The Lord’s Resistance Army is an armed rebel group led by Joseph Kony. Organized in about 1987, it initially fought the Ugandan government in northern Uganda, with incursions into South Sudan.
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 then-southern Sudan, the Democratic Republic of Congo, and the Central African Republic. Human Rights Watch documented the killings of more than 2,600 civilians and abductions of over 4,000 others by the LRA in northeastern Congo, Central African Republic, and South Sudan between 2008 and 2012. More than 400,000 people were displaced from their homes in this region because of LRA attacks.
Throughout its history, the LRA has been responsible for numerous atrocities, including massacres, summary executions, torture, rape, pillage, and forced labor. The LRA’s brutality against children has been particularly horrific. The group has replenished its ranks by abducting children, forcibly training and using children in combat operations, using girls as sex slaves, and compelling compliance through threats, violence, and mind control.
While the group has become weaker in recent years, LRA fighters continue to conduct smaller-scale attacks in northeastern Congo and the Central African Republic.
Ongwen is from northern Uganda. His family indicates that he was born in 1980, and that the Lord’s Resistance Army abducted him on his way to school in 1990, at about age 10. Senior LRA leaders gave him military training and he eventually became known as one of the LRA’s more ruthless commanders.
After LRA forces left northern Uganda in 2005 and 2006, troops under Ongwen’s command repeatedly terrorized communities in Congo’s Haut Uele and Bas Uele districts. His troops were responsible for some of the LRA’s most vicious attacks in the following years, including the Makombo massacre in 2009, one of the worst during the LRA’s long, brutal history. Troops under Ongwen’s command killed at least 345 civilians and abducted another 250, including at least 80 children, during a four-day rampage in the Makombo area of northeastern Congo.
In December 2003, Uganda referred the situation of the Lord’s Resistance Army to the ICC. In July 2004, the ICC prosecutor announced that the ICC was opening an investigation into the situation in northern Uganda. In July 2005, the ICC issued sealed arrest warrants for war crimes and crimes against humanity for the LRA’s top five leaders at that time: Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen. The warrants were unsealed in October 2005. Lukwiya was killed in 2006 and Otti in late 2007. Odhiambo’s body was found in the Central African Republic in early 2015. Kony remains at large, and his fighters remain a serious threat to civilians in the border region between the Central African Republic, South Sudan, and northeastern Congo.
The ICC initially charged Ongwen with criminal responsibility for crimes committed in northern Uganda in 2004 at the camp for internally displaced persons at Lukodi – three counts of crimes against humanity and four counts of war crimes.
In September 2015, the prosecutor gave notice of additional charges. These include murder, torture, enslavement, and pillage as part of attacks on four camps for internally displaced persons: Pajule, Odek, and Abok, in addition to Lukodi. Added charges also include sexual and gender-based crimes, and conscription and use of child soldiers in northern Uganda from July 2002 through 2005.
A confirmation of charges proceeding in Ongwen’s case was held from January 21 to 27, 2016. The prosecutor was required to present sufficient evidence to establish substantial grounds that the defendant committed the crimes for the charges to be confirmed and the case to proceed to trial. On March 23, the ICC’s Pre-Trial Chamber II confirmed the charges against Ongwen.
Under international fair trial standards such as those found in the International Covenant on Civil and Political Rights and the ICC’s Rome Statute, Ongwen is entitled to:
- have information about the charges against him in a language he understands;
- a presumption of innocence;
- adequate time and facilities to prepare a defense;
- not be compelled to testify against himself or to confess guilt;
- have a lawyer of his own choosing; and
- be protected from torture and cruel, inhuman, or degrading treatment or punishment.
More than 4,100 victims are recognized as “participants” in Ongwen’s case at the ICC. Victim participation is a unique feature of the ICC among international courts, allowing victims to express views and concerns separately from any role as witnesses. Victim participation is one way to enhance the ICC’s resonance in affected communities. Two teams of lawyers represent the victim participants.
- How will local communities affected by the crimes in northern Uganda receive information about the opening of the trial?
