Reactions to Laurent Gbagbo’s Acquittal in Lieu of Ongwen’s Ongoing Trial

On Tuesday January 15, 2019, the International Criminal Court (ICC) acquitted Laurent Gbagbo and Charles Blé Goudé of crimes against humanity. Gbagbo is the former president of Côte d’Ivoire while Blé Goudé is the former minister for sports and youth affairs. The duo was charged with four counts of crimes against humanity for acts allegedly committed during the post-election violence in the country in 2010 and 2011. The trial chamber ordered their immediate and unconditional acquittal. However, after the ICC Prosecutor’s submission of an appeal, the appeals chamber ordered the defendants to remain in custody pending an appellate decision. An appeals hearing is scheduled for February 1, 2019.

While this acquittal may not necessarily have any legal impact on other trials that are ongoing before the ICC, it attracted reactions from the public in Uganda given that the trial of Dominic Ongwen is also taking place before the same court. Gbagbo’s acquittal was a stark reminder of the unpredictable nature of trials and what could also happen in Ongwen’s case.

Ongwen is charged with 70 counts of war crimes and crimes against humanity allegedly committed in the former internally displaced persons (IDP) camps of Lukodi, Pajule, Odek, and Abok in northern Uganda. Among the 70 counts are charges of sexual and gender-based violence and the use of child soldiers. His trial before the ICC started in December 2016. The trial went on recess after the testimony of the 14th defense witness. To date, the judges have heard evidence from 14 defense witnesses over a period of 19 days. The last defense witness to testify in 2018 concluded his testimony on November 19. The trial is set to resume on January 28, 2019.

In the wake of the Gbagbo decision, the public in Uganda and the rest of the world was left to reflect over the acquittal of Gbagbo and its impact on Ongwen’s trial. In their decision to acquit Gbagbo, the court ruled that the ICC Prosecutor had failed to satisfy the burden of proof in accordance with Article 66 of the Rome Statute and that the Prosecutor did not meet the threshold of evidence in relation to the alleged crimes. There is concern in Uganda that this could also happen in Ongwen’s case.

In response, Maria Kamara of the ICC Field Outreach office in Uganda stressed the difference in Gbagbo and Ongwen’s cases. “The two cases are different and separate and before different independent chambers. The decision on Gbagbo and Blé Goudé is with no prejudice on other cases, including the Ongwen case. We cannot speculate on the outcome of a case nor on the public reaction to it.”

Dahirou Sant-Anna, the International Cooperation Adviser in the Office of the Prosecutor, ruled out the likelihood of that happening in Ongwen’s case.

“The short answer to the question as to whether the Gbagbo scenario could replay in Ongwen’s case is ‘no.’ As you have probably seen in Gbagbo’s case, two of the three judges decided that the prosecution’s evidence was so weak that there was ‘no case to answer.’ The judges in Dominic Ongwen’s case unanimously rejected the defense’s suggestion that they should consider submissions that there was ‘no case to answer.’ The prosecution’s case against Dominic Ongwen is a strong one. There are, for example, seven witnesses who have each testified that Ongwen personally forcibly married, raped and sexually enslaved them. The judges have recognized this. The real issue in [Ongwen’s] case may be whether there is some reason (for example duress or mental disease) to excuse Ongwen from criminal responsibility for his actions.”

For Ugandan writer and communications specialist Moses Odokonyero, Gbagbo’s acquittal is a demonstration of the ICC’s impartiality and also of the reality that Ongwen could be acquitted.

“I think the judges at the ICC have shown a capacity to be independent. This is good for the credibility of the court and for suspects like Ongwen. In theory it means that if his defense puts up a strong fight, Ongwen could potentially be freed,” Odokonyero said.

He however did not rule out the mixed reactions to be expected from the public in the event of an acquittal, noting the difference between Ongwen’s profile and that of Gbagbo. He noted that other ICC cases where defendants were acquitted or set free, including the Ruto and Sang case from Kenya, the Bemba case from the DRC, and Gbagbo’s case, the defendants were high-ranking politicians.

“If Ongwen is convicted, the public in Uganda might say it is because the ex-LRA rebel leader is a ‘small fish.’  If he’s released by the ICC, many will interpret it as a blow for victims of his alleged atrocities,” Odokonyero said.

Komakech Henry Kilama, a victim’s legal representative in the trial of Thomas Kwoyelo, who is being tried for grave crimes before Uganda courts, viewed Gbagbo’s acquittal as a failure by the ICC prosecutor to gather sufficient evidence and noted that it provided useful lessons for future cases.

“The acquittal of Gbagbo demonstrates that the ICC should be careful about how they handle their warrants of arrest and investigations. I think in some cases public opinion has influenced how cases are chosen,” said Kilama.

On how victims in Uganda would react to a similar verdict in the case of Ongwen, Kilama stressed the importance of reparations for victims with or without an acquittal.

“I think for most victims their focus is on receiving reparations. There are very few who are really interested in whether Ongwen is acquitted or convicted,” he said.

In October 2017, the International Justice Monitor asked community members in northern Uganda how they would react if Ongwen was acquitted by the court. In their reactions, which were mixed, some community members baulked at the possibility of an acquittal, while others welcomed it. Many pondered questions such as where Ongwen would live on his return to Uganda, the nature of relations between him and his former victims, and the security of witnesses who testified during the trial.

For Thomas, a private legal practitioner based in Gulu, Gbagbo’s acquittal deals a severe blow to victims’ expectations for reparations, and creates fears among victims that the same scenario could recur in Uganda.

“The acquittal of Gbagbo is not good for victims,” said Thomas. “This is because the crimes that were committed in Ivory Coast were very serious. It is therefore a failure for the ICC on the part of the victims because it means that they cannot receive reparations. In the case of Ongwen, the victims are also well prepared that if he is convicted then they will receive some reparations. If this does not turn out to be the case, it will create a dilemma for the ICC.”

Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda and South Sudan since 2006. He is also the 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