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NAVIGATING ACCOUNTABILITY OF FORMER CHILD SOLDIERS : CASE COMMENT ON THE PROSECUTOR V. DOMINIC ONGWEN (ICC 9)


The case of The Prosecutor v. Dominic Ongwen was decided in the year 2021, involves Dominic Ongwen as the prime accused of 70 counts of war crimes and crimes against humanity. What makes this case pivotal is the dichotomy of the accused narrative as former child soldier and then Brigade commander in the Lord’s Resistance Army. The charges levied correspond to the incidents in Northern Uganda between July 2002 and December 2005, however Lord’s Resistance Army (LRA) which the accused was a part of, had been in operation since 1980. Since the case is heavily rooted in history, the chamber deemed it imperative to look at the historical background of the case which was given by Professor Tim Allen of London School of Economics and Political Science in his capacity as advisor to the Office of Prosecutor and as an expert witness in the case.


HISTORICAL BACKGROUND

In 1986, following a guerrilla campaign against Milton Obote's government and the Uganda National Liberation Army (UNLA), Yoweri Museveni's National Resistance Army (NRA) seized power in Uganda. This marked the establishment of the National Resistance Movement (NRM) government, succeeding the brief presidency of Tito Okello. Regional identity played a pivotal role, with Museveni garnering support from the southwest and central-south regions, reflecting aversion to perceived northern dominance. After Museveni asserted control over Acholi areas, resistance emerged, notably from the Uganda People’s Democratic Army (UPDA), primarily composed of former UNLA soldiers.

Following Museveni's victory, a movement led by Alice Auma, known as the Holy Spirit Movement, gained prominence, blending Christian and local beliefs. Auma who was herself regarded as having spiritual powers, recruited soldiers, campaigned against Museveni's government, and targeted alleged witches and 'bad people.' Subsequently, Joseph Kony, initially rejected by Auma for joining forces, formed the Lord’s Resistance Army (LRA) in 1990. The LRA engaged in guerrilla warfare, terror tactics, and forced recruitment, focusing on opposing the Ugandan government and its collaborators.

In response, the Ugandan government implemented anti-insurgency measures, displacing the population into internally displaced person (IDP) camps. The LRA's hostility towards these camps is central to the charges in the case. With support from Sudan, the LRA grew in strength during the late 1990s. International pressure on Sudan led to the "Iron Fist" incursions from Uganda in 2002, resulting in the destruction of LRA bases but the escape of its leaders. Events following the entry into force of the Rome Statute in July 2002, including LRA units returning to Uganda, led to the referral of the situation to the International Criminal Court (ICC) in December 2003, initiating the present case.


PROCEDURAL HISTORY

On July 8, 2005, Pre-Trial Chamber II issued arrest warrants under Article 58 of the Rome Statute against Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen. The current case, focusing solely on Dominic Ongwen, arose from the Kony et al. case and began on December 6, 2016, following Ongwen's surrender to the ICC by the Central African Republic in January 2015. The trial, severed from the main case in February 2015, featured extensive witness testimonies and a judicial site visit to relevant crime scenes in Uganda. The Prosecution, presenting 116 witnesses, concluded in April 2018, followed by the Defense's case ending in December 2019.


CHARGES AGAINST THE ACCUSED

The charges confirmed by the court can be categorized into three main groups. The first involves four specific attacks on internally displaced person (IDP) camps namely Pajule, Odek, Lukodi, and Abok IDP camps.

The second category comprises charges of sexual and gender-based violence crimes directly perpetrated by Ongwen against seven women between July 1, 2002, and December 31, 2005. These charges include forced marriage, torture, rape, sexual slavery, forced pregnancy, and outrages upon personal dignity.

In the third category, systemic charges involve sexual and gender-based violence and the conscription and use in hostilities of children under the age of fifteen in Northern Uganda. These charges include forced marriage, torture, rape, sexual slavery, enslavement, conscription of children under 15 into an armed group, and using children under 15 to participate actively in hostilities.

