Scott Ross

When Dominic Ongwen stood before the International Criminal Court on January 21, he confronted  a team of prosecutors and judges presenting a list of his alleged war crimes.  After spending years as a brigade commander in the notorious Lord’s Resistance Army (LRA), Ongwen was no longer outfitted in rebel attire, but stood in a gray suit and tie, listening to the proceedings as they were translated into his native Acholi language. He waived the right to have each of the charges against him read aloud in court, so the presiding judge, Cuno Tarfusser, summarized the seventy charges of war crimes and crimes against humanity.

When Ongwen was first taken into custody last January, major rights groups heralded his capture as an important step towards justice. Amnesty International argued that “Ongwen now needs to be held to account for the numerous charges he faces of murder, mutilation, forced recruitment of child soldiers and use of sex slaves.” Africa director of Human Rights Watch, Daniel Bekele, called Ongwen’s transfer to The Hague “a major step for those affected by the LRA’s long history of crimes.” This was a sign of progress in the ICC’s first case, which was opened in 2004 and has otherwise seen little development.

But while Western rights groups were nearly unanimous in supporting Ongwen’s transfer to the ICC, the mood among Ugandans was decidedly mixed—even among victims of LRA violence. The Acholi Religious Leaders Peace Initiative issued a press release regretting that Ongwen had been sent to the ICC, arguing instead for him to be brought home and forgiven through traditional reconciliation ceremonies. The statement said that the ICC, “which is punitive or retributive, promotes polarization that only leads into ultimate alienation on both sides” of the conflict. Around the same time, Makerere University’s Refugee Law Project facilitated a dialogue of local leaders in Gulu, a town that was at the center of the conflict for many years. A report on the discussion found that attitudes among the Acholi people were complicated and support for Ongwen’s arrest was far from universal.

The ICC initially charged Ongwen with three counts of crimes against humanity and four counts of war crimes, including murder and enslavement, for his involvement in an attack on an internally displaced person’s (IDP) camp. The LRA is reviled the world over and has little popular support, even in the Acholi region where it sprang up in the 1980s. The group is known for carrying out gross human rights violations, including the murder, mutilation, and abduction of civilians in four different countries under the leadership of Joseph Kony, a ruthless commander and supposed spirit medium.  Why, then, are its victims so divided on this issue?

Part of the answer lies in the very tactics that make the group so horrific. When the LRA failed to find support in northern Uganda, it turned instead to abducting youth from local populations to bolster its ranks. Twenty-eight years ago, Ongwen, then a young boy on his way to school, became a victim of the LRA’s abduction campaign. In the decades since, he survived a brutal life, impressed his superiors, and rose through the ranks. For this reason, Ongwen is as much a victim as he is perpetrator in the conflict.

A year before his confirmation of charges, Ongwen appeared at The Hague for the first time. The initial hearing was to ensure that he understood why he was there and to set a date for the charges to be confirmed. He stood alongside his lone legal counsel as the judge asked him to state his name, date and place of birth, and profession. He replied in Acholi:

I thank you. First of all, I would like to thank God for creating heaven and earth; together with everybody that is on earth. My name is Dominic Ongwen, I am a Ugandan citizen from Northern Uganda. I am from a small place called Choorum in Kilak County, Amuru District. I was born in 1975 and was abducted in 1988 and taken to the bush when I was 14 years old until now that I am before ICC.

He went on to indicate that he understood why he had been brought before the Court, and later acknowledged that his profession had been a rebel soldier up until he was taken into custody.

When the ICC issued five indictments related to the LRA conflict in 2005, four of them were for members of the high command of the entire rebel group—Ongwen was the only brigade commander indicted. He was also the only one who had not joined the group voluntarily. As one report notes, “Ongwen is the first known person to be charged with the same war crimes of which he is also victim.”

Ongwen’s history has been the subject of many questions and reports since the ICC indicted him more than a decade ago. His story is as tied up in the conflict’s history as it is in ongoing debates about international justice. Because he is both a victim and a perpetrator, his trial will be a site of both justice and injustice, peace and punishment.

