By Lino Owor Ogora
Uganda is currently the focus of two international criminal trials: that of Thomas Kwoyelo before the International Crimes Division (ICD) in Uganda, and Dominic Ongwen before the International Criminal Court (ICC) in the Netherlands. Both Kwoyelo and Ongwen are charged with committing war crimes and crimes against humanity in northern Uganda while in the service of the Lord’s Resistance Army (LRA). This has inevitably stirred debate in Uganda regarding which of the two courts is more effective, and shaped attitudes towards international criminal justice in the country.
Ongwen is currently standing trial before the ICC in The Hague. His trial began on December 6, 2016. He is charged with 70 counts of war crimes and crimes against humanity allegedly committed in attacks on camps for people displaced by the conflict in northern Uganda. The attacks took place between 2003 and 2004 in the camps of Pajule, Odek, Abok, and Lukodi. He has also been charged with sexual and gender-based crimes, including the crime of forced marriage.
Uganda’s international criminal justice sector has undergone a tremendous revolution in the last 10 years, since the Juba Peace Talks started in 2006. These talks, held between the government of Uganda and the LRA, aimed at finding a negotiated solution to the conflict that rocked northern Uganda between 1986 and 2006.
In 2004, prior to the commencement of these talks, the government of Uganda had referred the situation concerning northern Uganda to the ICC, which resulted in the issue of arrest warrants for five top commanders of the LRA. The involvement of the ICC turned out to be a complicating factor at the peace talks when the LRA delegates insisted that they would not proceed as long as the arrest warrants remained outstanding. In fact, when the Juba Peace Talks later collapsed in 2008, with the LRA leader Joseph Kony refusing to sign the final peace agreement, many people cited the ICC as one of the causal factors.
In a bid to find an alternative to the ICC, the government of Uganda floated the idea of establishing a domestic court for trying LRA perpetrators. This laid the foundation for the establishment of the ICD in July 2008 as a special division of the High Court of Uganda mandated to try the perpetrators of war crimes and crimes against humanity including commanders of the LRA and other rebel groups. When Thomas Kwoyelo, a former commander of the LRA, was captured in 2008 and charged before the ICD, the justification for establishing a domestic court seemed to be complete.
This move, however, did not remove the ICC from the equation, as the five arrest warrants remained outstanding. In 2015, Ongwen, one of the indicted commanders, surrendered. Ongwen’s trial before the ICC started on December 6, 2016 and is still ongoing.
As a result, trials for international crimes are now proceeding simultaneously at the ICC and the Ugandan ICD. This has inevitably stirred debate in Uganda regarding the relative merits of the two.
Asked if they were familiar with the two courts and the difference between them, most CSO representatives questioned made comparisons in terms of jurisdiction and the type of crimes handled.
“The ICC is an international court while the ICD is a domestic court. The ICD addresses crimes of an international nature committed in Uganda, while the ICC is addressing it at international level. The two courts handle more or less the same crimes,” said one. “The ICD deals with crimes in Uganda as a nation, while the ICC is an international criminal justice court,” added another.
“The ICC is an international court based in The Hague, while the ICD is a court based in Uganda and is used for prosecuting crimes committed in Uganda,” a human rights activist in northern Uganda said.
Asked which of the two ways of bringing the LRA commanders to trial they preferred, and which one they thought was more effective, those questioned presented varied responses. Those in favor of the ICD cited proximity to victims and increased access to justice as benefits that the domestic court had over the international court.
One CSO representative noted, “I prefer the ICD because the cases are handled here in Uganda and so both the perpetrators and victims are able to attend these court trials. The proceedings of the ICD are open to the public and the press is also part of it.”
Another remarked, “The ICD is cheaper as compared to the ICC, which is very expensive. For example, the Ongwen case is wasting a lot of resources as too much money is being spent on transporting witnesses, lawyers, and translators to The Hague.”
