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Uganda: Accountability and Child Soldiers
AfricaFocus Bulletin
May 5, 2016 (160505)
(Reposted from sources cited below)
Editor's Note
"After two decades spent fighting in the bush, Dominic Ongwen, a
senior commander in the notorious Lord's Resistance Army (LRA),
faces trial at the International Criminal Court (ICC) on seventy
counts of war crimes and crimes against humanity. ... the first time
that a former child soldier will be prosecuted at the ICC and the
first time that an accused faces charges for the same crimes
perpetrated against him. As such, the Ongwen trial raises myriad
questions and poses difficult dilemmas regarding the prosecution of
child soldiers." - Justice in Conflict symposium
The demands of justice, accountability, and healing after any
conflict are all imperative. But satisfying any of these demands,
much less all three, is far from easy, particularly in the case of
child soldiers. The role of the International Criminal Court is
controversial in many ways. But the issues raised in this symposium
would remain difficult, regardless of whether the decisions were being made
by any other international or national court, governmental body, or truth
commission.
This AfricaFocus Bulletin contains the introduction and excerpts
from three of the commentaries in an on-line symposium on the
Dominic Ongwen Trial and the Prosecution of Child Soldiers.
Commentaries included are by Ledio Cakaj, Rosebell Kagumire, and
Mark A. Drumbl. Additional commentaries in the symposium are
available at http://tinyurl.com/havs44v
For additional background, analysis, and sources on the Lord's
Resistance Army and the conflict in Northern Uganda, widely
publicized in the "Kony 2012" on-line campaign, see in particular:
http://www.africafocus.org/docs12/kon1203a.php and
http://www.africafocus.org/docs12/kon1203b.php
For other previous AfricaFocus Bulletins on Uganda, visit
http://www.africafocus.org/country/uganda.php
++++++++++++++++++++++end editor's note+++++++++++++++++
The Dominic Ongwen Trial and the Prosecution of Child Soldiers - A
Justice in Conflict Symposium
by Mark Kersten
Justice in Conflict, April 11, 2016
http://justiceinconflict.org - Direct URL:
http://tinyurl.com/havs44v
After two decades spent fighting in the bush, Dominic Ongwen, a
senior commander in the notorious Lord's Resistance Army (LRA),
faces trial at the International Criminal Court (ICC) on seventy
counts of war crimes and crimes against humanity. In early 2015,
Ongwen was surrendered to the ICC via another rebel army, the Séléka
rebel coalition and US forces 'hunting' for LRA combatants in the
Central African Republic. To date, Ongwen is the only alleged
perpetrator from northern Uganda to find himself facing judges at
the ICC. Ongwen's trial is momentous for many reasons. It marks the
first time that a former child soldier will be prosecuted at the ICC
and the first time that an accused faces charges for the same crimes
perpetrated against him. As such, the Ongwen trial raises myriad
questions and poses difficult dilemmas regarding the prosecution of
child soldiers.
To examine these issues, Justice in Conflict is honoured to host an
online symposium on The Dominic Ongwen Trial and the Prosecution of
Child Soldiers. ...
Symposium contributions include:
The Life and Times of Dominic Ongwen, Child Soldier and LRA
Commander, by Ledio Cakaj
Rupturing Official Histories in the Trial of Dominic Ongwen, by Adam
Branch
The Ongwen Trial and the Struggle for Justice in Northern Uganda, by
Rosebell Kagumire
What Counts against Ongwen - Effectiveness at the Price of
Efficiency?, by Danya Chaikel
There is Nothing Extraordinary about the Prosecution of Dominic
Ongwen, by Alex Whiting
We Need to Talk About Ongwen: The Plight of Victim-Perpetrators at
the ICC, by Barrie Sander
Shifting Narratives: Ongwen and Lubanga on the Effects of Child
Soldiering, by Mark A. Drumbl
Press Release: Prosecutor of the International Criminal Court Speaks
on the Trial of Dominic Ongwen, by Mark Kersten
The Life and Times of Dominic Ongwen, Child Soldier and LRA
Commander
by Ledio Cakaj
April 12, 2016
[Ledio Cakaj is a researcher working on conflict in East and Central
Africa. His book, When the Walking Defeats You; One Man's Journey as
Joseph Kony's Bodyguard, will be published in November 2016 by Zed
Books.]