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The LRA first arose amid other rebel groups in northern Uganda in response to Yoweri Museveni’s rise to power in 1986. Still president today, Museveni unseated a northerner-dominated government by force immediately after signing a peace deal. Of the many northern insurgencies that took up arms, the LRA quickly became the last standing others were defeated or negotiated peaceful disarmament. It was then that the LRA, a religious movement guided by a blend of Christian and spiritual beliefs, began conscripting civilians from the local Acholi population, seen by the LRA as “impure” and siding with the government.

Ongwen was one of its earliest victims, spending nearly three decades surviving the violence and tumult of war. Justice and Reconciliation Project published a report by Erin Baines, a professor at the Liu Institute for Global Issues at the University of British Columbia, on Ongwen’s history. The man that emerges from these accounts is one who has struggled through a lifetime of violence.

After being abducted, Ongwen was likely forced through violent rituals and indoctrination, and was placed under the tutelage of Vincent Otti, the LRA second-in-command also indicted by the ICC. Ongwen would learn to kill, maim, and abduct civilians and live a life on the move. In this, as Ledio Cakaj explains, “Ongwen is sadly typical of the LRA rank and file.” Once in rebel ranks, Baines writes, “children may ‘play stupid’ to avoid being forced to kill, or ‘play smart’—including demonstrating a willingness to kill—in order to secure a better life, such as access to better food or security.” This decision was described by Ongwen’s defense counsel, Krispus Ayena Odongo, as “a devil’s choice” between “compliance or certain death.” Ongwen tried to survive and excelled at “playing smart” as a rebel fighter. He earned a name for himself, along with several promotions, as he adapted to life in the bush. It was this notoriety that led to his indictment by the ICC.

Ongwen’s role in the rebel group was not always one of blind following. At several moments in the last decade, he showed acts of resistance against the rebel leader, Joseph Kony. Odongo stated that Ongwen had tried to escape several times, but was captured and punished by Kony. In addition, during the 2006-2008 peace talks in Juba, South Sudan, divisions within the rebel group led Kony to order the execution of Otti on suspicion of cutting a deal with the government. Supposedly, Ongwen was only spared due to his abilities on the battlefield. When a Uganda-led military operation attacked LRA bases in the Congo in 2008, scattering rebels into separate groups, Ongwen used the distance between Kony and himself to operate independently.

He refused to join the leader in Central African Republic (CAR) despite Kony sending envoys to retrieve him. This led an international working group to describe Ongwen and his troops in its report as a possible “renegade group.” Several NGOs in the region targeted Ongwen in radio messages that encouraged his surrender, hoping to exploit the rift with Kony.

Within the LRA, Ongwen was demoted and disciplined. “Kony had ordered a commander called Aligac to have me arrested, tortured and caned 250 strokes,” Ongwen told the Daily Monitor before he was transferred to The Hague. “He said if I refused [to meet with Kony], I should be killed.” Kony’s envoy eventually released Ongwen after holding him for nine days in detention in Darfur. According to Ongwen, ever since the attack in 2008 he had been contemplating returning home: “I slowly started giving up on rebel life… I was captured at a tender age, and went there as someone who was blind and deaf.” This tense relationship with his own commanders feeds into ongoing debates over how Ongwen was taken into custody. He may have been captured, but it is also possible that he was seeking to surrender, as many formerly abducted people have done after years in the rebel ranks. 

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For years the war with the LRA festered along the margins of northern Uganda, far away from the capital city, Kampala. Periodically, the Ugandan military (Ugandan People’s Defense Force, or UPDF) would engage in brutal suppression of the peasantry for helping the rebels. Just as often, the rebels would massacre civilians for collaborating with the state. The events of October, 1996, are representative of the situation in which civilians found themselves. It was then that the LRA carried out its now infamous abduction of over one hundred school girls from Aboke. That same month the Ugandan government began to forcibly move civilians, often by bombing and burning down villages, into camps said to be “protected villages” that isolated the rebels in the countryside.

