Sarah Kihika Kasande joins JiC for this post on the need for justice for atrocities committed by Ugandan military forces in Northern Uganda. Sarah is a human rights lawyer and the Head of Office of the International Center for Transitional Justice in Uganda. The post is part of JiC’s ongoing symposium on the life and trials of Dominic Ongwen. For all of the other contributions, see here.
Dominic Ongwen’s conviction will provide a measure of justice to victims, but questions about atrocities committed by the Ugandan People’s Defence Forces (UPDF) remain unresolved.
The Good Justice
On February 4, 2021, the Trial Chamber of the International Criminal Court (ICC) convicted Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA), of 61 counts of War Crimes and Crimes Against Humanity including, murder, attempted murder, torture, enslavement, outrages upon personal dignity, pillaging, destruction of property and persecution; committed in the context of the attacks on the IDP camps of Pajule, Odek, Abok, and Lukodi.
Ongwen was also found guilty of all 19 counts of sexual violence, including forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity. It is the first time that the court has convicted an accused person for the crime of forced pregnancy. The judgment further advances jurisprudence on accountability for sexual offenses. Sexual violence was a defining feature of the conflict between the LRA and Uganda’s government. It is therefore significant that Ongwen has been convicted of the highest number of counts of sexual violence preferred against an accused person at the ICC. Dominic Ongwen was also found guilty of the crime of conscripting children under the age of 15 into the Siniya brigade and using them to participate actively in hostilities.
Ongwen’s verdict was delivered nearly 16 years after the ICC unsealed warrants of arrest against the top LRA commanders. It is the first time that a perpetrator from the situation of Northern Uganda has been convicted. The judgment paves the way for the victims who have waited for almost two decades to obtain a measure of justice and reparations. Unfortunately, many of the victims did not live long enough to witness the historic judgment due to the delay. Some of them succumbed to the injuries that they sustained during the war. This underscores the importance of speedy justice.
For the first time in the court’s history, ICC Judge Bertram Schmitt thoughtfully read out the names of the known victims of the crimes committed during the attacks on the four IDP camps. By naming the victims of these crimes, the trial chamber beyond establishing whether the prosecution had met the burden of proof required for Ongwen’s conviction to centering victims and their suffering.
The Mixed Justice
Ongwen is no ordinary convict. He was robbed of his childhood following his abduction by the LRA at the age of nine as he was on his way to school and forcibly conscripted into the LRA as a child soldier. He rose through the ranks to become a commander of the Siniya brigade, one of the 3 LRA brigades. Some individuals believe Ongwen is a victim of the government’s failure to protect the people of northern Uganda. David Ojok, a resident of Coorom, Ongwen’s village said:
I blame the government for his abduction because they (government) failed to protect him. If the government had protected him, Kony would not have had the opportunity to abduct him and train him.
Whereas many do not deny that he committed horrific crimes, they think that Ongwen should have been pardoned and subjected to Mato Oput, an Acholi Traditional Justice Mechanism that focuses on the confession of wrongdoing, seeking forgiveness, reconciliation, and reparation.
However, for the victims of Ongwen’s atrocities, the long-awaited verdict recognizes their suffering and the impact of the LRA’s crimes on the war-affected communities.
The Missing Justice
One commonly held view by victims and war-affected communities in Northern Uganda is that Uganda’s government did not do enough to protect them from LRA attacks and atrocities. In the Judgement, the trial chamber acknowledged the persistent failure by the UPDF to protect civilians living in Internally Displaced Peoples camps from attacks. In all the attacks against the IDP camps at Abok, Lukodi, Odek, and Pajule, UPDF soldiers fled, leaving civilians defenseless. The Chamber noted that the protection provided by the UPDF was” insufficient and illusory in many cases.” This finding vindicates calls for an independent inquiry into the failure by the UPDF to protect displaced populations in Northern Uganda.
Ongwen’s conviction is bound to revive discussions about accountability for UPDF crimes in Northern Uganda. Members of the war-affected communities ask, why is it only the LRA and not the UPDF soldiers being held accountable?
UPDF atrocities against civilians have been documented extensively. These include the Namokora Massacre, where government soldiers killed 35 civilians; the Burcoro massacre where the 22nd battalion of the UPDF tortured, killed, and raped civilians; and the Mukura Massacre, in which the UPDF soldiers locked 300 civilians in a train wagon and suffocated 69 of them to death.
During the counter-insurgency operations against the LRA, code-named Operation North, the UPDF committed numerous atrocities against the civilian populations; these include willful killing, rape, torture, forced displacement, and arbitrary detention. Some of these atrocities fell outside the ICC’s temporal jurisdiction, thus leaving the government with the sole responsibility to investigate and prosecute the perpetrators in domestic courts, which has not happened to date. The ICC has repeatedly stated that the UPDF soldiers’ crimes that fall within its temporal jurisdiction were not of sufficient gravity to warrant its intervention. Victims and war-affected populations that witnessed the crimes committed by the UPDF with brazen impunity find this conclusion difficult to accept.
The Necessary Justice
The 2020 Report on Preliminary Examination Activities issued by the Office of the Prosecutor assessed the alleged crimes committed by the UPDF in Kasese in November 2016 following the bombing of the Rwenzurur Royal Palace, which resulted in the death of over 150 civilians. The ICC once again had an opportunity to investigate the conduct of the UPDF troops. In the report, the Prosecutor notes that the UPDF had used indiscriminate and disproportionate force, which resulted in the killing of civilians, including women and children. However, the Prosecutor concluded that these crimes did not amount to crimes against humanity or other crimes under the Statute because she was unable to determine that the said crimes were committed in furtherance of a State or organizational policy.
This conclusion is confounding because the UPDF is a professional army with a clear command structure. The top leadership of the UPDF endorsed the decision to bomb the Palace. Peter Elwelu, who commanded the attack, was subsequently promoted, an apparent reward for his actions in Kasese. The failure to pursue charges against UPDF soldiers that have committed crimes within the ICC’s jurisdiction has compromised perceptions of the ICC’s commitment to hold all perpetrators of serious crimes, including State actors, accountable.
The lack of accountability for government troops’ crimes is a cause of great concern for the Ugandans and, more so, victims of UPDF crimes who include those tortured for suspected affiliation to the rebels and survivors of sexual violence in IDP camps. These victims live in the shadows for fear of reprisal or persecution.
This consistent lack of accountability has fueled the impunity of Uganda’s security forces , as witnessed in the recently concluded elections. On 16 January 2021, Museveni, who has been in power for 35 years, was declared the winner of a disputed election characterized by unprecedented state violence against opposition candidates and civilians, extra-judicial killings, torture, arbitrary detention, and abduction of hundreds of supporters of opposition candidate Robert Kyagulanyi. On 18 and 19 November 2020, security forces killed over 50 protestors and bystanders during protests against the arrest of Robert Kyagulanyi. Calls for an independent investigation and the prosecution of those responsible have been ignored.
Ongwen’s conviction is a critical milestone in delivering redress to the victims of his crimes. The judgment will provide useful lessons for domestic accountability efforts at the International Crimes Division of Uganda. However, meaningful justice requires accountability for crimes committed by both UPDF and the LRA. Uganda will not end cycles of violence and gross human rights abuses if accountability processes are one-sided.