Build Momentum Towards Domestic Proceedings: Insights on Ongwen’s Trial from Dr. Phil Clark

On May 17, Dr. Phil Clark, the author of the book Distant Justice: The Impact of the International Criminal Court on African Politics launched his book in Gulu town in the presence of civil society representatives and community members. In this interview, he offers his insights on the trial of Dominic Ongwen that is currently ongoing at the International Criminal Court (ICC). (An earlier International Justice Monitor interview with Dr. Clark on a broad range of topics is available in two-part series here and here.)

Ongwen is a former commander of the Lord’s Resistance Army (LRA) who is charged with 70 counts of war crimes and crimes against humanity allegedly committed in the former 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 has been ongoing since December 2016.

Lino Owor (LO): Are you following Ongwen’s trial?

Phil Clark (PC): I am following Ongwen’s trial. I also know that here in northern Uganda there is huge interest in the case and the video broadcasts of the hearings, from what I am told, are drawing very large crowds. So this is a very heavily observed case, with a great deal of local interest.

LO: In your book, you were very critical of the ICC, but how would you rate the ICC’s handling of Ongwen’s case?

PC: Ongwen’s case is interesting because the Office of the Prosecutor (OTP) hibernated the situation in northern Uganda for five years because of the difficulties in capturing any of the remaining LRA commanders and transferring them to The Hague. That is having a significant impact on how the Ongwen case is playing out so far. You can see that there is disjointedness in the prosecution’s case. The problem has been the prosecution’s investigators being parachuted into places like northern Uganda for very short periods without building the necessary trust with local informants. As a result, the OTP has generally struggled to obtain high quality evidence and some of that has been apparent in the Ongwen case. Some of the witnesses have not been particularly strong because they weren’t well selected in the field.

After the five years’ hibernation the prosecution conducted fresh investigations and some of the strongest witnesses have come from that second batch. The difficulty for the prosecution stems from the mixing of these two periods of investigations because these were conducted under two different prosecutors. This points to a general challenge for the prosecution in other situations around Africa, where the OTP has also hibernated situations for long periods. It isn’t easy to pause these cases, come back to them, and maintain the trust of local informants and consistency in the way cases are presented in court.

LO: Overall, do you think the prosecution has done a good job with its handling of Ongwen’s case?

PC: It remains to be seen because, as is always the case with these trials, it is only when we get to the very end and we see the defense try to pick the prosecution’s case apart that we really know how effective it was. One thing that is important to recognize with Ongwen’s case is that because it is the longest running at the ICC, there has been a wider-ranging group of witnesses than we have seen in most of the other ICC cases to date. The prosecution has had more time to do follow-up interviews in communities in northern Uganda and once the hibernation of the case was lifted and those investigators went back to northern Uganda, they were able to find – possibly not the strongest witnesses – but at least a wider range of witnesses. The prosecution has to be given some credit for trying to gather a more multifaceted base of eyewitness testimony than we have seen in many of other prosecution cases in other African states.

LO: Some people in northern Uganda were critical about some of the experts chosen by the prosecution. What would you say about that?

PC: This is an issue that goes to the heart of my book because one of the things that has become apparent with the ICC as a whole is the court’s deep suspicion of local actors and that extends from the chambers through the prosecution, defense, and registry. There is a culture embedded within the ICC that is suspicious of local specialists and sees them as biased, tainted, even corrupt. Some of the foreign academics called as witnesses in the Ongwen trial have given some really important testimony. However, this case has been denied one vital source of information, which is the deep insights of specialists here in northern Uganda, including for the various cultural contexts in which Ongwen is said to have committed these crimes. For example, it is peculiar that we still have not seen any evidence in this case given by a northern Ugandan sociologist or anthropologist who can explain the rituals performed by the LRA as a mechanism of control, which would help the court better understand the spiritual situation which surrounds Ongwen and his alleged crimes.

LO: Where do you think the defense is getting it right or wrong?

PC: One of the things that has become very apparent, not just in the Ongwen case but across all the ICC cases, is that the defense are learning faster than the prosecution. This is always the case. If you look at all the other international tribunals, it is the defense that often tries to get a better grip of the domestic terrain, often because they have to listen to the prosecution’s case and can respond. But even in the defense’s case, there has been a tendency to want to use outsiders, particularly to interpret some of the cultural dimensions. One of the very powerful things that the defense has been able to do is to bring a small group of former LRA combatants [to testify] who have been able to humanize Ongwen in a way that the prosecution simply can’t.

LO: What about the defense’s claims that Ongwen suffers ill mental health?

PC: This is where their case has started to fray. They have gotten themselves in a bit of a tangle. The defense were on much stronger ground when they characterized Ongwen in dual victim-perpetrator terms. The mental health defense does not seem convincing in the courtroom partly because it is just very difficult to quantify. It is a hugely subjective area of the law, not just at the ICC, but in all legal jurisdictions. You need in-depth knowledge not just about Ongwen in jail but Ongwen then, in order to show a pattern of mental health when he was an active combatant in the field.

LO: In your book, you argue very passionately about making more use of domestic courts as compared to the ICC. Looking at Ongwen’s case, do you think it would have been successfully prosecuted in Uganda?

PC: The Ongwen case could have been successfully prosecuted in Uganda had the necessary pressure been put on the judicial system here. Many local people’s disappointment is that the International Crimes Division (ICD) here in Uganda is ultimately window dressing. This is an institution created after the Juba peace process that has never been fully equipped by the government to succeed. The government felt pressure during the Juba talks to create a domestic accountability system but later feared that creating something too robust may start to highlight government crimes during the LRA conflict.

The Ongwen case was an opportunity to pressure the government of Uganda to make the ICD work, and the pressure should have come from multiple angles – from within the Ugandan judiciary, from the donors who have funded the ICD, and from the ICC itself, which should’ve spotted a chance to claim a complementarity victory by compelling the national system to make the ICD work. All that has been missed, and now Ongwen is being prosecuted in The Hague while the domestically the ICD is left in a half-hearted state. None of this benefits the Ugandan legal system or the communities affected by LRA crimes, who are left watching Ongwen’s trial on TV screens rather than in the flesh in the Gulu High Court.

LO: We still have outstanding arrest warrants for other LRA members apart from Ongwen. Would you recommend domestic trials for them in future?

PC: I argue strongly in my book that everyone’s momentum now should be towards domestic proceedings because we in many respects have already seen the best of the ICC. What we still haven’t had in Uganda and across Africa is a much more dedicated conversation about the need to bolster and support domestic institutions. It has happened in a patchwork fashion in different African states – with lots of important reforms but never coalescing into a dedicated movement to support domestic responses to mass atrocities. These domestic gains – for example the reform of the Congolese courts in Ituri and the Rwandan national courts, the use of gacaca in Rwanda, the prosecution of Hissène Habré in Senegal, the use of local rituals in northern Uganda – need to be consolidated. All of these achievements have been substantial over the last 20 years, yet international justice has dominated transitional justice debates across Africa. We need to focus on domestic remedies, with pressure back on African states and communities to deal with atrocities on their own terms. On that basis, if we see Kony captured, the focus then has to be back on the Ugandan government to deal with that case domestically.

One of the things I argue in the book is that we also have to be careful about rushing to the conclusion that the best way to deal with high-ranking suspects is always through criminal investigations and prosecutions. One of the messages that still comes strongly from many local communities and civil society in northern Uganda is that the law is not always the best way to deal with mass crimes. Not only does the response need to be domestic, but we need to be open to the possibility that the response made be non-prosecutorial – leaving open the possibility of using conditional amnesties, truth-telling practices, and community-based rituals.

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

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