In reality, the villages were often left unprotected, and rebels attacked the displaced in retaliation for relocating and abiding by the government’s forceful hand. While the LRA are often (rightly) condemned for their actions, the Ugandan government also played a part in inflicting misery on the population. Some have charged that the government’s camp policy was a form of mass torture or even genocide, as it disrupted civilian life, crippled political mobilization, and left the displaced malnourished and impoverished. By 2000 almost half a million people lived in these camps, some of which housed tens of thousands of people in cramped quarters lacking food, sanitation, and healthcare. By 2006 over 1.7 million people had been displaced. At the height of the crisis the camps suffered some 1000 excess deaths per week. Among these unprotected villages was the camp at Lukodi.

As nearby peasants fled rebel violence and sought refuge in the small village, Lukodi developed into a camp for the displaced. Although there was a military presence, the station was at the center of the camp, unable to effectively shield inhabitants from outside attack. Those tasked with protecting Lukodi were not well-trained soldiers, but militias made up of recruited locals who were rarely paid and ill-supplied.

The LRA perceived the community of Lukodi as government collaborators, and set out to attack the camp. On the night of May 19, 2004, rebels converged on the village in a gruesome assault detailed in a report by Justice and Reconciliation Project. The village was surrounded, many of the guards fled, and those who remained were swiftly routed. Civilians were killed, including children and the elderly, and whole sections of the village were burned down. According to the ICC charges, “the attack resulted in 41 people being killed” and “the injury of at least 13 people, the abduction of at least six people, as well as in approximately 210 civilian houses being burnt.” It is for this incident that Ongwen has been charged with crimes against humanity and war crimes.

Ongwen’s alleged guilt for these crimes has not convinced everyone. “How did Ongwen, in the first place, end up in the hands of the LRA?” the Acholi Religious Leaders Peace Initiative asked in its statement challenging ICC involvement. Citing Ongwen’s abduction, the coalition argued that “Uganda as a state… has failed” and should be held to account alongside the rebels. The impending ICC trial of Ongwen, in the eyes of the religious leaders, would not lead to true justice.

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When it opened the investigation into the LRA conflict in 2004, the ICC was a nascent institution trying to answer a global call for accountability. The situation in Uganda was the Court’s first case, and many believed it was the opportune place for the ICC to get its feet wet. An oversimplified narrative depicted Kony and his rebels as irrational terrorists with no support base, and the government of Uganda as the under-equipped good guy struggling to end the war. The intervention would be relatively apolitical on the global stage and would yield quick results.

Instead, the Court was roundly criticized by virtually every angle among scholars, Ugandan civil society, and victims. The Court’s Western background conflicted with many Ugandans’ desire for a more conciliatory justice mechanism. The indictments directly contradicted the Ugandan Parliament’s blanket amnesty, which has led to the demobilization and reintegration of tens of thousands of rebels. Its decision to train its investigation on the rebels at the behest of the Ugandan government left many Northerners—many of whom suffered just as much, if not more, at the hands of the UPDF—skeptical of the Court’s bias. As the Court moved on to more high-profile cases in Darfur and Kenya, Uganda was put on the back burner.

Now that Ongwen has been brought to The Hague, the ICC’s Uganda case is once again in the spotlight, but the stakes are just as high as they were a decade ago. While the Court has prosecuted several cases in the interim, it has been the target of a sustained campaign of criticism from African heads of state—even Museveni has loudly condemned the institution despite having initially referred this case to the Court.

In its defense, the court features constraints worth highlighting. The ICC was officially created on July 1, 2002. Legally, it is prevented from investigating any acts prior to that date. When it first launched its investigation in July of 2004, it could only look back two years in collecting evidence. In the end, a conflict involving both rebel and state violence that began around 1987 in Uganda and continues today in three neighboring countries was reduced to a nine-months-long investigation of rebel attacks in a few Ugandan districts within a three-year window. In 2005 the ICC issued its warrants, but there has been no move to investigate UPDF crimes in Uganda, or atrocities by either side in South Sudan, DRC, or CAR.

