ICC Convicts Ongwen of 61 War Crimes and Crimes Against Humanity

By Tom Maliti International Justice Monitor 

The International Criminal Court (ICC) has convicted Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA), for  61 out of the 70 counts of war crimes and crimes against humanity  he had been charged with committing in northern Uganda more than 15 years ago.

Trial Chamber IX on Thursday unanimously found Ongwen guilty beyond reasonable doubt of  most of the crimes he had been charged with committing between July 1, 2002 and December 31, 2005.

The chamber found he was “fully responsible” for attacks on four camps for internally displaced people, for sexual and gender-based crimes against seven women who became his “so-called wives” and for conscripting and using children as soldiers. The chamber also found him guilty of sexual and gender-based crimes committed indirectly against other women or girls.

“His guilt has been established beyond any reasonable doubt,” said Presiding Judge Bertram Schmitt as he read a summary of the chamber’s verdict. The other members of Trial Chamber IX are Judges Péter Kovács and Raul C. Pangalangan.

Charles Taku, one of Ongwen’s lawyers, told the International Justice Monitor that the defense will appeal Ongwen’s conviction. Under the ICC’s Rules of Evidence and Procedure, the defense has 30 days from the date of the verdict to file their appeal.

Trial Chamber IX dismissed the defense’s arguments that Ongwen had a mental disease during the time he committed the crimes he has been convicted of. The judges also dismissed the defence that Ongwen acted under duress. Both defences of mental disease and duress are provided for in the ICC’s founding law, the Rome Statute.

“The chamber did not find evidence that, as claimed by the defence, he (Ongwen) suffered any mental disease or disorder … or that he committed these crimes under duress,” said Judge Schmitt. The judge said Ongwen was “in full possession of his mental abilities.”

“He planned his attacks carefully and assessed the risks fully with his officers,” said Judge Schmitt. He said the chamber also took into consideration the observations of “witnesses who were held as his so-called wives” and others who were close to Ongwen. The judge said none of them observed any behaviour that showed Ongwen had a mental disease during the period he committed the crimes.

“There is no basis at all to hold that he (Ongwen) faced imminent death,” said Judge Schmitt, referring to one of the grounds for determining duress. He said the evidence showed that Ongwen “was not in a situation of complete subordination but frequently acted independently and at times contested (LRA leader) Joseph Kony’s orders.”

“This judgement cannot be celebrated under any circumstance as a victory for justice for child soldier victims worldwide, (of) which Ongwen is one, and victims of Joseph Kony and LRA crimes in northern Uganda for which Dominic Ongwen is held accountable,” Taku told the International Justice Monitor via email.

“The finding on duress in particular, frees Joseph Kony from criminal responsibility for all the crimes, making Ongwen a scapegoat for his crimes and those of the LRA. The approximation of time frames in the summary judgement alone shows the extent to which the convictions are predicated on prejudicial fair trial violations,” Taku said.

Trial Chamber IX convicted Ongwen for his participation or role in the attacks on the Pajule IDP camp  (October 10, 2003); Odek IDP camp (April 29, 2004); Lukodi IDP camp (May 19, 2004); and Abok IDP camp (June 8, 2004). Among the crimes he was convicted of in relation to the attacks on the IDP camps are: murder, torture, enslavement and pillaging. In relation to these attacks,  Trial Chamber IX convicted Ongwen for most of the crimes he had been charged with, but not  cruel treatment or “other inhumane acts” as the chamber found these crimes were entirely encompassed within other crimes of which Ongwen was convicted.

As he read the summary of the verdict, Judge Schmitt took the time to name the victims who died or survived the attacks on Pajule, Odek, Lukodi and Abok. The judge said the chamber was not able to ascertain the names of all the victims.

“These victims have the right not to be forgotten,” said Judge Schmitt.

ICC Prosecutor Fatou Bensouda in a statement Thursday welcomed the judgment and said it recognized the harrowing accounts of the victims.

“Today, the truth was established through this important judgment and justice was served,” said Bensouda. “Through the court’s crucial work, today, an important message was sent globally that perpetrators of atrocities must be and will be held accountable.”

The chamber also convicted Ongwen for his direct and indirect role in sexual and gender-based crimes. For this category of crimes Ongwen was convicted of all the counts he had been charged with. These included sexual slavery, forced marriage and forced pregnancy. Judge Schmitt said this is the first time a trial chamber of the ICC has convicted anyone of the crime of forced pregnancy.

Judge Schmitt said the evidence the chamber received “overwhelmingly demonstrated” that the abuse of women in the LRA “was truly systemic and institutional.”

Paolina Massidda, who represents one group of victims in the case against Ongwen, said she was satisfied with the verdict. Massidda’s formal title in this case is Common Legal Representative of Victims.

“After 19 years of waiting for justice, victims in northern Uganda finally see their sufferings recognized by a court of law. The verdict fully reflects the atrocity of the crimes committed and recognizes the extent of the victimization of thousands of civilians: women, men and children who were indiscriminately touched by the events,” Massidda told the International Justice Monitor via email.

“The chamber has recognized Mr. Ongwen guilty of the crimes brought against him and excluded firmly the defence of mental disease and duress. The Common Legal Representative also applauds the recognition of the crimes of forced marriage and forced pregnancy which represents a milestone before the Court,” said Massidda.

“The coordinated and methodical effort to commit sexual and gender-based crimes – including by Mr. Ongwen directly – has indeed been recognized by the chamber as being systemic and institutional in the LRA,” said Massidda.

Ongwen’s trial began in December 2016 and continued until December 2019. This is when the chamber called to a close the evidentiary part of the proceedings. During this three-year period the chamber  heard 69 prosecution witnesses and received written evidence from another 40 witnesses. Seven women who testified about the sexual and gender-based crimes Ongwen committed against them gave their testimony during the pre-trial phase of the case. Their testimony was accepted as part of the trial record under Article 56 of the Rome Statute.

The defense called 54 witnesses and the victims called seven witnesses.

Ongwen’s conviction is significant because most other former LRA commanders, including those who were more senior than Ongwen, benefitted from a Ugandan government amnesty program that began in 2000. To date Uganda’s Amnesty Commission has granted amnesty to about 13,000 former LRA combatants.

Of the remaining former LRA commanders who did not get an amnesty, only one is on trial. This is Thomas Kwoyelo whose case is ongoing before the Ugandan High Court’s International Crimes Division.

Also, most of the people Ongwen was originally charged alongside  are dead. The initial ICC arrest warrant against Ongwen issued in July 2005 also named Kony, Vincent Otti, Raska Lukwiya and Okot Odiambo. The ICC has since declared Lukwiya and Odiambo dead and terminated the cases against them. Otti is widely believed to have been killed in late 2007, but the ICC is yet to declare him dead.

Of the people named in the July 2005 arrest warrant, it is only Kony who remains at large. This is despite United States special forces and the Ugandan military searching for Kony in the Central Africa Republic from  2010 until this  stopped in 2017.