International Justice Monitor

A project of the Open Society Justice Initiative

Background

© Michael Kooren / Newscom

© Michael Kooren / Newscom

Name: Dominic Ongwen

Nationality: Ugandan

Arrest Warrant Issued: Issued under seal on July 8, 2005, and unsealed on October 13, 2005

Surrendered to ICC Custody: January 16, 2015

Handed over to the International Criminal Court: January 21, 2015

Trial Start Date: December 6, 2016

Charges: Thirty-four counts of crimes against humanity and 36 counts of war crimes allegedly committed in northern Uganda between 2002 and 2005. Ongwen’s charges include responsibility for directing attacks, murder, enslavement, torture, cruel treatment, pillaging, infliction of serious bodily injury and suffering, abduction of civilian camp residents, rape, forced marriage, use of child soldiers, and other inhumane acts against civilian populations. Ongwen is accused of being part of the Lord’s Resistance Army’s (LRA) structured and efficient reporting mechanism. Therefore, some of the crimes Ongwen is being charged with are based on the principle of command or superior responsibility.

Breakdown of Charges

The prosecutor originally charged Ongwen with three counts of crimes against humanity (murder, enslavement, and inhuman acts) and four counts of war crimes (murder, cruel treatment of civilians, intentionally attacking a civilian population, and pillaging), all committed during a single attack in the Lukodi Internally Displaced Persons (IDP) camp in the Gulu district of northern Uganda. Following his arrest, on September 18, 2015, the prosecutor of the ICC announced that she would charge Ongwen with additional crimes. As a result, Ongwen’s case has set a record in terms of the number of charges attributed to a single defendant at the ICC.

Of the 70 charges, 49 are location-specific and concern crimes committed in and around Gulu district IDP camps at Pajule (October 2003), Odek (April 2004), Lukodi (May 2004), and Abok (June 2004).

Ongwen is charged under four modes of criminal liability. He is charged with crimes, committed or attempted directly, alone as well as jointly with other co-perpetrators (direct individual criminal responsibility) under Article 25(3)(a) of the Rome Statute. The prosecution also alleges that Ongwen ordered, solicited, or induced the crimes, a mode of liability provided for in Article 25(3)(b) of the Rome Statute. He is charged with any other contribution to the commission or attempted commission of a crime by a group of persons acting with a common purpose under Article 25(3)(d). Finally, he is charged under the principle of command responsibility of Article 28(a) as a leader of the LRA.

At each of these camps, under one or more of the four modes variously, Ongwen is accused of:

  • Attacks against the civilian population as a war crime
  • Murder as a crime against humanity
  • Murder as a war crime
  • Torture as a crime against humanity
  • Torture as a war crime
  • Cruel treatment as a war crime
  • Other inhumane acts as a crime against humanity
  • Enslavement as a crime against humanity
  • Pillaging as a war crime
  • Persecution of civilians perceived by the LRA as being affiliated with, or supporting the Ugandan government

In addition to being accused of committing the above acts at each IDP camp location, at the Odek Camp, where at least 61 civilians were killed, Ongwen is additionally accused of:

  • Attempted murder as a crime against humanity
  • Attempted murder as a war crime
  • Outrages upon personal dignity as a war crime

At the Lukodi Camp, where attackers killed approximately 45 civilians, including at least 12 children, Ongwen is additionally accused of:

  • Attempted murder as a crime against humanity
  • Attempted murder as a war crime
  • Destruction of property as a war crime

At the Abok Camp, where attackers killed approximately 28 civilian residents of the camp including children, Ongwen is additionally accused of:

  • Attempted murder as a crime against humanity
  • Attempted murder as a war crime
  • Destruction of property as a war crime

Nineteen of Ongwen’s charges concern Sexual and Gender Based Crimes (SGBC). He is charged with directly committing the crimes of:

  • Forced marriage as a crime against humanity
  • Torture as a crime against humanity and war crime
  • Rape as a crime against humanity and war crime
  • Sexual slavery as a crime against humanity and war crime
  • Enslavement as a crime against humanity
  • Forced pregnancy as a crime against humanity and war crime
  • Outrages upon personal dignity as a war crime

Additional, he is charged with indirectly perpetrating the following SGBC:

  • Forced marriage as a crime against humanity
  • Torture as a crime against humanity and war crime
  • Rape as a crime against humanity and war crime
  • Sexual slavery as a crime against humanity and war crime
  • Enslavement as a crimes against humanity

Two charges relate to the use of child soldiers and include accusations of:

  • Conscription of children under the age of 15 into an armed conflict as a war crime
  • Use of children under the age of 15 to participate actively in hostilities as a war crime

How did the ICC become involved in Uganda?

