When Dominic Ongwen ended up at the International Criminal Court in January 2015, after emerging from hiding in the bush of the Central Africa Republic, the issue on many people’s minds was whether it was fair to try a victim-turned-suspected perpetrator.
As the case of Ongwen, a former commander in the Lord’s Resistance Army (LRA), progressed to trial, other equally important issues shaped the arguments lawyers made in court and in written submissions, and made up the evidence they submitted. These issues included the systemic sexual violence against girls and women in the LRA; the group’s brutal initiation rituals for newly abducted boys and girls; the constant threat of violence against anyone who attempted to escape the group; and mental health in northern Uganda.
The judges of Trial Chamber IX have pronounced themselves on these and other issues in their February 4 judgment in which they found Ongwen was guilty of 61 of the 70 counts of war crimes and crimes against humanity he had been charged with. Ongwen was convicted for his role as a battalion commander then brigade commander in LRA’s Sinia brigade between July 2002 and December 2005.
He was convicted for attacks during that period on four camps for internally displaced people in northern Uganda. He was also convicted for sex crimes against several women and conscripting and using children as soldiers.
During the course of the proceedings against him, it became clear that Ongwen’s age would be one of the issues the judges would make a pronouncement on. This is because there was a discrepancy between what Ongwen said was his age on the day he first appeared before the ICC and what witnesses who knew him said his age was. These witnesses were either relatives or people the LRA abducted from the same place and on the same day as Ongwen was. And Ongwen’s lawyers made his age an issue in their questioning of witnesses and submissions.
In their judgment, the judges concluded that Ongwen was born in or around 1978 and was abducted in 1987. This meant he was nine years old when he was abducted and between 24 and 27 years when the crimes he was convicted of occurred.
During his trial, Ongwen was not the only person who was not clear about when he was born or when exactly the LRA abducted him. Many witnesses faced the same issue because if they had birth certificates, they were destroyed during the northern Uganda conflict; or their parents, who would have known such details, were killed during the conflict.
With the help of government officials, these witnesses were able to get the birth certificates and other identity documents they needed, particularly those who testified in person at the ICC in The Hague, Netherlands. This was just one example of the kind of cooperation the Ugandan government provided the ICC during the course of Ongwen’s trial.
Other forms of cooperation included Uganda’s Director of Public Prosecutions (DPP) committing in writing not to prosecute any witness who testified at the ICC and gave self-incriminatory evidence about actions they carried out when they were 18 years or younger while they were with the LRA. The DPP made this commitment in March 2017, three months after the first witness testified in Ongwen’s trial. The evidentiary part of the trial concluded in December 2019.
The government’s cooperation with the ICC also took the form of different ranks of Ugandan military and intelligence personnel testifying, including the director of legal services at the Chieftaincy of Military Intelligence.
This range and level of government cooperation in a case at the ICC is not typical.
Perhaps typical of any criminal trial, Ongwen’s case had its share of dramatic moments. Such as when a witness, who was a member of the Uganda People’s Defence Forces, became combative when he was cross-examined by Ongwen’s lawyer.
Another dramatic moment in the trial occurred on March 19, 2018 when Ongwen disrupted the testimony of a prosecution mental health expert, forcing the judges to order him to be removed from the court for the rest of that day’s hearing.
But Ongwen’s trial also had its moments of humdrum painstaking presentation of evidence. This was when the prosecution was laying the foundation for the evidence of intercepts of LRA radio communications the Ugandan government had provided. The intercepts were of communications that took place over two-way radio over long distances between LRA commanders. Ugandan government interceptors recorded these communications on cassettes.
For several weeks, the courtroom was filled with the crackle commonly heard over two-way radio as the prosecution played multiple excerpts of the intercepts for the intelligence and military men who had recorded those intercepts to authenticate them. As the sound was not of high quality, at times the same excerpt had to be replayed for a witness to be able to respond to questions he had been asked.
After 117 witnesses (prosecution, defence and victims’) testified, the hearings in the Ongwen trial concluded in December 2019. The trial is now in the sentencing phase, with hearings scheduled for next month.
Ongwen’s trial directly involved only a few thousand victims of LRA atrocities and it obviously cannot include all the victims of LRA atrocities committed over a span of two decades between 1986 and 2006. But for those hundreds of thousands of victims there is little else to look forward to for the foreseeable future. Apart from the trial of another LRA commander, Thomas Kwoyelo before the Ugandan High Court, there is no other active judicial process against other former LRA commanders.