These temporal and geographic limits skew the LRA conflict. The LRA’s command hierarchy is one that is always in flux, and if the ICC had investigated the situation at a different time it very likely would have indicted different individuals. Caesar Acellam, a top LRA commander who was taken into custody in 2012, has not been charged with any crimes and now lives freely in Uganda. Acellam even spoke at a 2013 conference of civil society from LRA-affected parts of central Africa, hosted by the NGO Invisible Children. Meanwhile, Dominic Ongwen, who was abducted around the same time as Acellam and left under similar circumstances, sits in The Hague. Both are high-ranking commanders with close ties to Kony. Indeed, the only significant difference between the two is that Acellam was never charged by the ICC, and Ongwen was.

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The question of justice is carried out in the LRA conflict is complex. The temporal limits of the ICC further exacerbate questions of whether the government can be held accountable, what types of reparations victims should receive, and whether or not child soldiers should face trial. This is further complicated by the presence of an amnesty program and the use of mato oput—a local, traditional reconciliation ceremony—to reintegrate former rebels back into their communities without conventional punishment.

As Stephen Oola of the Refugee Law Project notes, “to the survivors and victims within northern Uganda, the majority of whom were tormented by both LRA and government forces, any proceedings which target only one party to the conflict without addressing the impunity of the other serves no justice.” But the chances of Ugandan government forces standing trial for anything is hard to imagine in today’s Uganda. Even if state impunity is accepted as a foregone conclusion, the mission to hold even one LRA fighter to account is also fraught with tension.

“Many people are determined to see him in the dock in The Hague,” Erin Baines and Stephanie Nolen observed of Ongwen in the Globe & Mail. “But for every witness against him, there is one who could testify to the savage process of violence and psychological intimidation through which he was turned from child to killer.” The question of prosecuting a victim of childhood abduction of the same crime sits uneasily with some. International criminal law and human rights law regimes have done much to address the realities of conflict today, but “no provision is made for those like Mr. Ongwen who grow up in the image of their oppressors: As the law stands, if they carry out the same crimes after their eighteenth birthdays that they did the day before they are no longer victims, but criminals.”

At the confirmation of charges hearing last month, ICC prosecutor Ben Gumpert addressed “the tragedy of this case”—Ongwen’s history as both perpetrator and victim. He admitted that “the stories told by so many of the witnesses in this case could in other circumstances be the story of Dominic Ongwen himself” but nonetheless argued that “this is no reason to expect that crimes can be committed with impunity.”

Former rebels like Ongwen or Acellam were conscripted as children decades ago, “a temporal span over which a young person so labeled [as child soldier] at one time moves to different stages of moral reasoning, responsibility, and culpability,” anthropologist Mariane Ferme writes. They are either labeled child soldiers and seen only as helpless victims, or their victimhood is disregarded. Our perception of accountability doesn’t adequately account for the complexities of child soldiering. Both men are “complex political perpetrators,” which Erin Baines defines as those child soldiers who tried to regain agency over their lives through violence, but nonetheless remain victims, and whose complex status is excluded from the clear-cut legal discourse that the ICC puts forth.

Both fit this description, but Acellam has evaded accountability while Ongwen awaits judgment on his charges, due primarily to the arbitrariness of where and when the ICC investigation took place. Despite the ICC’s role in the LRA conflict having diminished over the years since the end of the Juba peace talks in 2008, the Court remains an important player. It clarified the identities of the LRA leadership based on dated investigations, and created a justice-for-some, forgiveness-for-others narrative now upheld by various NGOs and governments. 

And yet, Ongwen is likely to be the only LRA rebel to stand trial. Kony remains at large and is rumored to be in hiding in Sudan, and the other three ICC-indicted rebels are believed to be dead. Thomas Kwoyelo, a rebel commander on trial in Uganda’s High Court, has technically been granted amnesty and ordered released by the Constitutional Court, but remains in legal limbo in his prison cell. Ongwen has become the public face of LRA accountability, and his trial is the site of many negotiated attempts to find a particular type of justice.

