Failed justice casts shadow over ICC trial verdict

The International Criminal Court has found a Ugandan warlord guilty of horrific war crimes and crimes against humanity, but the ruling has brought scant relief to his victims.

The war in northern Uganda may have ended over 15 years ago, but as the first – and only – court verdict stemming from the conflict shows, justice in one of Africa’s deadliest armed confrontations remains elusive for the millions of people who were affected by it. 

The International Criminal Court (ICC) rendered its verdict in the landmark trial of former Lord’s Resistance Army (LRA) top commander Dominic Ongwen on 4 February, convicting him on 61 of the 70 counts against him, including the “inhumane act” of forced pregnancy. He had been accused of war crimes and crimes against humanity, including murder, rape, sexual slavery and torture. 

Ongwen, who as a child was kidnapped by the LRA, rose to become one of its most ruthless and notorious commanders. The judges expertly navigated the salient questions around his status as either a victim or a perpetrator and threw out, among other things, a defence on the grounds of duress and mental illness. 

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The ICC investigations centred on war crimes and crimes against humanity that took place mainly in northern Uganda in the early 2000s. Bertram Schmitt, the presiding judge, and judges Péter Kovács and Raul Cano Pangalangan found Ongwen guilty “beyond any reasonable doubt” of crimes ranging from attacks against the civilian population to conscripting children under the age of 15 and using them to take part actively in hostilities. 

“The chamber found that Dominic Ongwen is fully responsible for all these crimes. The chamber did not find evidence that supported the claim that he suffered from any mental disease or disorder during the period relevant to the charges or that he committed these crimes under duress or under any threats,” reads a statement by the ICC.

Ongwen could receive a sentence of up to 30 years in jail or even life imprisonment. 

4 February 2021: From left, Mohammed Olanyia, who lost his entire family in 2004 in a massacre perpetrated by the LRA in Lukodi, Uganda, listens to the ICC verdict with his village neighbours. (Photograph by Sumy Sadurni/ AFP)

Elusive justice

The judgment has jurisprudential value and may even send a strong warning to other warlords, but it offers little comfort to the victims who endured the violence of the brutal conflict. In the Ongwen trial alone, 4 095 victims were “participants”, which is separate from witnesses.

The whereabouts of LRA founder and top commander Joseph Kony remain unknown. And, since the LRA was effectively kicked out of Uganda in the mid-2000s, it has committed more crimes against humanity in South Sudan, the Central African Republic and the Democratic Republic of Congo. 

Senior rebel commanders, including some responsible for kidnapping Ongwen and conscripting him into the LRA, either remain at large or have received amnesty, like Kenneth Banya in 2004. Others, like LRA deputy leader Vincent Otti, were executed on the orders of Kony, while the status of Caesar Achellam, who was captured in 2012, is unknown. 

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Former LRA commander Thomas Kwoyelo, the first defendant brought before Uganda’s domestic court for international crimes, has been in detention since his capture in 2008. Beyond incarcerating him indefinitely, the Ugandan government has shown little appetite for bringing his trial to a close.  

Calls for prosecutions, reparations and institutional reform in the form of transitional justice have largely been ignored. According to the International Center for Transitional Justice, this concept refers to “ways in which countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response”. 

Transitional justice measures envisaged in the Agreement on Accountability and Reconciliation, the signing of which by the Ugandan government and the LRA ended the war in 2007, as well as subsequent discussions and commitments to end impunity and advance reconciliation have not been implemented. 

Alternative mechanisms

One of the commitments made on signing the 2007 agreement was to put in place measures to promote reconciliation, accountability and justice for the victims. However, it took the Ugandan government more than 10 years to approve the National Transitional Justice Policy, on 17 June 2019. 

The policy recognises the importance of traditional justice mechanisms in advancing accountability and reconciliation, and seeks to formalise their use as alternative avenues for post-conflict justice. The framers of the policy also designed it as an instrument to facilitate reparations processes and programmes, promote reconciliation and nation-building, and address gaps in the formal justice system. 

But Ugandan authorities have not done much to advance justice for the victims, who have largely been left to cope on their own with the physical and psychological wounds and disabilities they acquired during war. 

Authorities in Kampala also have at their disposal the African Union Transitional Justice Policy, which discusses how to approach and deal with a shameful history of human rights violations, foster healing and prevent the repetition of violent conflict and repression.

Limits of Western justice

When the Ugandan government referred the conflict to the ICC in 2003, there was fierce debate about whether a “Western justice” or traditional justice approach should be adopted. Close to 20 years later, this debate has not been settled.