It must be strange being in Dominic Ongwen's shoes. Suited up in a
large room in a foreign country with fancy lawyers and judges
staring him down, accusing him of unspeakable crimes. No wonder he
seems amused, bewildered and confused. The legal proceedings must be
particularly outlandish to a man, who, snatched from his family as a
child, tried to excel at whatever life threw at him, only for life
to change the script over and over again. And it must be
particularly frustrating for him to be compared to Joseph Kony, a
man whose clutches Ongwen has tried to escape for at least the last
decade.
At ten or so, Ongwen excelled at school and was expected to go far,
become a teacher like his parents, a lawyer or a doctor. When
fighters from the Lord's Resistance Army (LRA) abducted him in the
early 1990s, he was too small to walk long distances or fight, even
though children already fought in the LRA ranks. It was Ongwen's
perseverance and his desire to do well and make the adults proud
that saw him not only survive the hostile environment but also
become a noted fighter. Had the country of its birth provided him
with basic security, he might have become a noted lawyer or perhaps
a doctor.
At fifteen Ongwen was exposed to - and allegedly forced to
participate in - the massacre of over 300 people in the village of
Atiak, masterminded by Vincent Otti, Ongwen's mentor in the LRA.
Under Otti's guidance, Ongwen had to punish civilians who did not
help the LRA, fight Ugandan soldiers, and abduct more youths to fill
the ranks. Refusal brought beatings and death.
While in the first years of his life as a rebel Ongwen might have
acted under duress, he was taught, and likely convinced, that the
LRA's struggle was just. Kony addressed assemblies of LRA members in
true Sunday Mass style saying that the LRA fought for the rights of
the Acholi people, who were abused by the Ugandan army. He swore
that the Holy Spirit had forced him to save the Acholi. Kony was
fond of a line from the Old Testament: "If you are led by the
Spirit, you are not under the law."
Apart from fighting for his people, Ongwen was also told he was
lamony — a soldier. The world that Ongwen-the-soldier inhabited was
different to the one Ongwen-the-child left behind. Being alive was
contingent on killing others. To take their food, clothes, or their
ability to shoot back. Survival chances increased with promotion
into officer ranks as low-level fighters were the first to die from
bullets or pervasive shortages of food. Ongwen obeyed orders, fought
hard, and excelled in the way of the rebels. By his late teens he
was a commander with bodyguards, 'wives' and young servants.
Ongwen was good at fighting and killing. But he never was a top
commander, certainly not on par with those who had joined Kony from
the start, like Kenneth Banya, Vincent Otti or Okot Odhiambo. Sadly,
there were many others like Ongwen in the LRA, young men abducted as
children who were eager to please the Lapwony Madit (Big Teacher)
Kony. Many of them like, Ochan Bunia, Vincent 'Binany,' or Otim
'Ferry,' have died fighting for Kony. Others, like Patrick Agweng or
Jon Bosco Kibwola were killed on Kony's orders, mostly as sacrifices
to appease his ego. Of the surviving ones, Okot George 'Odek,' who
left the LRA in February 2016, told me, he worried he would be
charged by the 'World Court (a reference to the International
Criminal Court (ICC)),' like Ongwen. Similarly, Opiyo Sam, another
LRA commander who returned to Uganda two years ago, claimed he does
not know or understand why Ongwen was singled out by the ICC.
