It was the LRA who abducted and killed people in northern Uganda, and I am one of the people against whom the LRA committed atrocities.
On a crisp morning, in early December 2016, Dominic Ongwen rose to his feet at the International Criminal Court (ICC) in the Hague. He spoke the above words before pleading not guilty to 70 counts of war crimes and crimes against humanity.
The laundry list of accusations levelled against him include murder, enslavement, cruel treatment of civilians and the use of children under the age of 15 to participate actively in hostilities. It is this final charge which makes Dominic Ongwen unique. As Kasande and Ladisch explain:
Ongwen … is the first person facing trial at the ICC for crimes of which he was also a victim.
Born in Acholiland, northern Uganda, Ongwen entered a country riven with deep ethnic and sectarian divides. In 1985, a coup d’êtat, the fourth since Ongwen’s birth, resulted in the overthrow of the first president also to hail from Acholiland. His demise was at the hands of Yoweri Musevini, who took up the mantle of President of Uganda.
This coup acted as a catalyst, galvanising Joseph Kony along with thousands of rebel fighters across the region. In 1988 they established the Lord’s Resistance Army (LRA). Its purpose was to wage an armed rebellion against the Musevini administration. The LRA became notorious for its brutality: from the “deliberate targeting of civilians” to the plundering of villages they passed through as they swept across 5 African nations. It was perhaps most well-known for the abduction of some 30,000 children over the last 30-years. Male abductees were taught to fight as soldiers in their LRA: their initiation a brutal cocktail of military training and indoctrination.
At the tender age of 10 years old, Ongwen was abducted by the LRA. His destiny, he was told, was to fight for the rights of the Acholi people. A witness explained to Erin K. Baines, Professor at the Liu Institute for Global Issues, that when he was taken Ongwen was “so small he had to be carried for the first few days by other captives”.
He soon found his feet, however. Ascending through the ranks of the organisation, Dominic Ongwen ultimately became a high-ranking commander. The testimony of survivors and other LRA fighters indicates that he was directly involved in some of the worst atrocities to hit the region, including the Makombo massacre which left 340 civilians dead. In 2005, a warrant for his arrest was sealed by judges at the ICC.
Dominic Ongwen eventually fled the regime in 2014, as Kony began demoting and executing his own troops. He entered the Central African Republic (CAR) where he ultimately handed himself over to Séléka rebels. They transferred him to the United States who passed him on to the Hague.
At an early hearing, and drawing the Pre-Trial Chamber’s attention to their client’s tumultuous past, the defence team attempted to argue that the case should be dismissed on the basis that the accused should benefit from “international legal protection” as a child soldier himself. The Chamber stated, tersely, that the argument was “entirely without legal basis“.
Alternatively, the accused argued that the case should be dismissed by virtue of the fact that, as a child soldier, he was under duress when he committed the crimes with which he was charged. The Pre-Trial Chamber gave this argument short shrift because, crucially, to succeed on a defence of duress the accused must not cause greater harm than the harm that they seek to avoid. This was clearly not made out on the evidence before the Chamber.
His status as a former-child soldier, therefore, does not exonerate him. However, it will be open to the defence team to rely on it as a significant mitigating factor, if he is ultimately convicted.
While some might argue that putting him on trial is an exercise in selective justice, the buck must stop somewhere. Dominic Ongwen was a child when he was abducted, but he soon became an adult and made choices which others did not. He ascended into the ranks of the LRA High Command, instead of fleeing the organisation. He allegedly ordered the rape and pillage of hundreds of villages across Africa and despite – or perhaps because of – his past he is charged with recruiting thousands of child soldiers. It is right that he be tried for those crimes.
It should be born in mind, however, that if he is convicted punitive measures are just one aspect of international criminal justice – an aspect which is arguably of marginal importance to those affected by crimes on such a massive scale. More crucial is Article 79 of the Rome Statute. It establishes an arm of the Court known as the Trust Fund for Victims (TFV).
The TFV is funded by a mixture of forfeitures of property post-conviction, fines and voluntary contributions. It has a dual mandate which enables it to provide:
1. ‘assistance’ to individuals in countries blighted by war, but without the need for an individual to have been convicted; and
2. ‘reparations’ which embellish the assistance provided with a symbolic element as these are ordered only once an individual has been convicted of a crime.
Combining the two mandates, the TFV has so far benefitted over 56,000 victims of crime. It is thanks, in part, to this mechanism that the ICC stands, today, at the forefront of transitional justice.
To take the case of Thomas Lubanga as an example: he too was convicted, in 2012, of enlisting and conscripting children under the age of 15. After his trial, the TFV set to work devising a reparations plan. The process, which took several years, involved consulting with various stakeholders. Around 40% of those consulted were children, including former child soldiers. This victim-centric approach resulted in a plan involving the rehabilitation of former child soldiers and their families in the Democratic Republic of the Congo (DRC). The ICC approved the plan last year.
If Dominic Ongwen is guilty as charged, his conviction would offer Uganda, for the first time, a comprehensive reparations programme. It is for this reason that for many victims, whose lives were torn asunder by the actions of the LRA, reparations alone will be the “sign of a successful trial”. A reparations package focused principally on the rehabilitation of former child soldiers would also resonate far more deeply in light of the accused’s tragic past – symbolising the end of a vicious cycle which has seen countless children turned into perpetrators of the very crimes which cost them their innocence.