LRA Commander Dominic Ongwen: A useful asset to ICC Prosecutor

Maj. Gen. Dominic Ongwen surrendered to the Seleke militia in the Central African Republic (CAR) on 6 January 2015. On the same day he was handed over to US military advisers working with the African Union (AU) Regional Task Force in CAR.

Maj. Gen. Dominic Ongwen is currently in the custody of the US military in CAR. [He has since been flown to the International Criminal Court at The Hague to stand trial - Editors.">

Ongwen was born in 1980 at Paibona Village in the former Gulu District in northern Uganda. In 1990, aged 10, Ongwen was abducted by members of the Lord’s Resistance Army (LRA) while on his way to school. During his captivity, he was subjected to harsh treatment and military training. Lacking parental care and proper up-bringing while in the LRA camps, Ongwen was trained to become a ruthless military commander. He quickly demonstrated his ability and skills to fight for the LRA and was subsequently rapidly promoted through the ranks, eventually becoming a Major General in the LRA.

Dominic Ongwen was a child soldier. However, since his capture in 1990, he fought for the LRA, first as a child soldier, and later as an adult combatant until his surrender on 6 January 2015. His dual status as a victim of war and also as an alleged perpetrator is a relevant factor that may or should be considered at his trial for alleged crimes committed in northern Uganda.[1]

An overview of the armed conflict in northern Uganda shows that the war was between the National Resistance Army/Uganda Peoples Defence Force (NRA/UPDF) and the Lord’s Resistance Army (LRA). The armed conflict began in 1986 and ended in 2006 although no formal agreements were signed by the parties marking the end of the conflict.

Gen Museveni was and still is the supreme commander of the NRA/UPDF and Gen Joseph Kony for the LRA. The two leaders are responsible for planning, organizing and commanding their respective forces.
The Museveni war in northern Uganda war was brutal, vengeful and gradually morphed into an ethnic war between the Bantu south and Nilotic and north. The war fed on Uganda’s historical ethnic divide between south and north despite repeated public denials from both parties.

The victims of the war are predominantly civilians comprising women and children of the Acholi and Langi ethnic groups. Both parties to the armed conflict violated laws and customs of war by failing to distinguish between civilian and military objects and further failed to avoid attacks on civilians, civilian population and civilian property. Forceful displacement of the civilian population, itself a war crime, became the norm. Thousands of civilians were killed or ‘disappeared’ as a result of policies of complete disregard for the civilian population practiced by both parties.

While thousands of civilian were killed and many more displaced, only a handful of combatants, from both the NRA/UPDF and LRA, were killed or wounded in combat. Both parties, throughout the duration of the conflict, continued to target civilians and to destroy civilian property.

The surrender of Dominic Ongwen is therefore welcome and provides an opportunity for victims and survivors to know what happened to their loved ones. Trial of Dominic Ongwen will hopefully provide an opportunity for the ICC Prosecutor to have a holistic view of the conflict in northern Uganda and to consider whether new indictments, covering crimes committed by the NRA/UPDF, and other senior members of the LRA should be issued.

Currently, conflicting reports continue to come out of Uganda alleging that the US military has transferred Ongwen to the UPDF in the CAR while the US embassy in Kampala has consistently denied the Ugandan reports.[2] However, it is reasonable to infer that sooner or later, Ongwen will be transferred to the ICC to face trial pursuant to the ICC’s warrant of arrest. Once at The Hague, the ICC Office of the Prosecutor (OTP) will have to decide how to proceed with the case of a victim – a child who was abducted by a rebel militia because his government failed to protect him, and simultaneously to prosecute him as an alleged perpetrator charged with committing serious international crimes.

Dominic Ongwen may turn out to be a useful asset and a gift to the OTP if the Prosecutor chooses to use him as an “Insider Witness”. In law, an insider witness is a person who, as an accused or a potential accused, agrees to provide all information within his knowledge that may incriminate senior members of a criminal enterprise including himself in exchange for a guilty plea and a reduced sentence. Under this arrangement, Ongwen is in a position to provide credible information about Joseph Kony as well as on senior NRA/UPDF military leaders, including providing information on operational commanders and foot soldiers responsible for widespread or systematic mass murders during the armed conflict. Finally, guilty pleas save time and resources of the Court.

It is also reasonable to infer that Ongwen is privy to the inner workings of the LRA. His level of seniority in the LRA probably allows him to have access to confidential information and documentation. Such information can be a source of invaluable service to the OTP, if he is persuaded to cooperate with the prosecution.

