Symposium on Dominic Ongwen Case: From Participation to Reparations – Representing Victims in the Dominic Ongwen Case

[Joseph A. Manoba is a Ugandan lawyer and Co-Counsel with Francisco Cox in the representation of victims in the case of the Prosecutor Versus Dominic Ongwen.]

The Ongwen case is in many respects a significant milestone for justice and accountability for the victims of the atrocities in northern Uganda. Dominic Ongwen is the only one of  five commanders of the Lord’s Resistance Army (LRA) indicted by the International Criminal Court (ICC) to be convicted of serious international crimes perpetrated against innocent civilians in northern Uganda. The LRA armed conflict was characterised by abduction of young girls and boys. The girls were abducted and distributed amongst LRA fighters as so called “wives” and boys as fighters. In a historic decision, the Trial Chamber of the International Criminal Court (ICC or the Court) convicted Dominic Ongwen of an unprecedented number of sexual and gender based crimes (SGBC) including rape, forced marriage, forced pregnancy, and sexual slavery. The Reparations Order issued by the judges on February 28, 2024, uniquely recognizes the extensive physical, material, moral, community, and transgenerational harm endured by both direct and indirect victims of the war. 

Representing victims in proceedings at the ICC has been simultaneously challenging and rewarding. As one of the legal representatives appointed by the Court since 2015, together with co-counsel Francisco Cox, I have experienced both the difficulties and satisfaction of representing victims who, prior to this case, lacked the opportunity or the platform to fully share their views about their horrific experiences.  

In this blog post, I will share some perspectives about the complexity of representing victims in proceedings before the Court, discuss why the Ongwen reparations decision is a significant step forward in the quest for justice and accountability for victims of Northern Uganda, and briefly highlight some of the challenges that might be encountered in its implementation.

The Challenges and Benefits of Representing Victims

Legal representation is crucial for victims to navigate the complexities of the legal process and effectively advocate for their rights before the ICC. Rule 90 of the Rules of Procedure and Evidence specifies that victims may choose to be represented by a legal representative of their choice or request assistance from the Victims and Witnesses Unit (VWU) of the Court. Rule 91 sets out the criteria for the appointment of legal representatives, emphasizing their qualifications, integrity, and impartiality. The role of legal representatives is multifaceted, encompassing legal advocacy, communication with victims, and collaboration with the Court and other parties to ensure the protection of victims’ rights and interests. 

Our formal appointment as legal representatives was confirmed by a decision of the single Judge of Pre-trial Chamber II in 2015, but the victims were regrettably  denied  access to legal aid, which posed significant financial and logistical hurdles for many who were formerly residents of Internally Displaced People’s (IDP) camps in Abok, Lukodi, and Odek. As the legal representatives, we were mandated to consult our victim clients, obtain instructions, and share information about developments in the proceedings to enable meaningful participation for victims before the Court. 

However, due to the denial of legal aid and limited resources, arranging meetings with clients became challenging. Many of our clients were unable to engage with counsel due to long distances and the residual effects of the physical harm they had suffered, hindering their ability to travel to meeting locations.

In order to ensure ongoing representation, the members of the Legal Representatives of the Victims (LRV) team volunteered their services pro bono throughout the entire year when Court legal aid was unavailable. Thankfully, due to  extensive lobby by NGOs and the efforts of Registry personnel, the situation of victims’ access to legal aid was eventually reversed allowing us as legal representatives to be covered by the Court’s legal aid scheme.

The initial deadlock regarding legal aid underscores the administrative and resource challenges frequently encountered by victims when striving to assert their right to participate in proceedings. However, at every stage of the proceedings, the involvement of victims has not only proved beneficial to them but also significantly enhanced the proceedings themselves. Participation in the trial proceedings granted participating victims the opportunity to have their views and concerns documented in the case records, including the Court’s conviction decision, the subsequent sentencing decision, and the Reparations Order, all of which extensively acknowledged their contributions. Additionally, beyond the confines of the courtroom, many victims were relieved of the psychological burden known as “survivor’s guilt”.  Prior to their involvement in the proceedings and the trust and support of the LRVs, many participating victims had endured overwhelming feelings of guilt regarding their perceived inability to prevent the atrocities committed by the LRA fighters under Ongwen’s command, as well as the harm they themselves suffered during the attacks on the IDP camps. Thus, while the court process aids in documenting the truth through witness testimonies and victims’ contributions, direct engagement with victims in the field plays a significant role in individual healing, particularly when counsel is attentive to their experiences of victimization.

Submissions

The LRVs made several submissions (preliminary submissions on reparations, further submissions, and additional submissions), including on the need for the Chamber to consider additional principles on reparations, apart from those already established by the jurisprudence of the Court, as recently adapted and expanded in the case of The Prosecutor v. Bosco Ntaganda, and the issue of prioritisation of certain victims among others. While we agreed that the ‘Ntaganda Principles’ ‘articulate a victim-centred approach geared towards repairing the harm caused to victims’, we proposed that the Chamber should modify or add other principles which reflected the specificities and contextual situation of the victims in this case. 

