This guest blog is written by LLM graduate, Claire Raissian.
The trial of Ugandan former child soldier, Dominic Ongwen commenced before the International Criminal Court (ICC) on December 6, 2016. In light of significant evidence of state-sponsored violence and governmental negligence which contributed to the destruction of communities in Acholi-land, the Ongwen case has sparked international debate on various issues, including the politics involved in the ICC’s intervention in Uganda, and the one-sided nature of this particular fight against impunity.
The Office of the Prosecutor successfully expanded the charges against Ongwen in early 2016 and he now stands accused of seventy counts of war crimes and crimes against humanity before the ICC. The charges detail grave and extraordinary levels of violence, which he allegedly led as an adult and directed against his own people including inter alia, a series of attacks on Internally Displaced Persons (IDP) camps in Lukodi, Odek, Pajule and Abok between 2003 and 2004. He is the first known person to stand trial in an international court or tribunal, accused of crimes of which he is also a victim, specifically the war crimes of cruel treatment and conscription and use of a child soldier, and the crime of humanity of enslavement. The accused has pleaded not guilty to all of the charges and claims that he is a victim of the LRA, and does not personify the group.
The Ongwen case has not only prompted a questioning as to the effectiveness or otherwise of measures of international protection available to child soldiers, but has also led international legal actors to revisit the debate regarding the propriety of a prosecutorial response to perpetrators of mass atrocity in the context of transitional justice. Revisiting this now requires a reframing of the debate in the context of child soldiers, specifically young abductees who were forcibly recruited into an armed group and used to participate in hostilities. Although Ongwen may be a unique defendant, he represents thousands of children in this respect.
The significance of the international criminal law response to Ongwen’s case is further underlined in that it will contribute to what is known as a “paradigm of transitional jurisprudence” and additionally set a sort of precedent in international law, the implications of which may resonate in post-conflict northern Uganda and beyond for many generations to come. The peace that exists in northern Uganda may be termed a ‘negative peace’ where the root causes of the conflict have not yet been addressed and no formal agreement has been signed to establish it. In fact, Joseph Kony remains at large today and the LRA continues to abduct children.
Whether the prosecution of Dominic Ongwen could factor in the establishment of positive peace in the region is unknown, however it is improbable that the law can play a constructivist role in rebuilding this particular rural society, where the legal response takes the form of an international criminal trial of a former child soldier, who many in the community consider to be a victim due to the fact of his abduction at a young age.
According to the facts of the case, Dominic Ongwen was approximately nine years old when he was abducted by the Lord’s Resistance Army (LRA), as he walked to school. After a period of induction during which time he was tortured, enslaved and trained to fight, he was initiated into the group and afterwards rose through the ranks, eventually becoming a commander of the Sinia Brigade. His rapid ascension was due to the fact that he was an efficient killer, a loyal fighter, and because he survived when his superiors did not. These promotions guaranteed him material advantages and personal security, while simultaneously diminishing the likelihood that he would ever return home. The LRA employed a mixture of cruelty and brainwashing to break down their abductees, at once subjecting them to slave labour, beatings and threats, while instilling their political ideology and convincing them that they were fighting, with their allies, to overthrow the Government and to improve the lives of the Acholi people.
Loyalty, Michael Wessells asserts, was used by the LRA as an incentive for rewards that would be received once the fighting was over. Kony was exceptionally skilled in his employment of tactics when breaking down the children, also drawing on the strong belief in the world of spirits that is inherent to the Acholi culture. For child abductees often, “the sense of survival does not necessarily dissipate and that dependence on the organisation never abates even when a commander moves up the ranks.”
Much later on, in 2007 Kony would order the murder of Vincent Otti, his second in command and Ongwen’s former teacher, or lapwony. Ongwen would not defect until 2015, when he surrendered to US forces in the Central African Republic (CAR) and was then taken into the custody of the ICC in The Hague.
Fatou Bensouda, in her opening statement as Chief Prosecutor, stated that the purpose of the Ongwen trial is to establish the ‘whole truth’ in relation to the crimes of which he stands accused. The binary nature of international criminal law cannot, however accommodate the nuances intrinsic to establishing the whole truth in this case. Ongwen is regarded by many to occupy a grey area in law by virtue of the fact of his abduction and initiation at a young age however, the need for the prosecution to establish his guilt as a perpetrator must mean that his more ambiguous status as a victim-perpetrator is thereby voided.
Erin Baines, who co-founded the Justice and Reconciliation Project (JRP) said that; “In Ongwen’s case, the morally superior concept of ‘child soldier as a victim’ collapses. But so too does the personification of evil into the image of a perpetrator.”
In a JRP Report it was noted that a failure by international legal interventions to formally address the truth and reality of the complex political victim in a post-conflict situation, and the consequent denial of their access to justice, may fuel the social exclusion and construction of “the other” which is the initial step in the creation of a dehumanised subgroup, and may lead back to violence. Neither the ICC, nor the government amnesty in Uganda make provision for such individuals, treating victims and perpetrators as “homogenous groups” and distinct from one another.
With this in mind, Baines expanded on Erica Bouris’ theory of victim agency when she wrote about Ongwen a year later, introducing the concept of a “complex political perpetrator” as someone who is forced to act within the parameters of an extremely violent rebel group, where they have grown up in such extreme devastation that their everyday life and surroundings are in a state of “chronic crisis.”
The exoneration of Dominic Ongwen is not however countenanced by the JRP, nor anywhere here. However, I concur with the observation that was made by them upon his indictment by the ICC, that in issuing the warrant for his arrest as one of the architects responsible for orchestrating the LRAs operations, the ICC cannot simply gloss over the fact that he was “[…] once a child who was unprotected, abducted, indoctrinated, brutalized and forced to commit heinous acts.” The temporal jurisdiction, limited as it is to crimes committed after 2002 probably means that, “[T]he culpability of Ongwen in the wider context of mass, collective victimisation of children in northern Uganda was likely not factored into the decision to issue warrants for his arrest.”
It is now for the Trial Chamber IX to decide whether Ongwen is guilty of his alleged crimes and whether he acted by his own volition as an adult, or whether he was subjected to such deeply entrenched duress, that as his defence team asserts, his “so-called rank was demonstrative of one thing: that he was surviving better than others while under duress.”