{UAH} 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

For a version of this Bulletin in html format, more suitable for

printing, go to http://www.africafocus.org/docs16/uga1605.php, and

click on "format for print or mobile."

To share this on Facebook, click on

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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 gender-

based 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.

 

 

EM

On the 49^th Parallel          

                 Thé Mulindwas Communication Group
"With Yoweri Museveni, Ssabassajja and Dr. Kiiza Besigye, Uganda is in anarchy"
                    Kuungana Mulindwa Mawasiliano Kikundi
"Pamoja na Yoweri Museveni, Ssabassajja na Dk. Kiiza Besigye, Uganda ni katika machafuko"