The jurisprudence of the International Criminal Tribunal for Yugoslavia (ICTY)[3] and the International Criminal Tribunal for Rwanda (ICTR)[4] suggests that it is not uncommon for an accused turned prosecution witnesses to provide information on more senior members of an army, militia or a criminal enterprise under investigation. The two ad hoc tribunals have successfully used statements of Insider Witnesses to build cases against some of the most senior persons responsible for planning, organizing, directing as well as financing commission of international crimes. Such cooperation, however, functions successfully on the basis of a quid pro quo. Thus, what Ongwen needs, or indeed any accused in similar situation may do, is to turn himself against his former colleagues or partners in crimes for reasonable incentives.

The process of negotiating guilty pleas while controversial in some civil law jurisdictions is accepted practice at common law and before the ad hoc tribunals and the ICC. An accused and the defence team, in a negotiated guilty plea agreement offered by the prosecutor, or initiated by the defence, encourage the accused to agree to cooperate with the prosecutor and to provide truthful and credible testimony in exchange for a lesser charge, a reduction of sentence or both. The accused then undertakes to testify against other senior members of his organization.

The evidence provided by the lower-level perpetrators allows the prosecutor to ‘work up the ladder’, in that, by first prosecuting lower-level perpetrators or by negotiating guilty pleas, relevant and credible evidence are gathered by the prosecutor and at a later stage, relied on to prosecute senior political and military leaders who are most responsible for commission of serious international crimes. Absent insider witnesses it is generally problematic to prosecute senior political and military leaders, including heads of states and governments.

In the prosecution of Sloban Milosevic, former President of Serbia, Milan Babic another accused jointly charged with Milosevic and others in an earlier indictment in a joint criminal enterprise as a mode of participation, voluntarily approached the prosecutor for interviews and volunteered valuable information. Babic subsequently testified voluntarily in the Milosevic proceedings despite the fact that he was incriminating himself. Babic also provided documentation to assist in bringing himself and others to justice. Babic later was separately indicted, entered into a plea agreement to the crime of persecution as a crime against humanity and given a reduced sentence.[5]

At the ICTR, Rwanda’s Interim Prime Minister Jean Kambanda’s guilty plea agreement provided invaluable information and documentation to the prosecutor. Although Kambanda later refused to cooperate with the OTP because of a life sentence imposed on him by the Court, his guilty plea agreement continued to be used in the prosecution of other senior political and military officers of the Rwanda’s interim government.[6] Similarly, Georges Ruggiu and Omar Serushago turned prosecution witnesses and testified against their former colleagues in return for shorter sentences.[7]

Guilty pleas by lower-level perpetrators such as Ruggiu and Serushago, or senior leaders such as Prime Minister Kambanda, often provide the much needed and necessary link, connecting senior political and military leaders with lower-level perpetrators who followed orders and murdered civilians, while their superiors or commanders stayed far away from the actual scene of crimes.

Dominic Ongwen can, and should be encouraged to play this role and thereby provide information on top leadership of the LRA and NRA/UPDF and assist the prosecutor by providing links between lower-level perpetrators who committed crimes and the superiors/commanders who planned, ordered and directed the commission of the crimes. Overall, in the prosecution of international crimes as complex as the armed conflict in northern Uganda, use of Insider Witnesses, whether lower-level or higher-level perpetrators, is a valuable tool in establishing the necessary link between the senior leaders and the foot soldiers engaged in widespread or systematic mass murders, including genocide, crimes against humanity and war crimes.

Additionally, the ICTY/ICTR precedents demonstrate how testimonies of persons involved in the commission of serious crimes also serve other significant purposes such as establishing directly and succinctly, for the first time in a public forum, that atrocity occurred; and providing direct and detailed evidence as a member of a military or government to confront those authorities and individuals who still deny the atrocities. An admission by Prime Minister Kambanda of his participation and responsibility for the crime of genocide in a public forum, for example, confirmed what many in Rwanda, at the time, privately knew that the government was responsible for the genocide. Ongwen’s statement, like Kambanda’s, may confirm to the people of northern Uganda, their suspicion that Uganda government deliberately permitted the war to drag on for twenty years because of its intention to punish them and to guarantee the under-development of northern Uganda.