Uganda ratified the Rome Statute on June 14, 2002, and it entered into force on July 1, 2002. The ICC has jurisdiction with respect to war crimes, crimes against humanity, and genocide committed on Ugandan territory or by Ugandan citizens, after the entry into force of the Statute. However, the ICC only has jurisdiction in cases where the government proves unwilling or unable to investigate and prosecute those crimes.

Jurisdiction was exercised when Uganda, as a state party, referred the situation in the country to the ICC in January 2004. The government alleged war crimes and crimes against humanity were committed in the context of a conflict between the LRA and national authorities in Uganda. Former ICC prosecutor Luis Moreno-Ocampo announced his intention to investigate grave crimes in northern Uganda in July 2004. Upon investigation, the OTP found that the government’s claims met the ICC’s standards of admissibility, being “sufficiently supported by the available evidence.”

Can Ongwen be prosecuted for crimes in other countries?

The case against Ongwen tests the ICC’s geographic approach to situations and investigations. The court’s approach is based on investigations limited to individual countries, whereas the LRA operates regionally, including in the DRC, South Sudan, and CAR. However, to include crimes committed in other countries, the ICC would have to formally establish jurisdiction and open investigations in each separate country, a complicated process under the ICC’s Rome Statute. Although the ICC has jurisdiction in the DRC and CAR, the prosecutor has not expanded investigations in those situations to include LRA crimes. This limits the ability of the prosecutor to investigate and prosecute LRA leaders, including Ongwen, for the full extent of their alleged crimes.

How did the ICC prosecutor investigate Ongwen?

The OTP investigation process included conducting interviews with former LRA fighters, victims who were camp residents at the time of LRA attacks, members of former UPDF detachments, former IDP camp administrators, and post-attack investigations teams, among others. The investigation focused on alleged war crimes and crimes against humanity committed in the context of an armed conflict predominantly between the LRA and Ugandan national authorities, including the Ugandan People’s Front, mainly in northern Uganda, since July 1, 2002.

Initially, the case against Ongwen focused on a single attack that happened on a single day at a single location in Lukodi. However, victims participating in the case and other victims’ organizations called for an expansion of the charges and for the prosecutor to undertake additional investigations. The prosecutor announced on September 28, 2015 that she would expand the scope of the charges and continue investigations to cover three additional incidents as well as the crimes of persecution, sexual and gender-based crimes, and the conscription and use of child soldiers.

During its investigation, the OTP collected a variety of evidence to establish its case, including:

  • Victim or witness accounts
  • Radio broadcast recordings and short-wave radio communications between LRA commanders intercepted by Ugandan authorities
  • Witness statements of  48 civilians who were abducted by the LRA
  • Interview transcripts of 40 LRA insiders of various ranks
  • Witness statements of 16 members of the Uganda military or police forces
  • Statements of other individuals associated with the Ugandan authorities

The prosecution has said will rely on testimony from 120 witnesses, of whom 69 would be called to give live testimony. On June 13, 2016 the Prosecutor filed a request to admit previously recorded testimony of witnesses who have already testified to the court, which the trial chamber agreed to in August 2016.

Warrant of arrest and surrender

An arrest warrant was issued against Ongwen, Joseph Kony, Vincent Otti, Okot Odhiambo, and Raska Lukwiya on July 8, 2005 by Pre-Trial Chamber II on the basis of information and evidence submitted by the prosecutor that established “reasonable grounds to believe” that they ordered the commission of crimes within the jurisdiction of the court. On January 6, 2015, Ongwen surrendered to Central African Seleka rebels in the CAR after escaping from the LRA. He was transferred to the ICC on January 16, 2015.

On February 6, 2016, Ongwen’s case was severed from the original case Prosecutor v. Joseph Kony et. al, in order to avoid proceeding against the remaining suspects in absentia and delaying the pre-trial proceedings. The arrest warrant against Kony and Otti remain outstanding. Several reports claim that Otti has been killed. The cases against Odhiambo and Lukwiya were terminated upon official confirmation of their deaths.

Why was there opposition to Ongwen’s transfer to the ICC?

