Q&A on the Dominic Ongwen Case at the ICC

1. Who is Dominic Ongwen and what are the charges that the Office of the Prosecutor will present against him?

Dominic Ongwen was among the most senior commanders of the Lord’s Resistance Army (LRA) the rebel armed group in Northern Uganda. [1]

In total, Dominic Ongwen is charged with being criminally responsible for 70 counts of war crimes and crimes against humanity committed between July 2002 and December 2005 in four internally displaced persons (IDP) camps in Northern Uganda (Lukodi IDP camp in Gulu, Odek IDP camp in Gulu, Pajule IDP camp in Pader district, and the Abok IDP camp in Apac district).

Charges include murder, enslavement, inhumane acts of inflicting serious bodily injury and suffering, use and conscription of child soldiers, sexual and gender-based crimes including rape, forced marriage and sexual slavery, torture, attacks on IDP camps and persecution, intentionally directing an attack against a civilian population, pillaging. [2]

Originally charging Ongwen with three counts of crimes against humanity and four counts of war crimes in 2005, the Prosecutor decided ten years later to extend the charges against Dominic Ongwen after he was transferred to the ICC with additional crimes relating to attacks in the Pajule, Odek and Abok IDP camps and including sexual and gender-based crimes.

Dominic Ongwen was born in Coorom, Kilak County, Amuru District, Northern Uganda in 1975. He was abducted as a child and recruited to become part of the armed rebel group Lord's Resistance Army. In March 2004, Ongwen was put in charge of the Sinia brigade. He commanded this brigade during numerous operations in 2004 and 2005, including the attacks of IDP camps which form the basis for his charges.

2. What is the Lord`s Resistance Army and what is the scope of the ICC crimes targeted in the Uganda situation?

The Lord's Resistance Army (LRA) is an armed rebel group led by Joseph Kony which was organised around 1987. It initially fought the Ugandan government in Northern Uganda, with incursions into Southern Sudan. From at least July 2002 to December 2005 an armed conflict not of an international character between the LRA and armed forces of the Government of Uganda existed in Northern Uganda. Ugandan military operations forced the group out of Uganda in 2005 and 2006. After that, the LRA gradually became a regional threat, operating in the remote border areas between Southern Sudan, the Democratic Republic of Congo, and the Central African Republic (CAR).

Aside from Ongwen, two other LRA commanders are suspected by the ICC in the Uganda situation: Joseph Kony, leader, chairman and LRA commander, and Vincent Otti, vice-chairman and LRA second-in-command. Two other high-ranking LRA officials were initially targeted but proceedings terminated when their death was confirmed.

Since its creation, including the period from July 2002 to at least December 2005, the LRA allegedly carried out an insurgency against the Government of Uganda and the Ugandan Army (also known as the Uganda People's Defence Force - UPDF - and local defence units - LDUs) and against civilian populations. In pursuing its goals, the LRA has engaged in a cycle of violence and established a pattern of "brutalisation of civilians" by acts including murder, abduction, sexual enslavement, mutilation of men, women and children, as well as mass burnings of houses and looting of camp settlements. The abducted civilians, including children, are said to have been forcibly recruited as fighters, porters and sex slaves to serve the LRA and to contribute to attacks against the Ugandan army and civilian communities. [3] There was also a policy of abducting women and girls to distribute them among LRA fighters to serve as domestic slaves and/or exclusive conjugal partners made, inter alia, to perform domestic duties and to submit to sexual intercourse. [4]

3. Why is the trial taking place more than ten years after the issuance of the first warrant of arrest against Ongwen and other LRA commanders?

Uganda signed the Rome Statute on 17 March 1999 and ratified it on 14 June 2002 becoming a State Party to the ICC Statute. On 16 December 2003, the Government of Uganda referred the situation concerning Northern Uganda to the Office of the Prosecutor as the first country to self-refer following years of unsuccessful peace talks with the LRA. On 29 July 2004, the Prosecutor determined that there was a reasonable basis to open an investigation into the situation concerning Northern Uganda. [5]

On 8 July 2005, Pre-Trial Chamber II issued warrants of arrest against Dominic Ongwen, together with four other LRA senior leaders - Joseph Kony, Vincent Otti, Raska Lukwiya and Okot Odhiambo - for the commission of crimes against humanity and war crimes and requested the Republic of Uganda to search for, arrest, detain and surrender them to the Court.