Growing older made Ongwen wiser to Kony's ways, which in turn made
him lose his commander status and its associated benefits handed out
by Kony as he saw fit. Ongwen became openly critical with Kony and
was demoted. In his mid-20s Ongwen seemed interested in leaving the
LRA but he was too scared to do so, feeling trapped. He was
terrified of the bad spirits he had unleashed and worried that they
would haunt him if he left the rebels - and the protection of the
Holy Spirit - to become a civilian once again. He was also concerned
with being thrown in prison or being killed by the Ugandan
authorities - a common fear for many LRA members.
Ongwen tried more than once to find a way out of the LRA, discussing
defection with local clergy, fellow fighters and his 'wives.' In
early 2006 as he contemplated surrender once more, Otti called from
Congo's Garamba Park. The LRA leaders prepared for peace talks -the
Juba Talks - and Kony wanted to show full strength. He wanted all
the fighters to assemble in Congo but openly suspected Ongwen, who
led one of the last remaining small groups in Northern Uganda, of
wanting to quit. Otti said that a new World Court - a reference to
the ICC - wanted to capture and kill Ongwen but that the peace talks
offered a way out. Ongwen agreed, reluctantly leaving Uganda in
August 2006, the last LRA commander to make it to Congo.
As the peace talks stalled, Ongwen became reportedly depressed and
resorted to alcohol, particularly after Kony allowed its consumption
in the spring of 2007. In November 2007 Kony had Otti killed,
effectively ending the peace process and any possibility of making
the ICC arrest warrants go away, as Otti had promised Ongwen.
At the end of 2008, after the Ugandan army launched Operation
Lightning Thunder against LRA bases in Garamba Park, LRA groups
carried out retaliatory attacks against Congolese civilians, leaving
more than a thousand dead in a few weeks. Ongwen was reportedly in
charge of a group that attacked Doruma, killing many as they
celebrated Christmas. Throughout 2009 and until 2014, he operated in
northeastern Congo, often following river Duru into South Sudan
where his troops attacked civilians, mostly to secure food. He
continued to lead his own group, often refusing to liaise with
Kony's messengers or respond to Kony's radio messages. Kony remained
suspicious and critical of Ongwen. On three different occasions, he
threatened to have Ongwen killed, including in October 2007 when
Ongwen was the only commander to protest Otti's execution.
In late 2014, a Kony bodyguard stumbled upon Ongwen's group -at that
point acting independently of Kony - near the Congo - Central
African Republic (CAR) border. Ongwen was somehow convinced to join
Kony in Kafia Kingi, a Sudanese Army controlled area in Southern
Darfur, where Kony had him tortured and put under house arrest. As
in previous instances, Kony said he did not want to kill him because
his sister, also abducted at a young age, was one of Kony's favorite
wives. With the help of a fighter who was supposed to guard him,
Ongwen managed to escape before Kony could do much worse.
Ongwen reportedly left the LRA camp barefoot and barely clothed and
walked for days towards the CAR border where he was helped by cattle
keepers, who took him to a Seleka group, near the town of Sam
Ouandja, CAR. Not understanding Ongwen's importance, the Seleka
commander reached out, via a local merchant and an NGO worker, to
the American Special Forces in Obo, CAR. A US helicopter was
dispatched to transport Ongwen from Sam Ouandja to Obo where he was
later handed over to the Ugandan army. After a few days in Obo at
the Ugandan army base, Ongwen was flown to Bangui and then to The
Hague.
The Ongwen Trial and the Struggle for Justice in Northern Uganda
by Rosebell Kagumire
April 14, 2016
[Rosebell Kagumire is a Ugandan journalist, communications
specialist, public speaker and award-winning blogger. She has over
10 years experience working at the intersection between media and
rights in crisis, women's rights, peace and security.] For previous
posts in the symposium, click here.
