There is Nothing Extraordinary about the Prosecution of Dominic Ongwen

Posted on April 18, 2016 by Mark Kersten

JiC’s symposium on the trial of Dominic Ongwen and the prosecution of child soldiers continues with this contribution by Alex Whiting. Alex is a Professor of Practice at Harvard Law School where he focuses on international and domestic prosecution issues. He previously worked as a prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia. For a list of the other contributions to the symposium, see here.

Dominic Ongwen during pre-trial proceedings at the International Criminal Court (Photo: ICC)

Dominic Ongwen during pre-trial proceedings at the International Criminal Court (Photo: ICC)

The title of this post is admittedly a little misleading. In one way, of course, the prosecution of anyone by an international court for war crimes and crimes against humanity is an extraordinary, not to mention challenging, event. But in all other respects, the case against Ongwen is straightforward. In particular, the fact that Ongwen was himself abducted into the Lord’s Resistance Army at the age of 12 (the defense alleges it was at age 9.5), and made into a child soldier, before allegedly committing crimes himself against others between the ages of 27 and 30, changes nothing about whether he is legally responsible for those crimes. That Ongwen was a victim before becoming a perpetrator may be ironic and sad. It may be an interesting story. And it may be paradoxical and/or depressing. But it is not a legal defense to the crimes charged against him. At most, it may be a consideration at sentencing if Ongwen is convicted, but even here I have my doubts.

Ongwen is charged with 70 counts of war crimes and crimes against humanity, including murder, attempted murder, torture, rape, forced marriage, sexual slavery, forced pregnancy, persecution, cruel treatment, other inhumane acts, outrages upon personal dignity, enslavement, attacks against the civilian population as such, conscription of children under the age of 15, use of children under the age of 15 in hostilities, pillaging and destruction of property.

Some of these crimes are charged as war crimes, some as crimes against humanity, and some as both. Ongwen is accused of committing certain crimes himself as a direct perpetrator – specifically some of the charges of rape, torture, forced marriage, sexual slavery, enslavement and forced pregnancy – while it is alleged he committed other crimes with or through others.

At the confirmation hearing, Ongwen’s defence argued that, because he was a victim of crimes as an abducted and coerced child soldier, he cannot be convicted of the grave crimes he is alleged to have committed almost a decade after he turned 18, the minimum age of responsibility under the Rome Statute (Article 26). The Pre-Trial Chamber correctly brushed aside these arguments.

First, Ongwen argued that because he did not leave the LRA until 2015, at age 30, he must be considered a “child soldier” until that time, and therefore cannot be prosecuted. In this regard, the defense argued that child soldiers are psychologically broken down, desensitized and dehumanized. That is certainly true as a general matter, and may even be true in Ongwen’s case, but it is simply not a defense to committing crimes oneself.

To the extent that there exist protections for child soldiers in international law and the Rome Statute, they are tied to age and disappear when the individual legally becomes an adult. Further, the Rome Statute does not recognize as a defense that the accused developed a criminal state of mind because of his or her past experiences. Nor should it. It is not uncommon that defendants at international criminal tribunals, or in domestic criminal courts, have themselves been the victims of crime, or have suffered traumatizing experiences in their past.

Ongwen’s story is simply a variation on this common reality because he was apparently the victim of one of the same crimes he is alleged to have committed: the conscription of child soldiers. But even this variation is not that unusual: it is well known that many who commit abuse or violence on others have themselves been the victim of abuse or violence. Unless one’s past experiences rise to the level of duress (addressed in the next paragraph) or result in a mental disease or defect that destroys the accused’s “capacity to appreciate the unlawfulness or nature of his or her conduct,” something Ongwen has not alleged, then the law imposes an undiluted obligation to refrain from committing crimes against others. There is simply no license for the victims of crime to victimize others. Continue reading →

Posted in Child Soldiers, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, Lord's Resistance Army (LRA), northern Uganda, Symposium, Uganda | Tagged | 5 Comments

What Counts against Ongwen – Effectiveness at the Price of Efficiency?