Outreach in the affected communities is important to maximize the court’s impact locally.
For the opening of the Ongwen trial, the ICC is organizing viewing sites in the four areas that are the focus of the charges against Ongwen: Pajule, Odek, Abok, and Lukodi, in addition to Gulu and Coorom, the area near where Ongwen is from. With support from the Danish government, the ICC also will bring 10 community leaders to The Hague for the opening. In addition, the ICC is publishing question and answer documents in local media and is broadcasting videos about the trial on national television in Uganda.
In situ proceedings can also help make the ICC’s work more accessible to the communities affected by the crimes. The court considered holding Ongwen’s confirmation of charges hearing and the opening of the trial in Uganda. However, the ICC judges ultimately determined that the possible security risks and other costs outweighed the possible benefits.
Ongwen is believed to be the only former child abductee to face charges before the ICC. During its history, the LRA abducted at least 30,000 children into its ranks, in large part because they are easier to manipulate than adults. Through mind-control methods that instill fear, and sheer brutality, the LRA has initiated children into the group and forced them to undergo what they call “military training.” Children were often forced to kill adults or other children who failed to obey the LRA’s strict rules or who tried to escape.
The ICC’s Rome Statute does not provide jurisdiction over crimes committed by someone under 18, but Ongwen can be tried for the crimes he committed as an adult. His status as a child abductee may be relevant to his legal defense, and his defense team has indicated they intend to raise duress as an affirmative defense to exclude his culpability for the alleged charges. His status as a child abductee also could be a mitigating factor in sentencing in the event of conviction.
On November 23, Child Soldiers International, a nongovernmental organization, submitted a request to file an amicus curiae brief in the Ongwen case detailing why status as a former child soldier may be more relevant to sentencing than culpability, but also circumstances under which status as a former child soldier may have bearing on criminal responsibility. The judges have yet to rule on the application.
The ICC is a court of last resort. Under the Rome Statute, the ICC only prosecutes cases when national courts are unable or unwilling to prosecute. Once a case has been taken up by the ICC, as in the Ongwen case, it would only revert to national courts on the basis of what is known as an admissibility challenge, in which a country can show that it is investigating and prosecuting him for the same crimes.
In 2011, Uganda officially established an International Crimes Division 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 fulfill its potential as a meaningful forum to ensure accountability.
The only case related to the conflict in northern Uganda brought before the International Crimes Division is against Thomas Kwoyelo, a former LRA fighter captured in Congo in March 2009, who is charged with war crimes. Kwoyelo’s trial was stopped after Uganda’s Constitutional Court concluded that he had been treated unequally under the country’s Amnesty Act (see below). In April 2015, Uganda’s Supreme Court overruled the earlier decision and ordered the trial to move forward. The International Crimes Division has rescheduled the start of the trial several times and it is expected to begin in the coming months.
The ICC has indicated that the trial may last several years given the complexity of the case and to ensure that Ongwen benefits from the full range of rights of the accused. The prosecution intends to call more than 70 witnesses. These include experts on subjects such as child soldiering and sexual violence, victims including former abductees, and people with inside knowledge of the LRA. It is not yet known the number of witnesses the defense may call.
In the event of conviction, imprisonment for up to 30 years, or life in prison may be imposed. The death penalty is not an available punishment before the ICC.
In 2000, the Ugandan government enacted an amnesty for Ugandan citizens, including LRA fighters, involved in an armed rebellion if they renounced their involvement. As of 2012, more than 12,906 people affiliated with the LRA had been granted amnesty, including a number of former high-ranking LRA commanders. Amnesty for war crimes and crimes against humanity violates international law, which rejects immunity from prosecution for the gravest crimes.
Kwoyelo is the only former LRA fighter in prison in Uganda facing charges for LRA activity. A senior commander of the LRA, Ceasar Achellam, has been in Ugandan military custody since May 2012, and his legal status remains unclear. International law requires promptly charging or releasing a person held for a criminal offense. A domestic warrant for his arrest for war crimes has been pending in Uganda since November 2013, but has never been acted on.
