LRA commander Dominic Ongwen came under the custody of US ‘military advisers’ supporting the African Union Regional Task Force in the Central African Republic (CAR) on 6 January, 2015. He was subsequently transferred into the custody of the International Criminal Court (ICC) on 17 January, 2015. Between those two dates, many things that we don’t fully know yet, happened. But what is clear is that negotiations occurred between CAR, Uganda, the US, the African Union and the ICC regarding what to do with Ongwen and how to handle his transfer once it was decided that he would be tried by the ICC.
Given that Ongwen was captured by (or surrendered himself to) the Seleka rebels, who, in turn, handed him over to US Special Forces in CAR, it is unclear whether the US will pay the Seleka rebels the $5 million reward for the arrest of Ongwen. And interestingly enough, the American “Hague Invasion Act” forbids the US government from assisting the ICC and allows the use of military force to free any American citizen detained by the Court, including raiding the Court in The Hague, if necessary. Let that sink in.
A decade after the ICC opened its investigation in northern Uganda, it is the first time that the Court has laid its hands on a suspect in that conflict. It is alleged that troops under Ongwen’s command are responsible for some of the LRA’s most vicious attacks in northeastern Congo.
Specifically, the ICC has charged Ongwen with criminal responsibility for crimes committed in northern Uganda in 2004: three counts of crimes against humanity and four counts of war crimes.
However, one peculiar factor in Ongwen’s case is his former status as a child soldier. At age 10, Ongwen was abducted by the LRA. The Rome Statute, which is the founding document of the ICC, does not provide tools for the prosecution of anyone under 18, which means that Ongwen’s actions as a child soldier cannot be held against him. He will be prosecuted only for crimes he may have committed as an adult.
However, as the Justice and Reconciliation Project has pointed out, “Ongwen is the first known person to be charged with the same crimes of which he is also a victim… [And his] case raises vexing justice questions. How should individual responsibility be addressed in the context of collective victimization? What agency is available to individuals who are raised within a setting of extreme brutality? How can justice be achieved for Ongwen and for the victims of the crimes he committed?” Allow me to insert here the usual disclaimer that Ongwen is presumed innocent.
Uganda had the option of putting Ongwen to trial in Kampala, rather than letting him be tried in The Hague. This would have been in accordance with Article 17 of the Rome Statute on complementarity, especially given that Uganda has equipped itself with institutions such as its International Crimes Division.
It is obvious that Uganda was able to try Ongwen. But was it willing to? Probably not. Museveni could not come out as the one that handed Ongwen to the ICC given his ambiguous stance towards the Court now (having become one of its most virulent critics and calling on African states to leave the Court.) In the end, Ugandan forces announced that Ongwen will be surrendered to the ICC by CAR authorities.
Ongwen is scheduled to make his initial appearance before the ICC today, 26 January, 2015. This initial hearing serves only to identify the suspect, inform him of the charges against him, and set a date for the “confirmation of charges hearing” which may be held several months from now (the prosecutor might need extra time to dust off the LRA dossier that has been dormant for the past few years.) At the confirmation of charges hearing the prosecutor must present sufficient evidence for the case to move to the trial stage. In any case, there is still a long way to go before an international court tries any LRA commander.