For more than ten years, national, regional and international security forces were unable to apprehend these suspects. On 6 January 2015, Dominic Ongwen surrendered to US military stationed in CAR, fighting against the LRA. Following talks between the US, CAR and Uganda, Ongwen was transferred into the custody of the Ugandan contingent of the African Union Anti - LRA Task Force. He was then transferred to the ICC detention center in the Hague where he arrived on 21 January 2015, triggering the proceedings towards his confirmation of charges hearing.

His initial appearance before the single Judge of Pre-Trial Chamber II took place on 26 January 2015. In February 2015, the Prosecutor had requested a postponement of Ongwen's confirmation of charges hearing to allow more time to carry out additional investigations, after which she provided, on 21 December 2015, the extended list of charges she intends to bring against Dominic Ongwen. [6] The charges against Dominic Ongwen were confirmed by Pre-Trial Chamer II on 23 March 2016. [7]

Proceedings against the other remaining two suspects in the Uganda situation, Joseph Kony and Vincent Otti, who are still at large, have been separated from the Ongwen case.

4. What will happen during the Ongwen trial phase and what will be decided?

The trial will open on 6 December 2016 with the reading of the charges against Dominic Ongwen. The Judges will verify that the accused understood the nature of the charges. He will be asked by the Judges whether he makes an admission of guilt or pleads not guilty to the charges. Opening statements will be delivered by the Office of the Prosecutor and the Legal Representatives of Victims. At its request, the Defence will make its opening statements at the beginning of the presentation of its evidence.

The trial will resume on 16 January 2017, when the Prosecution will begin to present its case and witnesses before the judges. The Prosecution's case is likely to take some time (the OTP intending to rely on 115 witnesses at trial, though seeking to call 65 of them [8]), and after it is finished the Legal Representatives of Victims may submit observations, and the Defence will have the opportunity to make opening statements, present its case and call witnesses.

While the Prosecution must prove the guilt of the accused, the Trial Chamber will convict someone only if it is satisfied that the charges have been proven beyond reasonable doubt. At the end of the trial hearings, the Judges will render their judgement within a reasonable period of time. The verdict will be read out in public and will either acquit or convict the accused. If the accused is convicted, a sentence will be imposed on him in a separate decision. The Prosecution and the Defence may appeal the judgement and/or the decision on sentencing before the ICC's Appeals Chamber. [9]

5. How many victims are participating in the Ongwen case and how are they represented?

Participation in ICC proceedings and legal representation are rights guaranteed to victims by the ICC Statute. Their participation, as guaranteed by Article 68(3) of the ICC Statute, is a key part of the accountability process and thus constitutes an essential component of justice. As a main principle, recalled in Rule 90(1) of the ICC Rules of Procedure and Evidence, victims are free to choose a legal representative.

"Effective legal representation has two very essential components: 1) to represent victims' interests genuinely in Court, and 2) to ensure that victims actually 'participate' through regular opportunities for them to give views and instruct lawyers". [10]

Victims of LRA crimes have taken great interest in the Ongwen case and many have decided to apply for participation in the case before the ICC. A total number of 4,107 victims have been accepted to participate in the proceedings in the Ongwen case.

They are represented by two teams of lawyers. A first group of approximately 2,601 participating victims is represented by two lawyers, Joseph Akwenyu Manoba from Uganda and Francisco Cox from Chile, who were chosen by these victims under Rule 90(1), which allows victims to choose a Legal Representative. Paolina Massidda from the Office of Public Counsel for Victims (OPCV) and Jane Adong (Ugandan Field Counsel) represent a second group of approximately 1,502 victims who did not choose a lawyer (legal representation of 4 victims needed to be further clarified on 30 November).