In September, the ICC Chief Prosecutor Fatou Bensouda announced that her office would be expanding the case by adding sixty more charges to his case. They include crimes in three other IDP camps in Uganda, a move that Sharon Nakandha of the Open Society Justice Initiative says “allows more victims the opportunity to participate in the proceedings—and to participate in transitional justice processes.” Indeed, two thousand victims are participating in the trial through the ICC. 

Yet even this expansion of charges has its limits, which are apparent in the Association of LRA Victims of the Central African Republic’s statement calling for Ongwen’s case to include crimes committed there. Congolese and South Sudanese communities likely also suffered from his actions, and Ongwen’s trial is quickly becoming an avenue to justice for all victims of LRA violence. This expansion of charges also results in Ongwen, an abductee-turned-rebel, facing more charges than the rebel group’s high commander, Joseph Kony, and Omar al Bashir, the architect of genocide in Darfur who also played a major role in funding and arming the LRA for years, largely because Ongwen is the symbol of accountability in a war where few have seen justice.

But justice means much more than the criminal proceedings underway at The Hague. Reconciliation has long been an alternative post-conflict process in northern Uganda. At a 2013 conference, Invisible Children’s Jolly Okot Andruville spoke before representatives of Congolese and Central African civil society. Acellam had just spoken, and Andruville said that “many thought that UPDF should have killed him, but we say ‘no, he is our son,’ and that is the same thing that I want the Congolese to do and the people of Central Africa to do to your children who are coming out. Receive them. Accept them. They are your children.” The extent to which that message resonated is still unclear as victims of LRA violence continue to vary in their willingness to forgive perpetrators or demand accountability. 

True justice, however, must come with change. The LRA is a weakened and small force, but it continues to cause insecurity in a region beleaguered by armed groups. Even in Uganda, where the rebels have been gone for nearly a decade, the government that caused so much harm remains in power. One report found that even “for Lukodi, justice means compensation and government accountability.”

A 2005 survey in northern Uganda found that 58 percent of respondents thought that LRA soldiers should not be put on trial, but 51percent wanted the UPDF to face trial instead. When the same researchers returned during the peace talks in 2007, they asked what should happen to different actors in the conflict: 42 percent were willing to forgive the LRA, but only 29 percent forgave the UPDF, while 22 percent thought the LRA should be tried and 34 percent wanted to put the army on trial. 

After the peace talks collapsed and the rebels fled into neighboring countries, a 2010 survey asked respondents whom they most wanted to be held accountable: 64 percent said the government, 19 percent said the LRA leaders. Demands for government accountability are consistent, and many in Uganda are waiting for justice that Ongwen’s trial will not give them. The most Ongwen’s case could do for victims of state violence is shed light on the government’s camp policy as a form of truth-telling, but no real accountability will be had.

That the search for justice is increasingly channeled through the trial of a single former child soldier is worrisome. “Justice in the wake of mass violence means reform towards a new social and political order, and it is this understanding that the ICC disciplines out of existence by equating justice with criminal justice,” writes political scientist Adam Branch in his book about the conflict, Displacing Human Rights. “As the ICC’s understanding of justice as criminal justice is imposed, disseminated, and naturalized, proposals for social and political justice are ignored, and the political and social reform that is the only thing that will prevent mass violence from recurring is precluded by the obsession over which handful of individuals will stand trial in the Hague.”

Increasingly, it has become apparent that the role of the ICC is not to bring about justice but to enact law. As it becomes increasingly clear that only one person will stand trial for three decades of war in four countries, alternative opportunities for true justice may be closing even more.

Scott Ross is a doctoral student at The George Washington University's anthropology department. He has written about judicial, military, and media interventions in the LRA conflict for several publications, including Guernica, Justice in Conflict, and African Arguments. He tweets at @scott_a_ross and blogs at Field research in Uganda and the D.R. Congo was funded by the Lindsey Fellowship for Research in Africa and the Coca-Cola World Fund at Yale University.