After Ongwen surrendered, there was considerable debate in Uganda as to whether he should be transferred to ICC custody. There were strong demands from Ugandan civil society groups and Ugandan victims of the LRA calling for Ongwen to face trial or receive amnesty in Uganda. Many religious and political leaders from northern Uganda expressed the view that Ongwen should receive amnesty under the Ugandan Amnesty Act, which affords amnesty to LRA defectors to spur defection and facilitate the return of abducted children to their families. (However, as explained below, this would not have applied to Ongwen because amnesties cannot be granted to those accused of grave crimes under international law.)

Members of Ongwen’s Acholi community demanded his return but called for resolution based on Acholi principles of justice. Others held that amnesty was not appropriate in this case because Ongwen was a high-level commander within the LRA.

Could Ongwen have been tried in Uganda?

Uganda has domesticated the Rome Statute in its International Criminal Court Act, which came into force in 2010. It has also set up an International Crimes Division (ICD) in its High Court to try Rome Statute crimes in addition to the offenses of terrorism, human trafficking, and piracy. However, because the Rome Statute was not domesticated until 2010, the ICC charges against Ongwen are not within the temporal jurisdiction of the ICD, and Article 28(7) of the Ugandan constitution provides that no person shall be charged with or convicted of a criminal offense that is founded on an act or omission that did not constitute an offense at the time it occurred.

As a Party to the Rome Statute, Uganda was obliged to transfer Ongwen to the ICC on the basis of his arrest warrant. However, the Ugandan government is allowed to formally challenge the ICC’s jurisdiction of the case. These procedural obligations and entitlements are based on the ICC’s principle of complementarity, which gives the ICC authority to exercise jurisdiction only where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings.

Despite the domestication of the Rome Statute, so far, none of the LRA’s top leaders have been brought before the Ugandan High Court. Although mid-level LRA commander Thomas Kwoyelo faces charges of grave breaches of the Geneva Conventions Act and ordinary crimes under the Ugandan penal code before the ICD, his trial has been delayed, in part, because of challenges relating to the application of Uganda’s amnesty law. This law allows rank and file members of the LRA to rejoin society without facing any sanctions so long as they renounce their membership of the rebel group. In April 2015, the Ugandan Supreme Court ruled that Kwoyelo’s trial must proceed because amnesties cannot be granted for grave crimes as recognized under international law.

On the basis of international principles and obligations, on January 17, 2015, Ongwen was escorted by an ICC delegation from CAR, where he was in custody of Ugandan forces, to the ICC detention center in The Hague. On January 20, 2015, Ongwen was formally transferred to ICC custody. After consenting to appear voluntarily before the ICC, Ongwen was transferred to the court’s detention center on January 21, 2015.

Who is paying for the Defense of Ongwen?

Under the Rome Statute, a defendant has the right to legal counsel during criminal proceedings. Ongwen is considered indigent and cannot pay for legal representation, so the court is providing legal aid during the trial. However, the decision to provide financial assistance can be reversed at any time if an investigation conducted by the court registrar reveals that the defendant can bear the cost of his counsel.

Will victims participate in this trial?

During the pre-trial proceedings, 2,026 victims were admitted to participate in the proceedings against Ongwen. In the months leading up to the beginning of the trial, another 2,083 applications from victims were admitted bringing the total to 4,109. The prosecution stated that 25 victims will also be witnesses having “dual status” in the trial proceedings.

Approximately 2,600 victims have appointed two external lawyers, including one from Uganda, to represent them in the proceedings. The remaining victims are represented by a lawyer from the internal ICC Office of Public Counsel for Victims (OPCV).

Will the ICC prosecute other suspects in Uganda?

This case was severed from a case against four other LRA leaders. The court has terminated proceedings against two of the accused, Okot Odhiambo and Raska Lukwiya after confirming their deaths. The other two accused, Joseph Kony and Vincent Otti, remain at large.

Where is the trial being held?

There are strong demands from victims’ groups to hold portions of the trial in Uganda. When the ICC prosecutor visited Uganda in May 2015, she was met with repeated requests for the confirmation of charges hearing to be held in northern Uganda to make the proceedings more accessible to the local communities victimized by the LRA. On July 13, 2015, in response to the pre-trial chamber’s request for parties to contribute observations on in situ hearings, the defense recommended that the confirmation of charges hearing be held in Gulu town in northern Uganda. The prosecution also supported an in situ hearing – nonetheless presenting a variety of factors for and against.

Despite strong recommendations from the pre-trial chamber, the ICC Presidency decided to hold the hearings at the ICC premises in The Hague, stating that potential risks of holding the hearings in Uganda outweighed potential benefits. The Presidency was particularly concerned about the significant costs of moving the proceedings to Uganda, as well as the potential for the case to be impacted by political tensions associated with the cotemporaneous Ugandan elections.