In a decision issued on 27 November 2015 Judge Cuno Tarfusser confirmed the appointment of Manoba and Cox as representatives of the group of admitted victims at the time. However, the Judge ruled that this group of victims is not entitled to legal aid (to pay their legal team) on the basis of the fact that the counsel chosen by victims shall not be considered a "common legal representative", within the applicable rules, because he "was not chosen by the Court" on the basis of a "transparent and competitive procedure organised by the Registry" and that allocating legal aid would be "a disproportionate and unjustified burden to the Court's legal aid budget." [11] The Judge therefore ruled that the victims, "even if they lack the means to pay, do not qualify for financial assistance by the Court." [12]

Following the Pre Trial Judge, the Trial Chamber single judge, Judge Bertram Schmitt, decided in May 2016 [13] and in November 2016 not to grant legal aid for external counsels chosen by victims. However in his last decision, he decided to leave up to the Registrar's prerogative the decision to grand legal aid for the participation at the trial of the 2600 victims already participating through their external laywers working pro bono since the pre trial phase. [14]

Several NGOs, including FIDH, called upon the Registrar to grant LRV adequate legal aid for victims to effectively participate in proceedings. [15]

On 29 November 2016, the Registrar decided effectively to provide means for the victims’ external counsels’ team. Legal aid should be now designed and implemented by the Registry in a way to effectively satisfy victims’ rights and needs in order to ensure the most meaningful participation.

6. Are there any domestic proceedings in Uganda in relation to the LRA crimes?

The situation in Uganda presents a challenge to the principle of complementarity under which the ICC will intervene only when a domestic justice system is unable or unwilling to prosecute international crimes. Since the original arrest warrants were issued, the Uganda government has created the International Crimes Division (ICD) of the High Court of Uganda dedicated to try war crimes, crimes against humanity, and other crimes. Although national trials could make an important contribution to securing justice for crimes committed during the conflict in northern Uganda, serious legal obstacles have emerged that call into question whether the division can fulfil its potential.

One of them is the 2000 Amnesty Act implemented by Uganda government which gives blanket amnesty to all rebels - including LRA members - who willingly surrender and renounce their participation in armed rebellion against the State. Over 13,000 LRA members (along with approximately another 14,000 members of other armed groups) have received amnesty to date under the law. By many accounts Dominic Ongwen is eligible for amnesty under the Amnesty Act as he has willingly surrendered.

The only case to the date related to the conflict in Northern Uganda that has been brought before the International Crimes Division is against Thomas Kwoyelo, a former LRA member captured in the DRC in 2008 and first appearing before the ICD in July 2011. Kwoyelo was charged with war crimes and crimes against humanity. Kwoyelo's proceedings were halted after Uganda's Constitutional Court ruled in September 2011 that he was entitled to amnesty under the country's Amnesty Act and ordered the ICD to cease his trial. After several appeals proceedings, the Supreme Court of Uganda ruled in April 2015 that Kwoyelo’s trial was constitutional and did not violate the Amnesty Act, as amnesties cannot be granted for crimes under international law. An Amnesty Amendment Bill 2015, seeking to "promote accountability for crimes against humanity, war crimes and genocide, without necessarily barring the award of amnesty to those who may be entitled to it" [16], has been proposed the Ugandan Law Reform Commission and currently with the Ministry of Justice and Constitutional Affairs. Charges have been extended to include the sexual and gender-based crimes. Several pre-trial hearings were held in 2016, but it is still unclear when the actual trial would begin.

7. Why is the ICC not prosecuting Ongwen for international crimes committed by the LRA in other States Parties to the ICC, as in CAR or DRC?

The LRA has allegedly committed grave crimes outside of Uganda as well, including in the Democratic Republic of Congo, the Central African Republic and South Sudan. Nonetheless, the ICC has focused its investigation in Uganda, due to the State's referral of the situation in 2003 establishing the Court's jurisdiction. The ICC must establish jurisdiction over crimes in each State where investigations occur, though jurisdiction of the Court already exists in CAR and DRC due to separate situations previously referred. Thus far, no national proceedings have occurred to bring about justice for LRA crimes in the wider region.

8. Can Ongwen be charged if he was a child soldier?

The ICC Statute does not provide jurisdiction over crimes committed by a person under the age of 18 years. Dominic Ongwen, however, is being suspected of international crimes he allegedly committed as an adult. Mr Ongwen’s status as a child abductee could be a mitigating factor during sentencing in the event of conviction, and may also be relevant to his legal defence.