Further, Insider Witness testimony serve a useful purpose because evidence of victim-witnesses or survivor however credible, remains incomplete in that it is problematic for the prosecutor to rely on such testimony to establish evidentiary link between a high-ranking political or military figure who planned the atrocity from afar, and the lower-level perpetrators who executed the crimes in the field whom the victim-witness or survivor might have seen at the crime scene and could identify. In other words, testimony of a credible victim-witness or survivor may still fall short of establishing beyond reasonable doubt that the high-ranking political or military leader is directly responsible for the alleged crimes. All the victim-witness or survivor can do is to describe the personal contact between him and the actual perpetrator. On the other hand, it is the Insider Witness, based on his personal knowledge and an understanding of how the criminal enterprise works, can provide the necessary link between the actual perpetrator and a leader who issued the order.

Insider Witnesses or survivors do face great risks and threats to themselves and their family members. There are therefore protection measures that may be put in place for those who are in danger. Protection is provided by, inter alia, seeking protective measures in court proceedings such as close session testimony, use of pseudonyms, facial or voice distortions. The practice assists in securing testimony of important witnesses and has been successfully used at the ICTY and ICTR. In certain circumstances protective measures such as placing the witness in a witness protection programme is also available.

Overall, Dominic Ongwen as an LRA insider and a prosecution witness would provide the current missing context in the brutal armed conflict between the NRA/UPDF and the LRA. Ongwen would also provide insightful information on relationship between the NRA/UPDF and LRA, particularly as it is an open secret that senior members of the NRA/UPDF sold arms and ammunition, and provided food and medicine, to the LRA during the twenty-year war. This in turn will provide understanding on strategies and tactics used by both parties with horrendous result in civilian deaths and mass rape. The survivors and victims in northern Uganda may then eventually know who the perpetrators are, including their real names even if some perpetrators may have changed their names.

In conclusion, but for the failure of the Museveni government to provide protection to its youth in northern Uganda, including the girls abducted from Aboke High School and Gulu Sacred Heart School, the young Dominic Ongwen, would not have been abducted by the LRA at age 10 on his way to school. Viewed in that context, the Museveni government bears some responsibility for its failure to protect Ongwen while the LRA is equally responsible for turning Ongwen into a killing machine. As an adult combatant Ongwen is responsible for his criminal acts.

Thus, taking a holistic approach to the Ongwen situation, the OTP is urged to consider offering Ongwen an Insider Witness status and thereby providing an opportunity for him tell his version of the story in a relaxed surrounding. In the end, Ongwen may describe the relationship between the LRA and NRA/UPDF; describe the various circumstances under which civilians were murdered, raped and sexually assaulted; forceful displacement of the civilian population, and to name senior political and military leaders on both sides of the conflicts for crimes committed against a civilian population.

After his cooperation with the OTP, Ongwen may be offered a guilty plea and a reduced sentence. Information, documentation and other leads provided by Ongwen’s guilty plea may then be used to pursue the “big fish” in the NRA/UPDF, that is, the superiors and commanders who organized and conducted a twenty-year war that resulted in mass murder of thousands of civilians. Ongwen will also provide direct evidence on Joseph Kony by providing organizational details, management of the LRA and other relevant information. Ongwen is an asset the Prosecutor should not miss.

* Obote-Odora Alex is an independent legal consultant.

END NOTES

[1] Dominic Ongwen is charged with a total of seven counts. Three counts relate to Crimes Against Humanity and four counts of War Crimes, see The Prosecutor v Dominic Ongwen, ICC-02/04-01/05-57, Warrant of Arrest, 8 July 2005.
[2] Observer, “Why the US held on to LRA man”, Wednesday, 14 January 2015; Daily Monitor, “LRA’s Ongwen handed over to UPDF”, Wednesday, 14 January 2015; and Daily Monitor, “UPDF, America agree on Ongwen hand over” Thursday 15 January 2015.
[3] The Prosecutor v Kuoreskic et al, (IT-95-16-A), Appeals Judgement, 23 October 2001; The Prosecutor v Kordic and Cerkez, (IT-95-14/2A), Appeals Judgement, 17 December 2004.
[4] ICTY Guilty plea
[5] The Prosecutor v Kordic and Cerkez, (IT-95-14/2A), Appeals Judgement, 17 December 2004, paras 2, 65-67, 73, 74.
[6] The Prosecutor v Jean Kambanda, (Case No. ICTR-97-23-S), Judgement and Sentence, 4 September 1998.
[7] The Prosecutor v Georges Ruggiu, (Case No. ICTR-97-32-I), Judgement and Sentence, 1 June 2000; Prosecutor v Omar Serushago, (Case No.ICTR-98-39-S), Judgement and Sentence, 5 February 1999.

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