In May 2016, the defense expressed its continued support for in situ hearings, requesting, at minimum, that opening statements be held in Gulu. Within the same month, the Victim’s Legal Representatives also called for hearings in Uganda – noting that during engagements and consultations victims have expressed support for in situ proceedings. However, on July 18, 2016 the trial chamber denied these requests citing security concerns and the workload of the judges among the reasons why the trial location would remain in The Hague.

Is Ongwen a victim?

This case requires the court to confront the difficult question of how to hold to account a high-ranking member of the LRA who was also a victim of the group’s abductions and forced to become a soldier. Most of the rank and file members of the LRA are or were children who have been abducted and forced to join the group and who grew up being forced to commit acts of brutal criminality. As many commentators have noted: Ongwen’s abduction itself was a war crime; he was denied parental care; and spent formative years under the control of adults who used violence and extreme brutality as a form of discipline and punishment. Ongwen’s status as a child soldier may be considered as a mitigating circumstance for purposes of sentencing, if he is convicted.

The Rome Statute does not provide jurisdiction over crimes committed by a person under the age of 18 years, but Ongwen is being suspected of international crimes he allegedly committed as an adult and therefore faces individual criminal responsibility for his alleged actions.

What is the background of the conflict in the Uganda?

Ongwen is charged with crimes that were committed in the context of armed conflict between the Lords’ Resistance (LRA) army and The Uganda People’s Defense Force (UPDF), the regular military of the government of Uganda. The LRA is an organized armed group that, from at least July 2002 to December 2005, sought to overthrow the government of Uganda through armed rebellion. The LRA carried out attacks directed against the civilian population of northern Uganda. The LRA maintained its supply of soldiers through the abduction of civilians, including children under the age of 15 years. Women and girls were abducted to distribute among LRA fighters to serve as domestic slaves and/or exclusive conjugal partners.

Soon after he seized power in a coup in 1986, Uganda’s current president, Yoweri Museveni, faced rebellion from several armed groups in northern Uganda. One of the most prominent of those groups, the Holy Spirit Movement, came close to attacking Uganda’s capital, Kampala, which is located in the central part of the country. In 1987, the Holy Spirit Movement dwindled when its leader, Alice Lakwena, fled Uganda to seek refuge in neighboring Kenya. Joseph Kony, a member of the Holy Spirit Movement, took the remnants of the group and formed what would later be known as the LRA. Soon the LRA eclipsed the other armed groups operating in northern Uganda.

The LRA grew in size by continuously abducting children. The abducted boys were usually forced to fight or become porters while the girls were usually turned into sex slaves or forcibly married to men in the LRA. The group never held any territory, but it terrorized northern Uganda through its attacks on villages and towns and abduction of their children. The LRA carried out attacks in northern Uganda for more than two decades, during which the group abducted tens of thousands of children and forced them to join its ranks. At the peak of the LRA conflict in northern Uganda, between 1.1 and 2 million people were displaced from their homes. The group continues to commit crimes throughout the region, including in the DRC, South Sudan, and CAR.

The leader and commander-in-chief of the LRA was Joseph Kony. His headquarters was titled Control Altar. LRA forces were allegedly divided into four brigades named Stockree, Sinia, Trinkle and Gilva, each of which was headed by a brigade commander. LRA fighters were conditioned under threat of physical punishment to obey hierarchy and to follow orders issued by superior commanders.

In 2002, the Ugandan government launched a major military offensive against the LRA. A consequence of the conflict was the displacement of hundreds of thousands of people from their villages and towns as civilians got caught in the fighting between the Ugandan army and the LRA. The displaced civilians ended up living in camps for several years before eventually moving back to their villages and towns.

In 2006, the government of South Sudan, which was then an autonomous region within Sudan, initiated a peace process between the Ugandan government and the LRA. For the two or so years the South Sudanese-led process went on, the LRA fighters were based in two camps along the border of the DRC and Sudan, where they were fed and sheltered. The government of South Sudan guaranteed their security through its army, the Sudanese People’s Liberation Army, against attacks from the Ugandan army. The negotiating teams finalized a peace agreement but it was never signed by LRA leader Joseph Kony. He failed to show up, even though the government of South Sudan arranged several times for a secure location for him to sign the agreement. At that time, Ongwen’s current defense lawyer for his case before the ICC, Krispus Ayena Odongo, was counsel for the LRA during these negotiations.