In light of above, the accused was charged with four modes of criminal liability as per the Rome Statute of 1998. Under Article 25(3)(a) of the statute attributing ‘individual criminal responsibility’ to the accused, ordering, soliciting or inducing occurrence of the alleged crimes under Article 25(3)(b) of the statute, contributing in any other way towards the commission of the said crime under Article 25(3)(d) of the statute, and lastly in addition to other grounds of criminal responsibility under the statute the accused was charged with responsibility of the crime as military commander since he was the leader of the Lord’s Resistance Army (LRA) under Article 28(a) of the statute.


CLAIMS OF THE PARTIES

The prosecution invoked the doctrine of command responsibility, asserting that Ongwen, as a high-ranking LRA commander, held both authority and accountability for the actions of his subordinates. Rooted in international law, this principle obligates commanding officers to prevent and punish crimes committed by those under their control. The prosecution presented substantial evidence indicating Ongwen's direct involvement and issuance of orders for various criminal acts, supported by witness testimonies and recovered documents from LRA camps. This evidence detailed Ongwen's participation in attacks, abductions, and sexual violence. Moreover, the prosecution argued that Ongwen not only had knowledge of these crimes but also failed to take sufficient measures to prevent or address them under his command.

The defence on the other hand had a twofold argument, first rooted in the identity of the accused as a perpetrator and also the victim of the very crimes he was accused of. Further, the defence in its closing brief also argued that the Confirmation of Charges Decision is flawed, violating the right to notice for charges under Article 25(3)(a) of the Statute. It asserts incomplete and unsubstantiated elements, particularly subjective elements, leading to inadequate notice. The Defence also challenges charges related to conscription and use of child soldiers, claiming they lack specific descriptions. These arguments, however, were previously dismissed in limine for untimeliness. The Defense's complaint about vague references and contextual elements in the charges is similarly dismissed, emphasizing that the charges' validity is unrelated to the depth of the Pre-Trial Chamber's reasoning in the Confirmation of Charges Decision.


VERDICT AND ANALYSIS

After a rigorous trial process entailing the involvement of over four thousand victims and Spanning across over a thousand pages, the trail chamber ix of the international criminal court delivered it’s judgement in accordance with Article 74 of the Rome Statute. On 4 February 2021, the court found the accused Dominic Ongwen guilty of 61 charges out of the cumulative 70 counts he was originally accused of. Further, he was sentenced to 25 years of imprisonment on 6th may 2021, subject to appeal.

In the aftermath of the trial, the judgement hold landmark value due to two primary reasons, firstly because the accused is the first person to be convicted and sentenced for sexual and gender based crimes by an international court/tribunal and thus set a precedent in terms of anonymity, safeguard and justice for the victims who were sexually abused.

Secondly, this case posits a moral complexity because the accused identity as a perpetrator of the war crimes conflates with his identity as the victim of the very crimes he has been accused of committing. Following his abduction and induction into the LRA, Ongwen himself has faced many of the abuses he is being charged of. This case becomes landmark as the court effectively navigates the accountability of a former child soldier who is now a Brigadier general accused of heinous war crimes in Northern Uganda. Further, Professor Tim Allen captures the convolution of the present trial and says that ‘People were being forced into a rhetoric of forgiveness, but truly, they wanted accountability’. This aptly describes the mixed connotations of punishing a person of the crimes he himself has suffered through, on one hand people are pushed towards a feeling of forgiveness now that they know the accused’s past. However this was superseded by a feeling of accountability for heinous crimes, specifically sexual and gender based crimes, and justice and reparations for the victims. This polarization in views occurred because some scholars looked at Ongwen’s actions through the lens of indoctrination and oppression he faced due his circumstances, while the others deemed justice for the victims as paramount. The court took the step to clearly distinguish Ongwen’s past trauma from his actions as a commander and held him fully accountable for the same. This case led to extensive work on the extent of attribution of the doctrine of command responsibility on former child soldiersin the context of coercion and brutality in formative years.Ongwen’s case underscores the perpetual quest of attaining balance between accountability and rehabilitation in cases of former child soldiers who later became commanders.





Author: Paridhi Jain

University and Year: Jindal Global Law School, 2nd Year

Programme: BBA LLB

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