The following post is by Barrie Sander, a Ph.D. Candidate in International Law at the Graduate Institute of International and Development Studies (IHEID). Barrie, currently on exchange at Harvard Law School, focuses his research on historical narratives and conceptions of justice in the international criminal context.
Earlier this week, a Ugandan army spokesman confirmed that Dominic Ongwen, a senior commander in the rebel Lord’s Resistance Army (LRA), was to be transferred by the Central African Republic (CAR) to the International Criminal Court (ICC). The news followed last week’s revelations that Ongwen had been taken into US custody and the call by numerous civil society groups demanding Ongwen’s transfer to The Hague (see, for example, here, here and here).
It has subsequently transpired that Dominic Ongwen has been handed over to Ugandan troops in the CAR. Last week, Mark convincingly argued that in light of Ugandan President Museveni’s negative rhetoric towards the ICC, including recent accusations that the ICC is biased against African leaders, it would seem “virtually impossible” to envisage Uganda surrendering Ongwen to the ICC. Yet, it appears that President Museveni is now prepared to do just that, apparently taking the view that since the LRA has committed atrocities in neighbouring countries, Ongwen should face international justice.
In fact, Museveni’s ‘concession’ to the ICC is more likely to be a calculated political maneuver, rather than a renewed appreciation for the benefits of international justice. There are at least four reasons why Museveni would be well advised politically to surrender Dominic Ongwen to the ICC.
First, by cooperating with the ICC, President Museveni can reinvigorate his image as a champion of international justice. In their article on the subject, Sarah Nouwen and Wouter Werner illustrated how Uganda’s self-referral to the ICC served to portray the Ugandan government as a defender and friend of mankind, whilst transforming the LRA from an enemy of the Ugandan government into an enemy of the international community as a whole. By transferring Dominic Ongwen to the ICC, President Museveni can resurrect some of these images, deferring attention away from atrocities allegedly committed by government forces and ensuring that the ICC remains dependent on its cooperation for the foreseeable future.
Second, President Museveni’s priority will be to ensure that Dominic Ongwen is tried without any prolonged legal squabbles. Museveni will want Ongwen’s trial to serve as a didactic opportunity to illuminate the atrocities committed by the LRA. Although Uganda is entitled to challenge the admissibility of Ongwen’s case at the ICC, the situations in Kenya and Libya have demonstrated that the ICC is prepared to set a relatively high threshold that must be met for such a challenge to be successful. For instance, it would not be sufficient for Uganda to investigate only discrete aspects of the case brought against Ongwen by the ICC Prosecutor; Uganda would have to demonstrate that its case sufficiently mirrors the case brought by the ICC Prosecutor, both in terms of Ongwen’s conduct and the incidents under investigation. In light of these challenges, Museveni may prefer to avoid the prolonged legal battles that have dogged the cases brought in the situations in Kenya and Libya, in favour of ensuring a smooth path to trial at the ICC that better serves his didactic aims.
Third, President Museveni may also fear that any attempt to try Dominic Ongwen in Uganda’s International Crimes Division (ICD) risks galvanizing the same legal and political controversies as the case of Thomas Kwoyelo, the first and only case of an LRA commander to take place before the ICD to date. With Uganda’s Amnesty Act 2000 still in force, and Dominic Ongwen still presumably entitled to apply for an amnesty so as to avoid domestic prosecution, Museveni may prefer to avoid the risk of embarrassment that would befall him were a domestic prosecution to fail.
Finally, it should be remembered that surrendering Ongwen to the ICC does not necessarily mean that his trial cannot take place in Uganda. Pursuant to Article 62 of the ICC Statute, the ICC is entitled to locate its trials anywhere in the world, although The Hague remains its default option. While unprecedented at the ICC, the option of holding international criminal trials “in country” worked well at the Special Court for Sierra Leone and is supported by former ICC Judge Adrian Fulford, who has argued that the ICC should try to sit “in country” where it is economically feasible and the security situation permits. President Museveni could therefore use his renewed cooperation with the ICC to his advantage and lobby for the trial to be located in Uganda. For the ICC, locating the trial in Uganda would have the dual advantage of improving the visibility of the ICC amongst local communities, as well as facilitating more productive victim participation in its proceedings. For Museveni, it would further cement the image of Uganda as a pioneer of international justice.
Whether President Museveni will in fact surrender Dominic Ongwen to the ICC remains to be seen. Nonetheless, such a move is already being depicted by proponents of international criminal justice as a historic victory for the victims of LRA atrocities, as well as confirmation of the continuing relevance of the ICC. Yet, amidst the celebration, we should not lose sight of the fact that the Ugandan government also has much to gain from a trial that will focus on illuminating the atrocities of its enemy largely to the exclusion of atrocities allegedly committed by its own forces.