Posted on April 15, 2016 by Mark Kersten

Danya Chaikel joins JiC for this fourth installment in our ongoing symposium on the trial of Dominic Ongwen and the prosecution of child soldiers. Danya is a lawyer and independent legal consultant specialising in international criminal law and human rights. She has worked for organisations such as the International Criminal Court and the International Bar Association. She has also written about the Ongwen case in relation to the Rome Statute’s child Soldier crimes for OSJI, in ‘The ICC’s Child Soldier Provisions: Time to Close the Three-Year Gap‘. For a list of contributions to the symposium, see here.

Dominic Ongwen during proceedings at the International Criminal Court (Photo: ICC)

Dominic Ongwen during proceedings at the International Criminal Court (Photo: ICC)

The trial of Dominic Ongwen, the child soldier turned commander in the Lord’s Resistance Army (LRA), could end up being the longest ever adjudicated before the ICC and threatens to jeopardise Ongwen’s right to be tried without undue delay. An unprecedented 70 counts of war crimes and crimes against humanity and seven modes of liability must be tested at trial. But the vast bundle of charges represents a dramatic turnaround in the OTP’s investigative approach and could make it one of the most effective trials to date for victims. Current efforts by ICC judges to make trials more efficient couldn’t come at a better time.

About those 70 Counts

On 23 March 2016, the ICC Pre-Trial Chamber confirmed 70 counts of war crimes and crimes against humanity against Dominic Ongwen. At first look the Chamber’s robust approval of so many charges seems unusually high and impractical, since it could lead to an even longer protracted trial than usual. It will take the Court years to plough through the enormous volume of evidence (documentary, testimonial, forensic, digital, and so on) which the Prosecution and Defence will need to submit in support of their cases.

The multifaceted charges allegedly took place in Northern Uganda between 2002 and 2005 and can be broken down into six main parts: the first four cover separate gruesome armed attacks of the Pajule, Odek, Lukodi, and Abok internally displaced person camps (counts 1-49); the fifth part describes heinous sexual and gender-based violence (SGBV) crimes directly committed by Ongwen. This includes forced marriage and his rape of girls as young as 10 years old (counts 50-60 which are based on the account of seven women victim witnesses) as well as also SGBV crimes indirectly committed by Ongwen (counts 61-68); and the sixth section includes child soldier crimes (counts 69-70).

To put this in some perspective, Ongwen’s number of counts is strikingly higher than all other ICC cases that have reached the trial stage. In the other nine ICC cases with confirmed charges (excludes Bemba et al), the average number of counts has been only six. The ICC’s first trial, against Thomas Lubanga, involved a mere six confirmed counts (all child soldier crimes) and the trial phase lasted three years. In the Court’s most recent trial to conclude, Jean-Pierre Bemba Gombo faced just five counts (crimes of murder, rape and pillaging) and his trial phase lasted over five years. As yet another comparison, at the ICTY Radovan Karadzic faced 11 counts and his trial phase lasted five and a half years.

It’s easy to assume that Ongwen’s trial will last years on end since the charges cover such an enormous range of crimes including: civilian attacks; murder; attempted murder; rape; sexual slavery; forced pregnancy; forced marriage as an inhumane act; torture; cruel treatment; outrages upon personal dignity; destruction of property; pillaging; the conscription and use of child soldiers; enslavement; persecution; and other inhumane acts. Seven potential alternate modes of liability are also thrown into Ongwen’s charging mix, which is again the most that any ICC accused has every faced: direct perpetration; indirect perpetration; indirect co-perpetration; ordering; aiding or abetting; in any other way contributing to the commission or attempted commission of the crimes; and command responsibility. The judges, parties and participants have an incredibly daunting task ahead of them.