My first trip to northern Uganda was in 2005. I was working at a
newspaper in Kampala and went on an assignment. The air was still
and tense, our hosts warned us not to stay late at the bar in Gulu
town, the biggest town in the province of Acholiland. I had many
interviews, comprising of countless horror stories from children as
young as five on what they had gone through during the war. They
were still 'night commuters' - children would leave their homes in
the rural areas to spend a night in the relative safety of Gulu town
where the army could protect them from being abducted. I was one of
the Ugandans privileged enough not to have any direct experience
with war. My parents weren't. Post-independence Uganda saw many
turbulences and the struggle for power continued. In the vacuum and
absence of national consolidation, resistance and rebel movements
mushroomed.
The Lord's Resistance Army (LRA) were one of the last rebel
movements to emerge and put up the longest rebellion, well known for
their horrendous tactics and the terrible crimes they committed
against the populations of Northern and North Eastern Uganda. The
children I spoke with on that 2005 trip lived in a totally different
world than me, even though we were from the same country. Besides
the LRA's violence, they also witnessed other children, as well as
their siblings, parents and relatives either mutilated or die of
preventable disease in internally displaced peoples camps set up by
the Government of Uganda to 'protect' them. You didn't have to know
international criminal law to know these were crimes against
humanity.
One of the teenage boys I interviewed was Simon. Simon had been
recently released after a few months at a rehabilitation centre. But
it wasn't really rehabilitation, as the sheer volume of children
either rescued or escaped from the LRA was too high for the
available centres to provide adequate psychosocial support.
Simon had passed through one of those centres and so we sat down to
hear his story. As with the heinous acts many children recounted to
me, it was hard not to feel pressure rise in your chest listening to
these stories. Simon was forced to kill his parents with a machete
before he was abducted. The rebels threatened to kill the whole
family if he wouldn't do it. Forcing Simon to kill his parents began
the process of mutating him into a child soldier. Simon spent many
years with the LRA, during which he knew he couldn't return. How
could he come back to a community that knew he had killed his own
parents? And what was home? His siblings, his relatives, could he
ever be forgiven? These were questions that Simon couldn't move
past.
Like many child soldiers, Simon would go on to kill many more people
during his time in the LRA. Finally, after five years in the bush at
the age of 20 he was returned to his surviving relatives in the camp
after a rescue by the Ugandan army in 2005. But the family didn't
want anything to do with him and, in the absence of proper
government run shelters and psychosocial services, Simon still
battled trauma and nightmares when I visited him again in 2008.
Simon's life comes to mind when considering the proceedings against
Dominic Ongwen. Ongwen was abducted by the LRA as a child and rose
through the ranks of the rebel group. When he was surrendered to the
ICC in early 2015, my thought was that any of the children I had
interviewed could have become an Ongwen. If they hadn't been
rescued, some could have gone on with their fear of return replaced
with the power that the gun and rebel hierarchy bring.
We are told that Ongwen's trial is about justice. But what does that
mean for the local communities who have to heal? This includes those
families whose children were abducted just like Ongwen and families
whose children were abducted by Ongwen. The calls for forgiveness
from some victims are not a surprise. Many know their own children
are still struggling to overcome the trauma and cope with the crimes
they were forced to carry out.
While some believe Ongwen's trial will go a long way to holding LRA
accountable and bring some form of justice to victims (evidenced by
the more 2,000 victims who have agreed to support the trial), other
victims have called for local justice measures and reconciliation.
This has precedence, they claim, as top former LRA commanders were
granted amnesty by the Government even though they could easily be
charged with hundreds of counts of war crimes themselves. The
commanders live freely in northern Uganda and many argue that, given
that he was abducted, Ongwen, deserves the same pardon.
On the other hand, the ICC trial will be important for both victims
and the country as a means to understand and confront what really
happened in northern Uganda. Ongwen faces 70 counts of war crimes
and crimes against humanity include murder, persecution, torture,
pillaging, conscription of child soldiers, and sexual and genderbased
crimes, which he allegedly committed between 2003 and 2005 in
the internally displaced camps of Lukodi, Pajule, Abok and Odek in
the north. But in Uganda, while many condemn the LRA and the crimes
committed, missing is the role of government which many in the north
would have wanted to see interrogated — and investigated.
