people to participate. There will be more participation if the trial is held in Uganda compared to if it is held in The Hague.”

There is also evidence showing that a physical presence by the ICC in the field increases the local population’s willingness to engage with the court. One example is the numerous outreach visits that have been conducted by the ICC field office in Uganda, which have not only increased awareness about the ICC, but also motivated thousands of victims to register to participate in the case of Ongwen.

Another example can be drawn from past field visits by prominent ICC representatives to northern Uganda that were helpful in shaping a positive perception of the ICC in the region. In May 2010, the then ICC President, Judge Sang-Hyun Song, visited northern Uganda. Among other events, he attended a town hall meeting that was attended by approximately 350 people, which was a record for an ICC outreach meeting in Gulu.

In 2010, the public had a very negative attitude toward the ICC, so when community members were given an opportunity to ask questions, some people spoke harshly against the court. However, those who attended the meeting, including myself, watched admiringly as the president calmly answered the questions and justified the intervention of the ICC in northern Uganda. During the same visit, Judge Song held another community meeting that was attended by a record 670 people from Lukodi and surrounding villages.

More recently, in February 2015, ICC Prosecutor Fatou Bensouda visited northern Uganda. Like the ICC president before her, she attended a number of meetings with different sections of the population, including religious and traditional leaders, locally elected representatives, and members of civil society organizations. At these meetings she explained the position of the ICC and answered hundreds of questions.  Bensouda went a step further by visiting several communities that had been affected by the conflict, including Lukodi. Her visit had a big impact upon many community members who attended, an event that many still recall fondly. As a local leader in Lukodi said, “I was very happy with her visit. It made me believe that she had come in her capacity as the ICC prosecutor to verify for herself what had happened in Lukodi. It made me believe that the truth would come out.”

In conclusion, the above comments indicate that many people hold the view that an in situ hearing in northern Uganda would not only bring justice closer to the people, but also increase the popularity of the ICC among the population. The ICC in northern Uganda is viewed in a more favorable light today by many people compared to when it first intervened in the Ugandan situation in 2004. This is demonstrated, inter-alia, by the huge interest victims have shown for participation in Ongwen’s trial. If a few visits by prominent ICC officials could have such a big impact, imagine what an in situ hearing could do for the ICC.

Lino Owor Ogora is the Director and Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda. The opinions expressed above do not necessarily reflect the views of Open Society Justice Initiative.