The New OTP Investigative Strategy at Work

Why did the Prosecution decide to bring so many charges against Ongwen in the first place, and why were they largely confirmed? Under the leadership of the previous Prosecutor, Luis Moreno Ocampo, the arrest warrant in 2005 only listed seven counts. The 900% increase in charges requested by Prosecutor Fatou Bensouda 10 years later and within the same year that Ongwen was surrendered to the Court is thus quite extraordinary. In fact, the increase coincides with the OTP’s new investigative strategy, one that has brought on far more robust investigations before the charging phase. The OTP explains in its 2016-2018 Strategic Plan that it had: shifted its policy away from “focused” investigations to “open-ended, in-depth investigations”; asked for and received extra resources for more effective evidence gathering; and aimed to be trial-ready as early as possible and no later than by the confirmation of charges hearing.

This new strategy tackled many serious past deficiencies head on, including: only 63% of the Prosecution’s requested charges being confirmed in the Court’s first 10 years of operation which, according to the OTP, increased to 86% during the period of 2012-2015 due to their revised strategy; the Trial Chamber admonishing  the Prosecution for shoddy investigations in the Court’s first three verdicts (Lubanga, Ngudjolo and Katanga) among other cases; and a narrow charging strategy which didn’t reflect the full range of potential criminality against defendants, such as in the Lubanga case when the Prosecution chose not to bring SGBV charges even though evidence of these crimes peppered the trial proceedings as Prosecution witnesses offered their testimonies. Continue reading →

Posted in Child Soldiers, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Symposium, Uganda | Tagged | 2 Comments

The Ongwen Trial and the Struggle for Justice in Northern Uganda

Posted on April 14, 2016 by Mark Kersten

Rosebell Kagumire joins JiC for the second installation in our ongoing symposium on Dominic Ongwen and the prosecution of child soldiers. Rosebell 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.

Children in northern Uganda in 2006 (Photo: Matthew Smeal / Eureka Street)

Children in northern Uganda in 2006 (Photo: Matthew Smeal / Eureka Street)

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. Continue reading →

Posted in Child Soldiers, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Uganda | Tagged | 31 Comments

Rupturing Official Histories in the Trial of Dominic Ongwen

Posted on April 13, 2016 by Mark Kersten

Continuing our symposium on the trial of Dominic Ongwen and the prosecution of child soldiers, Adam Branch joins JiC for this piece on how the Ongwen trial fits within the dominant narratives of the war. Adam is a Lecturer in the Department of Politics and International Studies at the University of Cambridge. He is author of Displacing Human Rights: War and Intervention in Northern Uganda (Oxford, 2011) and Africa Uprising: Popular Protest and Political Change (Zed, 2015; co-authored with Zachariah Mampilly). From 2011-2014, he was Senior Research Fellow at the Makerere Institute of Social Research in Kampala, Uganda.

Col Michael Kabango of the UPDF stands with Dominic Ongwen shortly after coming into Ugandan custody (Photo: AP)

Col Michael Kabango of the UPDF stands with Dominic Ongwen shortly after coming into Ugandan custody (Photo: AP)

Every international criminal trial is a contest between competing narratives constructed by the prosecution and the defense, between contrasting histories and the moral and political judgments made of the actors in those histories.

The Ongwen trial, of course, has received notoriety because of an inescapable tension that has produced precisely such contrasting narratives: Ongwen’s status as a so-called “victim-perpetrator.” The defense, in an effort to absolve Ongwen of the very possibility of criminal responsibility, has focused on the first part of the dichotomy, while the prosecution, fearful of having the ground swept out from under the trial of anyone who could be cast, even in part, as a victim, has emphasized the second.

Here, I turn to another pair of contrasting narratives espoused by the prosecution and defense: their divergent portrayals of the violence used during the war. These narratives can illuminate unexpected possibilities for justice arising from the trial, I believe, irrespective of what the final decision is concerning Ongwen’s guilt or innocence.

When the ICC first got involved in northern Uganda in the mid-2000s, there was already a firmly established discourse on the conflict. According to this dominant narrative, the LRA was, in a word, ‘‘bizarre,’’ and LRA violence defied understanding. LRA motivations were summed up in the endlessly iterated declaration that the rebels had “no clear political agenda but want the country governed in accordance with the Ten Commandments.” The Ugandan government, for its part, was portrayed as waging a desperate struggle against the LRA in a well-intentioned, though short-handed, effort to protect civilians. And so the government’s violent counterinsurgency was cast unambiguously as humanitarian and rational, the LRA’s violence as inhuman and beyond comprehension.