The Ugandan army has said that Ugandan soldiers who committed abuses during the conflict have been prosecuted and convicted, though it has been unwilling to provide details of such cases.
Human Rights Watch has documented abuses by the Ugandan armed forces over the course of its 25-year armed conflict with the LRA, including torture, rape, arbitrary detention, unlawful killings, and forced displacement of its citizens into camps with no protection and minimal humanitarian assistance. These crimes have very rarely been prosecuted. Human Rights Watch is aware of some instances in which soldiers were executed for crimes against civilians during the LRA conflict, following a guilty verdict in a summary court martial proceeding. Defendants had no right to appeal, and Uganda’s Constitutional Court has ruled such executions unconstitutional. Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty.
At least some former LRA fighters, including some senior commanders, have been integrated into the Ugandan military and are actively deployed in the counter-LRA effort, without any investigation into crimes they may have committed during their time in the LRA.
No charges are pending by the ICC or any domestic jurisdiction against Ongwen or other LRA leaders for alleged crimes outside of Uganda. The ICC prosecutor should consider adding charges related to serious crimes in other countries where the ICC has jurisdiction, such as the Democratic Republic of Congo. Domestic authorities could also pursue these cases in the countries where the alleged crimes occurred. More discussion of these issues is available at: http://www.hrw.org/sites/default/files/reports/drc0310webwcover_0.pdf.
Uganda is a state party to the ICC’s Rome Statute and was the first country to request an ICC investigation. The ICC has worked in Uganda for many years, carrying out investigations and holding outreach meetings with victims’ groups.
Since 2009, when the ICC issued an arrest warrant for President Omar al-Bashir of Sudan for crimes in Darfur, the court has faced hostility from some African leaders. This backlash increased in 2013 when Uhuru Kenyatta and William Ruto, both accused by the ICC of crimes committed during Kenya’s 2007-2008 post-election violence, were elected president and deputy president of Kenya. The case against Kenyatta was dropped in December 2014 and the case against Ruto was dropped in April 2016.
President Yoweri Museveni of Uganda has supported criticism of the ICC and suggested pushing for withdrawal by African countries from the ICC, but also has indicated Uganda will cooperate with the ICC on Ongwen’s case. In May, the Ugandan government welcomed al-Bashir without arrest to attend Museveni’s inauguration. Al-Bashir is an international fugitive as he is subject to two arrest warrants by the ICC on charges of genocide, war crimes, and crimes against humanity committed in Darfur. In July, the ICC judges issued a finding of non-cooperation by Uganda in his arrest.
Following announced withdrawals from the ICC by South Africa, Burundi, and Gambia in October and November, the government of Uganda, during the meeting of ICC members from November 16 to 24 in The Hague, reaffirmed its commitment to cooperate with the ICC.
Since it began operations in 2003, the ICC’s investigations have concerned eight African countries. However, in five countries where the ICC is conducting investigations – Central African Republic, Côte d’Ivoire, Democratic Republic of Congo, Uganda, and Mali – the investigations arose through a request or a grant of jurisdiction by the concerned governments. In two other countries – Sudan for Darfur, and Libya – the ICC prosecutor acted following a UN Security Council referral. For Kenya, the ICC Office of the Prosecutor received the authorization of an ICC pre-trial chamber to open an investigation.
While the ICC is not targeting Africans, international justice has been applied unevenly. Powerful countries and their allies have been able to evade the reach of justice when serious crimes are committed on their territories. This is due at least partly to the role of the UN Security Council in determining which situations to refer to the ICC when serious crimes are committed in countries that are not ICC members, and to the fact that some countries have not joined the ICC. Human Rights Watch campaigns for justice wherever serious crimes are committed and for justice to advance irrespective of political considerations. Independent organizations across Africa have called for African leaders to work to support the ICC, and not to undermine it.
In January 2016, the ICC prosecutor opened its first investigation outside Africa, into crimes committed in Georgia. The ICC also is conducting preliminary examinations in multiple situations outside Africa, including Palestine, Colombia, UK forces deployed in Iraq, and Afghanistan.