Those in favor of the ICC praised its efficiency and independence, a factor they felt gave it an edge over the domestic court in Uganda. As one noted, “The ICC gives me more hope in terms of the final judgement. It will not be corrupted by the government of Uganda unlike the ICD where I am sure a court case can be made to favor of the government instead of the victims. The ICC has more independence from the member countries.”
Another added, “I prefer the ICC because it is the only court that can prosecute the government of Uganda. Could anyone imagine the ICD prosecuting the government?”
“Of course the ICC is more effective in the sense that it has more quality personnel, resources, and funding, and it is more trusted both locally and internationally. The ICD has inadequate resources, which sometimes delays the process. For example, sometimes the case of Thomas Kwoyelo is put on hold because of financial problems,” said one CSO representative.
Other CSO representatives chose to take a more neutral stance. “I do not say I prefer one to the other because both are good and it depends on the level at which the crimes are committed. If you take local crimes at the local level, it might not be so easy to take someone to the international court considering all the expense, bureaucracy, and the need for local citizens’ involvement and participation. So in such a case, the ICD is the most appropriate. On the other hand, if we are looking at crimes involving many countries, then we cannot say the trial should be in Uganda.”
Another added, “I cannot say that the ICD is more effective than the ICC because they each have different mandates. The ICC cannot try cases in Uganda and the reverse is true. The only problem with the ICD is that cases are not being handled quickly, and its work has been hampered by several factors such as the pre-existing amnesty law that delayed the case of Kwoyelo.”
Asked if they thought Ongwen should be tried back home in Uganda before the ICD, instead of at the ICC, the CSO representatives questioned had different opinions. Those who supported Ongwen’s trial in The Hague cited Uganda’s international obligations under the Rome Statute as the main reason for their response. One said, “The Ugandan government is a signatory to the Rome Statute. So the Government cannot turn around now and say it wants to withdraw.”
“Ongwen is in the right court, given the fact that the Government of Uganda signed a memorandum of understanding with the ICC and handed him over to be prosecuted by the ICC,” said another.
Another added, “For justice to prevail in the greater north, I don’t think Dominic Ongwen should be brought to Uganda for trial, not even by the ICD. Assuming that court would rule at the end of the trial that Ongwen has won the case, how do you think people will react to that?”
On the other hand, those in favor of having Ongwen brought back for trial in Uganda cited the need to promote victim participation as the main reason for their responses. One said, “We need to ask the ICC whose justice they are promoting? If it is justice on behalf of Ugandan victims who suffered these violations then I would prefer that he is tried in Uganda so that justice can have a meaning to the victims, who would be able to attend hearings. Much as it is good that the trial is in Netherlands, it does not promote participation.”
“It would be better for him to be tried in Uganda by the ICD because the victims would have access to attend and follow the court proceedings as compared to the ICC which is very far away and the real victims are not given the opportunity to attend trials,” added another.
“Since Ongwen is a Ugandan who committed all the atrocities in Uganda, he should tried here in Uganda so that the victims can realize fair justice,” a human rights activist remarked.
Asked if they felt Kwoyelo should be tried at the ICC in The Hague, instead of by the ICD in Uganda, the majority of CSO representatives spoke in favor of the domestic court.
As one CSO representative said, “I would have preferred the Kwoyelo case to also be handled at the ICC. But since it has already commenced before the ICD, let it be handled at the ICD.”
Another added, “Since Thomas Kwoyelo was not among the five top commanders wanted by the ICC, it is appropriate for the ICD to try him. The ICD is complementary to the ICC and can equally do a good job”.
“Kwoyelo should be tried in Uganda because all the crimes he committed took place in Uganda. He should be tried here to prove to the world the capability and efficiency of the ICD court. Taking the case of Kwoyelo to The Hague would be a waste of resources,” added another.
Lino Owor Ogora is a peace-building practitioner who has worked with victims of conflict in northern Uganda since 2006. He is also the Co-Founder of the Foundation for Justice and Development Initiatives (FJDI), a local Non-Government Organization based in Gulu District that works with children, youth, women and communities to promote justice, development and economic recovery in northern Uganda.