This narrative of an evil LRA and a good Ugandan government was instrumental to the massive regime of Western intervention into the conflict. It also suited the Ugandan government fine: being a favorite of foreign donors and an enthusiastic participant in the US War on Terror, Uganda used the narrative of a terrorist LRA without a political agenda as an excuse for refusing peace talks, for securing Western support, and for pursuing an endless “military solution” without regard for the civilian consequences. The narrative even allowed the government to forcibly displace the entire civilian population of Acholiland – over a million people – into horrific internment camps, which led to a massive humanitarian crisis. Uganda’s Western donors, instead of denouncing these acts as war crimes, were complicit with them as they managed the camps on behalf of the government.

When the ICC intervened over ten years ago, it made its move on the back of this narrative. The Ugandan government effectively became a partner in the investigation against the LRA instead of being itself a target of investigation for possible crimes. Meanwhile, the LRA was denounced as a “criminal organization” with no political agenda by then Chief Prosecutor Luis Moreno-Ocampo.

At Ongwen’s confirmation of charges hearing in January, however, the Prosecution’s story had changed. The Prosecution had reversed its portrayal of the LRA and now insisted categorically that the LRA always had a clear political agenda, a firm organization and hierarchy, and a strategic rationality to its violence. In the words of prosecutor Benjamin Gumpert, the LRA “aimed to overthrow the government of Yoweri Museveni, the President of Uganda, then as now.” No mention was made, as it had been a decade earlier, of the Ten Commandments or Kony’s spirits. Instead, because the prosecution is seeking to convict Ongwen under the doctrine of command responsibility, because war crimes require a real war and not irrational violence, and because crimes against humanity need to be “part of a widespread or systematic attack,” the prosecution has had to turn the LRA into a regular rebel group with a regular political agenda. Continue reading →

Posted in Child Soldiers, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Symposium, Uganda | Tagged | 6 Comments

The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander

Posted on April 12, 2016 by Mark Kersten

In the first piece for JiC’s symposium on The Dominic Ongwen Trial and the Prosecution of Child Soldiers, Ledio Cakaj joins JiC for this fascinating account of the life of LRA commander and former child soldier, Dominic Ongwen. Ledio 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.

Dominic Ongwen

Dominic Ongwen

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. Continue reading →

Posted in Central African Republic (CAR), Child Soldiers, Democratic Republic of Congo, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, Lord's Resistance Army (LRA), northern Uganda, Symposium, Uganda | Tagged | 3 Comments

The Dominic Ongwen Trial and the Prosecution of Child Soldiers – A JiC Symposium

Posted on April 11, 2016 by Mark Kersten

Ongwen Symposium JiC

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. Contributors will cover the following questions:

Who is Dominic Ongwen?

Should Ongwen’s past as a child soldier inform the proceedings against him at the ICC?

What does it mean to be a child soldier and when does a victim of international crimes emerge as perpetrator?

What does the Ongwen trial say about how we understand the war in northern Uganda and the wider region?

How have the people of northern Uganda reacted and responded to the prosecution of Ongwen?

What is an appropriate prosecution of a former child solider?

What is Ongwen’s defence and on what grounds can and should child soldiers like Ongwen be defended at international tribunals?

Over the next few days, JiC will publish articles from a series of scholars and commentators, including Adam Branch, Ledio Cakaj, Danya Chaikel, Mark Drumbl, Rosebell Kagumire, Barrie Sander, Alex Whiting, and myself.

Our goal is to create an open and honest dialogue within a forum that respects the opinions of all participants. And, as always, we welcome your thoughts and reflections!

