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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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