For the people of northern Uganda, the charge of forced marriage
will be of particular significance. The Rome Statute doesn't cover
it as a crime but the prosecutor has charged it as cruel inhuman
treatment. Through the prosecution of forced marriage, the sexual
crimes against many women who were abducted and given as rewards for
men fighting will uniquely bring out the plight of women during this
war. The trial will also have to dig deeper into how one transitions
from victim to perpetrator and how capable one can be, if abducted,
in forming the necessary intent to commit the crimes Ongwen is
charged with. The trial in general will hopefully highlight the
complexity of the 20-plus year war where the lines between victim
and perpetrator are sometimes blurred.
Many also hope that Ongwen's ICC appearance and his possible trial
will move the Government and other actors to finally tend to the
real needs of the communities on the ground who still have no
reparations programs nor reconciliation and truth-seeking processes.
The communities are still in need psycho-social support and it is
largely wanting. If the proceedings against Ongwen at the ICC can
help increase the chances that the people of northern Uganda receive
the attention and services they deserve, it holds out the
possibility of being a success.
Shifting Narratives: Ongwen and Lubanga on the Effects of Child
Soldiering
by Mark A. Drumbl
April 20, 2016
[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law &
Director, Transnational Law Institute, Washington & Lee School of
Law.]
On March 23, 2016, ICC Pre-Trial Chamber (PTC) II issued its
decision confirming charges against Dominic Ongwen. PTC II confirmed
many charges, including for sexual and gender-based crimes. Ongwen
will be tried for some crimes that he had himself endured. These
include the war crime of cruel treatment, conscription and use as a
child soldier, and the crime against humanity of enslavement.
Ongwen was abducted into the Lord's Resistance Army (LRA) at the age
of 9 while walking home from school. He was bullied, brutalized, and
indoctrinated as a child soldier. He rose through the ranks. He
ascended to the upper echelons of power, although these remained
tightly controlled by LRA leader Joseph Kony.
Irrespective of how high he ascended, however, Ongwen's point of
entry remains fixed as a young, kidnapped, orphaned, and abused
child. Ongwen's defense team invoked this point of entry in its
submissions. Defense counsel did so to make two specific legal
points. First, that the ongoing and continuous nature of the crime
of child soldiering means that Ongwen left the LRA - nearly thirty
years later - still as a child soldier and, thereby, that he should
be entitled to the evacuation of individual criminal responsibility
that hortatorily inheres in the international legal regime that
protects child soldiers. Second, the defense team submitted that
coming of age in the LRA amounts to a kind of institutionalized
duress that excludes criminal responsibility under Rome Statute
article 31(1)(d) rather than just mitigating sentence. According to
the defense, Ongwen "lived most of his life under duress (i.e. from
the age of 9.5 years old)" and his "so-called rank was demonstrative
of one thing: that he was surviving better than others while under
duress".
When making both arguments, the Ongwen defense team extensively (yet
unsuccessfully) invoked the findings of Dr. Elisabeth Schauer, a
court-appointed expert whose testimony on the dissociation and
trauma arising out of the child soldiering experience had been
dispositive to the Lubanga case. In Lubanga, child soldiers were the
victims and Lubanga the adult perpetrator; in Ongwen, the accused is
a former child soldier and many of his alleged victims were children
at the time.
PTC II perfunctorily dismissed Ongwen's first argument without
providing any reasons. PTC II also dismissed the second argument,
although not quite as perfunctorily. One judge, moreover, will
append in due course a separate, concurring opinion.
Reasonable minds can disagree as to whether the defense arguments
have merit. The point of my commentary is not to revisit these
arguments. ...