Symposium contributions to date 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

 

Posted in Child Soldiers, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, Uganda | Tagged , | 11 Comments

Justice for Post-Election Violence in Kenya – An Obituary

Posted on April 8, 2016 by Mark Kersten

Candles.Burning.in.the.Dark

Champions of international accountability join with the survivors of human rights violations in Kenya to announce the premature death of justice for crimes perpetrated in the aftermath of the 2007 elections. Following the final death throes of the cases at the International Criminal Court (ICC) against William Ruto and Joshua Arap Sang, and in light of political apathy towards accountability for the 2007/08 post-election violence in Kenya, justice for those atrocities has tragically been laid to rest. The cause of death was announced as an insurmountable case of poor planning at the ICC, political apathy among powerful actors in Kenya, and diplomatic indifference amidst the international community.

Justice in Kenya led a tumultuous life. It was inspirational but flawed. It promised an end to impunity for serious violations of human rights in a country that has been riddled by periodic inter-ethnic violence. It brought together formerly conflicting segments of society. Some believe that, while its life-long mission of accountability was foiled, it helped deter political violence during the 2013 elections.

The life of justice in Kenya was cut short. But its time was not without controversy. Significant resources were spent on its achievement and, sadly, much more to frustrate its potential. It inspired debate and its fair share of disagreements. There was always more dissension than agreement among those concerned as to the most appropriate treatment necessary to achieve its mission of accountability for victims and survivors.

Justice in Kenya had many friends and supporters throughout the years, but when its back was against the wall and it became inconvenient to push for accountability, few of the actors on which justice depended, including friendly governments around the world, were willing to back its life goal of accountability for post-election violence. And despite its best efforts, as well as those of civil society match-makers, justice in Kenya regretfully could never find a suitable and committed life partner to fully support its ambitions.

Justice in Kenya’s untimely passing followed years poor health. In 2010, the International Criminal Court intervened in the name of justice in Kenya thus raising expectations that a cure to the scourge of impunity had finally been found. At the time, local authorities made clear that they would not investigate or prosecute those responsible for crimes relating to post-election violence themselves. The relevant actors seemed unified around the ICC treatment. Many, including Ruto himself, exclaimed: “Don’t be vague, go to The Hague!” Continue reading →

Posted in International and Organized Crimes Division of Kenya, International Criminal Court (ICC), International Criminal Justice, Justice, Kenya, Kenya and the ICC | Tagged , , | 4 Comments

A Missed Trial or a Mistrial? The End of the ICC Cases against Ruto and Sang

Posted on April 7, 2016 by Mark Kersten
William Ruto received a string of congratulatory phone calls after the ICC Judges made their ruling (Photo: DPPS)

William Ruto received a string of congratulatory phone calls after the ICC Judges made their ruling (Photo: DPPS)

It’s over. Almost six years after the International Criminal Court (ICC) intervened to investigate those responsible for the 2007-08 post-election violence in Kenya, everyone of the Court’s targets has escaped judgement day. What started out as the “Ocampo Six” — a reference to the ICC’s first chief prosecutor and the six individuals he targeted for crimes against humanity — is now the “Ocampo Zero”. This afternoon, in a much anticipated decision, ICC Judges “terminated” the case of Deputy President William Ruto and his co-accused, journalist Joshua Arap Sang. They join others, most notably Kenyan President Uhuru Kenyatta, in being freed from their trial in The Hague. The ruling brings to an end a gruelling, dramatic, and controversial epoch in the Court’s history. Here are a few thoughts on what the ruling could mean going forward.

Witness Intimidation and Prospects for a Re-Prosecution?

In the opinion of presiding Judge Chile Eboe-Osuji, the case was a mistrial (the first such ruling in the ICC’s history). Eboe-Osuji concluded that a mistrial had to be declared “due to a troubling incidence of witness interference and intolerable political meddling.” This is somewhat of a peculiar view. The defendants got something that they desperately wanted (the end of their trial) but for reasons they couldn’t possibly agree with (that Kenyan operatives intimidated witnesses and interfered with the trial on their behalf). In other words, Eboe-Osuji rather curiously blamed the political forces behind the defendants for a mistrial which ultimately benefits them and sets them free.

