In this article, Komakech Henry Kilama, a human rights lawyer and legal practitioner based in Gulu district, northern Uganda, offers his perspectives on the ongoing trial of Dominic Ongwen and the upcoming election of the next prosecutor of the International Criminal Court (ICC). Komakech is the managing partner of Komakech-Kilama & Co. Advocates, a law firm based in Gulu, and is also one of the lawyers representing victims in the trial of Thomas Kwoyelo, which is ongoing before the International Crimes Division (ICD) in Uganda.
This article offers an abridged version of an interview conducted by the International Justice Monitor to gauge Komakech’s perspectives about Ongwen’s trial. ICC Prosecutors have charged Ongwen, a former Lord’s Resistance Army (LRA) commander, with 70 counts of war crimes and crimes against humanity alleged committed during the conflict in northern Uganda.
Lino Owor Ogora (LO): In your assessment, how would you rate the handling of Ongwen’s trial by the ICC?
Komakech Henry Kilama (KK): I think the ICC has done a good job. This is not the first case that the ICC is handling. I think they have had chance to learn from other situations, which has enabled Ongwen’s trial to flow smoothly. The judges have also given all the lawyers a chance to present their case. Another positive thing with Ongwen’s case is that there is a clear timeline which clearly specifies how many witnesses, and when the prosecution and defense are expected to present their case. The prosecution was quite fast, but with the defense there has been a bit of delay, but that is normal in trials because lawyers need to be given time to do their work. In either case the judges have been quite strict and whenever they have given a break then it has been well deserved. I think this trial panel has been serious compared to other cases handled before.
LO: How would you rate the prosecution’s performance?
KK: They have already presented their case, and…in my opinion they did their best especially in light of the evidence that was available at their disposal. I think they did a good job of producing evidence to argue their case. If you compare their performance with cases, such as that of [Thomas] Lubanga, then you will find that the prosecution presented evidence in record time. Other cases have dragged for many years. So Ongwen’s case has been handled efficiently. Of course, we cannot rule out the fact that Ongwen’s case was notorious and attracted a lot of media attention, but still the prosecution did its best.
LO: What about the defense? Do you think they have done enough to counter the prosecution and create a balanced trial?
KK: I think the defense has also done a good job, although at some point their case was dominated by issues of spirituality. But that could be part of their defense strategy, and any good lawyer should stick to their strategy. A good defense strategy is to create doubt in the mind of the court, and I think the defense is doing a good job in that regard.
LO: And the victims’ counsel?
KK: I think the victims’ counsel has also done their best, and they have also presented witnesses. This shows the ICC’s attempt to balance between the rights of the accused and the rights of victims. I am happy that victims’ lawyers have also done their part. Even though they presented few witnesses, it is better than nothing at all.
LO: What lessons do you think the ICC can learn from its handling of Ongwen’s case?
KK: I think the major lesson to learn is how to handle accused people who are victims of the same crimes they are accused of. Ongwen’s case has been the first of its kind compared to others, like [Jean-Pierre] Bemba, who were adults at the time they were alleged to have committed those crimes. But for Ongwen, he was a child. So, the question is how do you handle such victims?
For Ongwen, the ICC has taken a stance that they are prosecuting him for crimes he committed when he was above the age of 18 years. I think the ICC also needs to learn how to sustain public interest in court proceedings over an extended period. In northern Uganda, interest in following proceedings has now gone down compared to the beginning of the trial. Hence, there is need for more public relations and outreach. The ICC outreach in Uganda has tried, but there is need for more publicity of future cases.
LO: As a human rights lawyer, how would you recommend suspects like Ongwen, who have dual victim-perpetrator identities, be handled?
KK: I think there is no excuse for them to be let off the hook; they should be prosecuted. But at the end of proceedings, their unique status should be taken into consideration as a mitigating factor in the event that it is true that they were victims. The courts should exercise flexibility and be conscious when handling such people. This is not to say they should be acquitted, but to say they should be handled differently from more serious perpetrators.
LO: As you are aware, the term of office of Fatou Bensouds, the current ICC Prosecutor, is coming to an end. Article 42(3) of the Rome Statute requires that the prosecutor be a person of “high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases.” Are there any additional requirements you feel are necessary or relevant?
KK: I do not know who the next prosecutor may be, but I am sure it may be someone outside the African continent given that Bensuda is an African. Whoever is selected must be someone who can handle the politics of the court and is in touch with current trends and developments. It must be someone who can balance the politics of African States, the African Union, and the West. Ocampo, the first prosecutor was accused of being too political. Bensouda tried and was taken more seriously than Ocampo. The next person should propel the Office of the Prosecutor to greater heights.
LO: What challenges may influence the next prosecutor’s ability to exercise effectively their mandate and how can he or she address them?
KK: There are many challenges, including politics as I mentioned. But the next prosecutor should really be someone who can exercise independence and courage even in the face of bullying. For example, for Bensouda the USA placed a travel ban on her. So politics is a major challenge of the court, and I do not know how the next prosecutor will navigate it. Bensouda has done well so we should get someone like her or even better than her.
LO: Do you think the ICC prosecutor should have a largely diplomatic role as the head of the OTP, or should he/she focus on day-to-day management of investigations and prosecutions?
KK: My understanding is that the prosecutor has deputies who can handle the cases on his or her behalf. I think the prosecutor should concentrate more on diplomacy and balancing the politics against the court. The prosecutor is even more visible than the president of the court, hence making his/her roles more political in nature. As one of the faces of the court, the prosecutor should therefore strike a role between playing a diplomatic and political role and ensuring that cases under his/her jurisdiction are well handled. He/she should be someone who can effectively deal with [multilateral] bodies, such as the UN Security Council, and the international community.
LO: Are there any other incidents in Uganda you feel the next prosecutor should focus on, or do you think Uganda’s chapter before the ICC is closed, at least for now?
KK: I think there are issues that still require the attention of the next prosecutor. These include issues such as the Kasese killings. I understand there was a petition before the ICC to have this investigated, however, I do not know if the ICC will handle it or not. There were also issues of post-election violence in Uganda. I am not sure how this can be handled.
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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