Instead, my point is to emphasize that international criminal law
should proceed in consistent and predictable ways. Here, PTC II
slipped. Its understanding of the agency of actual and former child
soldiers in Ongwen departs from the understanding previously
deployed by the Lubanga Trial and Appeals Chambers, in particular in
the sentencing judgments.
Lubanga cast the linkage between the past as a child soldier and the
present as a former child soldier as linear and continuous. The
child soldiering experience was constructed as ongoing and assured:
it rendered the children as victims damaged for life, with their
reality today as derivative of their previous suffering. Once a
child soldier in fact, always a child soldier in mind, body, and
soul. In Ongwen, however, the linkage between the accused's past as
a child soldier and his present as a former child soldier was seen
as discontinuous and contingent.
In his opening statement in the Lubanga trial, then Chief Prosecutor
Luis Moreno-Ocampo portrayed the former child soldiers as indelibly
wounded and recurrently traumatized.
"They cannot forget the beatings they suffered; they cannot forget
the terror they felt and the terror they inflicted; they cannot
forget the sounds of their machine guns; they cannot forget that
they killed; they cannot forget that they raped and that they were
raped."
The 2012 Lubanga sentencing judgment (confirmed on appeal in
December 2014) had prioritized and excerpted from Dr. Schauer's
expert submissions that the Ongwen defense team sought
unsuccessfully to invoke. Elements of Dr. Schauer's work pertinent
to the Lubanga sentencing analysis include her submissions that
"children of war and child soldiers […] often suffer from
devastating long-term consequences of experienced or witnesses acts
of violence" and that conflict experiences "can hamper children's
healthy development and their ability to function fully even once
the violence has ceased." ...
In Ongwen, however, a different narrative emerges. This narrative
contemplates agency, choice, and action. In response to the
defense's emphasis on Ongwen's entry into the LRA as an abducted
child, PTC II held that "the circumstances of Ongwen's stay in the
LRA […] cannot be said to be beyond his control… [.]" PTC II
concluded that "escapes from the LRA were not rare." It underscored
that Ongwen "could have chosen not to rise in hierarchy and expose
himself to increasingly higher responsibility to implement
policies." It added that the evidence demonstrates that Dominic
Ongwen "shared the ideology of the LRA, including its brutal and
perverted policy with respect to civilians". PTC II noted that
Ongwen could "have avoided raping" forced wives, "or, at the very
least, he could have reduced the brutality of the sexual abuse".
PTC II thereby shied away from the Lubanga narrative of the
pernicious, ongoing effect of being compelled as a child into a
violent armed group and socialized therein. Whereas the defense
sought to link Ongwen's conduct as an adult to his horrid
experiences as a child, PTC II only examined his agency as an adult
- as if he had never been a child, let alone a child in the LRA. In
rejecting the duress submissions in Ongwen, PTC II elides Ongwen's
status as a former child soldier. It's as if he lost that status, or
ceded it. Hence, there is a proper way to be a victim. Victimhood is
contingent, so to speak, even aleatory.
In truth, the Ongwen narrative reflects the diverse experiences of
actual and former child soldiers and the complexities of survival
and social navigation in invidious circumstances. After all,
problematic essentialisms abound in the Lubanga criminal judgments.
That said, in the push to confirm charges against Ongwen, PTC II
invokes language that should perturb child rights activists. The
Ongwen confirmation of charges decision conflicts with a tenet of
post-conflict rehabilitation and reintegration. This tenet
approaches all persons (regardless of age) who had become associated
with armed groups and armed forces while under the age of 18 as
former child soldiers and accords them entitlements and treatment
that hinge upon this status.
The contrast between Ongwen and Lubanga vivifies how narratives of
agency, choice, and constraint may become instrumentalized by judges
to suit the prosecutorial impulse. This contrast additionally
reflects the clumsiness of the criminal law in conceptualizing child
soldiering specifically and, in Ongwen's case, victim-perpetrator
circularity generally.
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with a
particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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