But that isn’t the whole story. Sang and Ruto’s defence counsel had actually hoped for something more than a mistrial or termination of the case. They had sought a positive ruling with regards to their no-case-to-answer motion. Had they received that, neither Sang nor Ruto could be re-prosecuted in the future at the ICC. A mistrial, however, permits prosecutors to re-open the case in the future if new — and better — evidence comes to light.

At the moment, it is hard to imagine such a re-trial happening. But it may not be entirely impossible down the road if the Court’s prosecutors manage to prove that there has actually been witness tampering. There are currently three live warrants of arrest that have been issued for Kenyan nationals for what amount to allegations of obstructing justice at the ICC by intimidating and interfering with witnesses. These individuals — Walter Barasa, Paul Gicheru, and Philip Kipkoech Bett — remain in legal limbo as Kenya mulls whether it will surrender them to the ICC. But it is now up to prosecutors to prove these allegations of witness tampering. If they can do that, it could potentially help them (re)build cases and to eventually re-prosecute some of the alleged senior perpetrators of the post-election violence.

No Prospects for Domestic Justice

Make no mistake about it — the Kenya cases at the ICC stopped being about justice a long time ago. The ICC-Kenya debacle is a story about a state and government against an international court and institution. It has been a narrative about a whole bunch of things — politics, colonialism, power, diplomacy, money, reputation, messaging, etc. But it is genuinely difficult to remember a time when it was about achieving justice for the victims of post-election violence. If it had been, the government of Kenya could have simply demonstrated that it was prepared to take accountability — any accountability — for post-election violence seriously. It hasn’t and it likely won’t. Continue reading →

Posted in International and Organized Crimes Division of Kenya, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC | Tagged , , , , , | 4 Comments

Mass Atrocity Monday, 4/4/2016: The Ethiopian Red Terror

Posted on April 4, 2016 by Kate Cronin-Furman
Photo of the Derg leaders, via Wikipedia

Photo of the Derg leaders, via Wikipedia

You’d be forgiven for not knowing that in 1992, Ethiopia’s transitional government established a Special Prosecutor’s Office to investigate and try members of the military junta it had toppled. Or that over the course of 14 years, the Red Terror trials (as they were known) led to the convictions of more than 1,000 individuals, including 55 high-level regime officials. Or that the Derg’s leader, Mengistu Hailemariam, was convicted on genocide charges in absentia and sentenced to death (on appeal) in 2008.

Despite the scale and scope of these trials, Ethiopia barely figures in the transitional justice literature. But it should. Not only is it a rare early (and African!) example of a fully domestic program of prosecutions for international crimes, it highlights many of the challenges of pursuing justice in a society gutted by decades of massive human rights violations and struggling to form functional institutions.

Here are some details:

The Derg seized power in the confusion following the 1974 overthrow of Ethiopia’s monarchy. They quickly launched a program of harsh reprisals against those associated with the imperial regime. Hundreds were arrested and 60 former officials were summarily executed without trial. The deposed Emperor himself was quietly murdered and buried under the floor of his former palace. But there was far worse to come.

In 1977, when the youth committees of the leftist Ethiopian People’s Revolutionary Party (EPRP) organized a protest calling for civilian rule, the Derg cracked down. In the “May Day Massacre” and its immediate aftermath, over a thousand young people were gunned down; many of them left lying in the streets. The regime famously required family members collecting their corpses to pay for the bullets used to kill them.

The May Day Massacre was only the beginning—what one historian describes as “the dress rehearsal” for the bloodshed that followed. The Red Terror began as a systematic attempt to wipe out threats to the regime, and ended in chaos. The agents of the campaign were unfettered in their mandate to liquidate members of the EPRP and its leftist rival Ma’ison. Local-level revolutionary defense squads were given carte blanche to kill anyone suspected of anti-regime sentiments. No one was safe.

The Red Terror’s death toll is still uncertain. It’s clear that by 1980, tens of thousands were dead or disappeared, and countless others were imprisoned. Credible estimates go as high as half a million dead, and experts on the era speak of a “lost generation” of Ethiopians.