For example, we advocated (para 17)  that the Chamber should ensure that any lasting impacts or legacies of reparations measures that are implemented should also adhere to the “do no harm” principle. We argued (para 17)  that, for example, the long-term impact of reparations programmes implemented by the Trust Fund for Victims should not result in or lead to secondary traumatization or create/exacerbate security concerns or tensions among communities. This is primarily due to the fact that there will be potentially hundreds of thousands of people who were victims of the acts carried out by the LRA, but who will not be eligible for reparations given the narrow scope of the case which only concerns four attacks carried out by Dominic Ongwen’s Sinia Brigade in four locations. We also advocated for additional principles including the Principle of Confidentiality of Reparations (para 37)  and Principle of Access to Information on Reparations (para 38). Confidentiality at all stages of the reparation process is essential to encourage victims to come forward and protect them from further harm. Victims must also have access to adequate information on reparations to ensure meaningful participation. Outreach and awareness-raising on the right to reparation are essential.

The Chamber did not accept the need for additional principles or modification of the principles, on the basis that many of the issues which the LRVs proposed had already been addressed by other principles. Nevertheless, in relation to the ‘Do No Harm’  principle (para 50), which requires that reparation measures themselves do no harm, the Chamber underscored that while this principle had been covered by the principle of dignity, non-discrimination and non-stigmatisation, it should indeed extend further (para 63(ii)). Thus, the ‘do no harm’ principle should be understood as encompassing the need to prevent and address (to the extent possible) any potential or unintended negative effects to those who, while not eligible to benefit for reparations in the present proceedings, may have been affected by other crimes committed within the context of the same situation (para. 63ii).

The Reparations Decision

The Reparations Order in the Ongwen case is significant in many respects. It is the only such award issued by a judicial body against a perpetrator of serious international crimes against the victims in Northern Uganda. Many victims of the LRA have waited for years and to date have not received any reparations for the harm suffered as a result of war crimes or crimes against humanity perpetrated against them.

The Order represents a resounding acknowledgment of the suffering endured by victims of sexual and gender-based crimes, encompassing various forms of harm inflicted directly upon them and their children. The decision  meticulously delineates the physical, moral, material, and communal harms suffered by women and girls (paras 276 to 314), underscoring the horrifying and enduring nature of the violence they endured. Additionally, the Chamber recognized the plight of children born from forced marriages to LRA fighters (paras 315 to 332), who experienced similar physical, moral, and material hardships within coercive environments, enduring social stigma upon their return to their communities.

Similarly, former child soldiers, often abducted from their homes or en route to school, were acknowledged as both direct (paras 126-127) and indirect victims, having endured physical, moral, material, and communal harms including torture, beatings, and psychological trauma. These experiences significantly disrupted their lives, as noted by the Trial Chamber (paras 347 to 376), with enduring and long-lasting impacts.

Of particular importance is the Chamber‘s recognition of transgenerational harm (paras 408 to 413), as highlighted by expert testimonies (Dr Teddy Atim, Professor Daryn Scott Reichreter, Professor Michael Gibbs Wessells, Professor Seggane Moses Musisi) and emphasized  by the LRVs. This acknowledgment extends to individuals who, while not direct victims of the crimes, are offspring of the direct victims and may suffer transgenerational harm. This progressive stance underscores the relevance of the Ongwen case and sets a significant precedent for reparations eligibility.

However, the Chamber ought to have taken a more proactive approach and deliberately considered individualised reparations for specific categories of victims consistent with the victims’ views. This approach would align with the goal of addressing the lasting impact of the harms on victims, as the Chamber correctly acknowledged (para 772).

As it currently stands, the reparations decision fails to meet the expectations of participating victims. As previously noted, victims of Dominic Ongwen’s crimes endured substantial harm, casting doubt on whether the Chamber’s decision will be received as graciously as the conviction verdict.

Paradoxically, the symbolic €750 award (para 789)  granted to eligible victims may be perceived as a welcome gesture, albeit solely because the victim community has borne and continues to endure the lasting effects of the armed conflict and resultant harm. These victims have no alternative recourse, as no other entity has stepped in to offer this symbolic acknowledgment of the suffered harm. The likelihood that this award will address the long-lasting impacts of the harm suffered by victims is doubtful.  

Similarly, the prospect of it restoring victims to a semblance of their pre-conflict state, in which Dominic Ongwen played a significant role, is also uncertain. The proposed community-based reparations with a focus on rehabilitation, guided by consultations, are more likely to bring satisfaction to eligible victims. 

Given the significant number of victims in the Ongwen case, each with unique needs, consultation is essential to ensure the ownership of the process by the victims themselves. However, this approach may result in significant delays before the implementation of the reparations order can be realized. Unfortunately, at the time of the Reparations Order, many direct and indirect victims, as well as potential beneficiaries, had already passed away. The decision came too late for these individuals, causing frustration among many victims, and this concern persists. With the ongoing process of consultation on “community reparations rehabilitation measures” and the expected delays, it remains uncertain how many victims of the crimes, both direct and indirect, and eligible recipients for reparations will live to see its implementation.

Ultimately, the LRVs hope that the Reparations Order in the Ongwen case will serve as a catalyst for similar considerations by the Ugandan government, ensuring the inclusion of other victims of crimes who have been excluded due to the temporal scope of the ICC’s jurisdiction over such matters.