For Morris Ogenga-Latigo, a retired professor of entomology and ecology at Makerere University in Kampala, the ICC trial and verdict have brought no relief. “It is just a painful reminder of the tragedy our people went through,” he said. “Dealing with individual crimes is totally inadequate. Some kind of truth and reconciliation process would be best for communal healing and letting go of that terrible past.”

A member of the Acholi people, the primary victims of the LRA insurgency, Ogenga-Latigo says they would have preferred to have their traditional “Mato Oput” ceremony with the LRA as part of the justice and reconciliation process. During this ceremony, the parties drink a bitter potion made from the leaves of the “oput” tree, which signals an acceptance of the bitterness of the past, forgiveness and reconciliation – traditional justice as opposed to the Western concept of it. 

“More importantly,” said Ogenga-Latigo, “many happenings during this insurgency were so horrendous and painful that a structured judicial process such as the ICC trial, with people who have no organic sense of what transpired presiding, is simply inappropriate and totally inadequate to exact justice, erase pain and restore normalcy to victims and the Acholi community. It has no functional value within the community.” 

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Agreeing with him is Mercy Awino, a law student who hails from the northern Uganda district of Abim. She was born in the late 1990s at the height of the LRA insurgency and her village experienced sporadic attacks by the LRA, including two that she remembers. Awino believes local and African institutions and mechanisms should take centre stage in resolving the questions left by the conflict. 

“Maybe the African Court on Human and Peoples’ Rights should be given jurisdiction to try crimes against humanity, especially with regards to African warlords and other perpetrators of crimes against humanity. This should serve as a direct address to the peculiar circumstances that characterise some of these African organised crime and rebel activities, as manifested in the Ongwen case,” she said.  

“It is also vital to accept as amicus curiae [friend of court] traditional leaders and scholars of the nature of African spirituality and how it plays a role not only in rebel activities, but on how to deliver transitional justice as exercised, for example, in this case in the Acholi society.”

Kony initiated a culture of violence in his followers, who believed that he possessed spirits and some form of supernatural power to tell the future and read minds. The ICC judgment glossed over this issue, demonstrating the international justice system’s limitations

1 August 2006: Wearing a white suit, LRA leader Joseph Kony arrives at a clearing in the jungle to take part in peace talks in Uganda. Kony remains at large and his whereabouts are unknown. (Photograph by Adam Pletts/ Getty Images)

Dispute resolution

The Refugee Law Project in Kitgum district, the epicentre of the conflict in Uganda, set up a small museum that serves as a repository for alternative dispute resolution methods, including Mato Oput. These methods are focused on transitional justice in its entirety, says Awino. This means not just punishing the offenders, but also allowing the victims to forgive their oppressors in order to create reconciliation and heal the society at large. 

What makes Mato Oput stand out, she argues, is that it recognises that material or monetary compensation to the victims isn’t enough, and that the connection between human beings and the welfare of society matters more. So, when the traditional leaders bring the two parties together and conduct a reconciliation process, they also offer venerations to the spirits and the gods of the land.

“The current justice system doesn’t do this. But it is important to note that African societies, even in the face of the white man’s civilisation, are still so much tied to their traditional religions and believe in their guidance. So you find that in such circumstances, only until the gods have been appeased and the victims also accept retribution and thereby forgive the perpetrators [is justice achieved],” said Awino. 

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An important part of Mato Oput is that it doesn’t let crime go unpunished. Even when forgiveness is granted, an offender is still punished by having to pay compensation. An example of this is a recent prominent case in which a business person, Mathew Kanyamunyu, and his girlfriend were charged with the murder of the human rights activist Mathew Akena, who hailed from northern Uganda. 

During his trial, Kanyamunyu got in touch with elders in Akena’s hometown. A Mato Oput ceremony followed, during which he acknowledged his crime, and he also had to pay compensation in the form of heads of cattle and goats to Akena’s family. While a high court judge took these measures into consideration as mitigating factors in the sentencing, Kanyamunyu still received a jail term. 

Awino says the African Court on Human and Peoples’ Rights should not just be a “caricature” of the ICC – it must be a custodian of such kinds of “customised justice”. 

“People may say that it’s hard to prove the existence of spirits and all, but Africa has the mechanisms for that, albeit extremely unconventional. If we were open-minded, there would be no problem with having traditional leaders, even witch doctors and oracles who are custodians of these [African traditional religion] customs, as well as scholars who’ve studied African custom and religion as amicus curiae, court assessors or people with expert opinion.”

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