The Derg finally collapsed in 1991, overthrown by a coalition of rebel forces called the Ethiopian People’s Revolutionary Democratic Front (EPRDF). The transitional government faced the challenge of reconstituting the Ethiopian state after decades of brutal authoritarian rule and internal conflict.

The decision to institute a program of mass prosecutions was not an obvious one in the early 1990s. The international criminal tribunals were not yet established, and relevant precedents from other domestic jurisdictions were few and far between. (Very few. Argentina, Greece, and Nicaragua had all tried past regime leaders on purely domestic charges, and Bangladesh had legislated, but never created, an International Crimes Tribunal.)

The choice of a criminal justice approach perhaps reflects the need Ethiopia’s new leaders felt to both signal a sharp break with the past and put the Derg firmly beyond the pale. Although the regime had committed massive and systematic atrocities, they were not the only actors guilty of human rights violations over the course of 17 years of competing and overlapping rebellions and counter-insurgencies. Widespread participation in violence and abuses had created resentments that could tear the new political order apart. One of the most urgent tasks was therefore to “establish a common and uniform interpretation of the Derg era, by fixing memory and institutionalizing a view of the past conflict“, a priority expressed in the limitation of the Special Prosecutor’s mandate to regime crimes.

Along with the sensitive political context, the Red Terror trials faced a number of difficulties that are common to transitional settings: the lack of resources to pursue trials in a speedy manner, the absence of a skilled judiciary following lustration of Derg officials, and the evidentiary challenges of investigating atrocities many years after the fact. Nevertheless, they ground on for nearly a decade and a half, with almost no attention or assistance from the international community. They’re overdue for a look.

 

 

Posted in Mass Atrocity Monday | 1 Comment

Is the South African Government an Accessory to Genocide in Darfur?

Posted on March 31, 2016 by Mark Kersten

(Cartoon: Justice Hub)

The Government of South Africa continues to be bombarded with criticism regarding its handling of a visit last summer by Sudanese President Omar al-Bashir, who faces war crimes, crimes against humanity, and genocide charges at the International Criminal Court (ICC) for his alleged responsibility for atrocities committed in Darfur. Two weeks ago, the South African Supreme Court of Appeal ruled that the government had broken the law in not arresting and surrendering Bashir to the ICC as well as allowing him to leave the country despite a order issued a domestic court to prohibit his departure. It was a significant blow for the government. And the blows keep coming.

This week, Thuli Madonsela, South Africa’s Public Prosecutor insisted that, even though Bashir was allowed to leave the country in defiance of court orders, the strength of South Africa’s rule of law ensured that he had to sneak out “like a little criminal”. Then, in a belated review of South Africa’s human rights record, the United Nations Human Rights Committee continued to pile-on. In its report, the Committee observed that the failure of South African authorities to detain and surrender Bashir was “inconsistent with the Constitution” and that Bashir’s ability to leave the country came “in violation of an interim Court order”. It added that South Africa “should continue its investigation of the events surrounding the failure to comply with the interim Court order on President Al-Bashir and take the necessary measures to ensure compliance with rulings of domestic courts, including in cases relating to the State party’s international treaty obligations.”

Such determinations and rulings are undoubtedly important. But what may, on first glance, seem to be a legal battle that will keep lawyers and advocates employed, literally as well as in argument, for years to come, also has the potential to morph into a criminal matter. While it hasn’t received significant attention outside of the country, the potential for criminal charges being laid has been intimated in all of the rulings of South African courts on the matter. Allowing Bashir to leave in violation of a court order explicitly prohibiting his departure may lead to criminal proceedings levied against those responsible. And that’s not all…

There is also an argument that members of the South African government who had been closely involved in assisting Bashir escape South Africa in the face of the existing court order by the Pretoria High Court (and the warrants of arrest issued by the ICC) might be considered as accessories after the fact to genocide.

Continue reading →

Posted in Afghanistan, Darfur, International Criminal Court (ICC), International Criminal Justice, Omar al-Bashir, South Africa | Tagged | 7 Comments