Symposium on Dominic Ongwen Case: Centring Survivors in ICC Reparation Processes – The Case of Dominic Ongwen

[Alejandra Vicente is the Head of Law at REDRESS

Renata Politi is a Legal Advisor at REDRESS.]

Introduction

The recent reparation order issued by the International Criminal Court (ICC) in the case of Dominic Ongwen, a former Lord’s Resistance Army (LRA) commander convicted of 61 counts of crimes against humanity and war crimes in northern Uganda, has brought victims and survivors a step closer to reparation.

A coalition of 10 Ugandan and international organisations, including REDRESS, had urged the ICC to place survivors at the centre of the design and implementation of reparation in an amicus brief filed in 2021. 

While the ICC Chamber adopted a practical approach due to the high number of victims involved and the foreseen challenges in delivering reparation in practice, it instructed the Trust Fund for Victims (TFV), the body responsible for implementing the order, to engage with survivors throughout the process to ensure their views and proposals are reflected.

Nonetheless, the magnitude of the task faced by the TFV, with limited resources, to provide reparation for nearly 50 thousand eligible victims poses significant challenges in centring survivors in this process. 

This blog focuses on the importance of a survivor-centred approach when implementing reparation, explores the main findings of the ICC Chamber in the Ongwen case in this regard, and discusses next steps and challenges that the ICC will face to make the implementation process truly victim centred.

The Importance of Survivor-Centred Reparation

The significance of reparation being survivor-centred cannot be overstated, aligning directly with a victim’s      right to prompt, adequate, and effective reparation under international law. This approach places the rights, needs, and dignity of survivors at the forefront of initiatives to address violations. As highlighted in REDRESS’ recent Practice Note: Survivor-Centred Approach to Seeking Reparation for Torture, practitioners can take steps to ensure that reparation is responsive to survivors’ needs, aligns with the principles of do-no-harm and non-discrimination, and follows best practices in managing survivors’ expectations sensitively. It is also key to provide a holistic accompaniment and facilitate survivor participation and empowerment.

Active participation recognises survivors as right-holders rather than mere beneficiaries. It acknowledges their agency and fosters a sense of ownership, consequently enhancing the legitimacy of the process. Survivor active participation and co-creation of reparation ensure that measures are not only adequate and effective but are tailored to meet their unique needs and have a long-lasting and sustainable effect. Survivor’s engagement is also key in reducing risks of re-traumatisation. In essence, survivor-centred reparation is a pivotal element in the restoration of dignity and rehabilitation of survivors.

The ICC Order on Reparations for Victims of Dominic Ongwen

Principles on Reparation

While the ICC Chamber decided to follow the reparation principles set by the Court in the Ntaganda case, it noted the need to expand on two of those principles. 

Firstly, on the ‘Types and Modalities of Reparation’ the Chamber acknowledged that rehabilitation measures should not only be aimed at addressing medical and psychological harm, but also at improving victims’ socio-economic situation (para. 78). In this regard, rehabilitation should contribute to restoring, as much as possible, victims’ project of life, facilitating their inclusion in society. The Chamber also decided that payments which are not proportionate to the harms suffered by victims can only be regarded as symbolic, and not compensatory. Additionally, it noted that non-repetition and satisfaction measures can be appropriate modalities of reparation. 

Secondly, the Chamber expanded its principle regarding child victims to consider the age of the child victim at the time of the events, as well as their gender. The Chamber highlighted the need to be guided by the Convention on the Rights of the Child, including by taking all measures required to promote their well-being, recovery, and reintegration (paras. 79-83). 

Regrettably, the Chamber adopted a somewhat conservative approach to the issue of complementarity between international and domestic reparation processes, finding that other reparation efforts are outside the scope of ICC proceedings (para. 52). As advocated by REDRESS and other organisations, positive complementarity to actively consider how ICC reparation orders could potentially be replicated or complemented by national efforts would foster a harmonious co-existence of the different existing processes. While the Chamber did not adopt a principle on positive complementarity, it at least recognised that ICC orders are not isolated from the broader context of reparation for victims of the conflict in northern Uganda, and encouraged cooperation between the TFV, Uganda, and other relevant entities, to complement each other’s activities. It also urged Uganda to support the enforcement of the Chamber’s order (para. 53). 

Forms of Reparation for Victims

The Chamber ordered three reparation measures for victims in the Ongwen case (paras. 663-664). Firstly, it emphasised the implementation of collective, rehabilitative community-based programmes specifically tailored to address the varied harms experienced by the large number of victims. Secondly, it included a symbolic, not compensatory, award of €750 for all eligible victims. Lastly, the order incorporated community-based symbolic or satisfaction measures, encompassing apologies, memorials, and ceremonies.

The ICC’s decision to order collective community-based reparation was underscored by the overwhelming number of victims of Ongwen’s crimes, conservatively estimated at 49,772. According to the ICC, this renders individual reparation impractical for prompt implementation and the Court can only order reparation if there is reasonable assurance or at least probability of implementation. Drawing from its past experiences and taking into account the TFV’s limited resources, the ICC opted for a strategic approach which acknowledges the challenges in delivering reparation in practice, as shown by other ICC cases. 

The focus on rehabilitation programmes at the community level was informed by the multi-layered harms suffered by victims. Importantly, the Chamber recognised the severe and enduring physical, moral, and material harm suffered by direct victims of sexual and gender-based crimes (SGBC), children born of these offenses, victims of attacks in Internally Displaced Persons camps, and former child soldiers. It also acknowledged that indirect victims of these crimes experienced moral and material harm, the entire community suffered, and children of direct victims of SGBC endured transgenerational harm. On this note, the Chamber’s decision to presume children born of SGBC as direct victims is welcomed, as REDRESS’ amicus brief had emphasised the importance of recognising the transgenerational harm they suffered, along with the significant obstacles in accessing education, health, and other social services, as well as job opportunities due to their lack of identification documents.

Consequently, the Chamber determined that such programmes are the most appropriate form of reparation to comprehensively address these varied forms of harm and reach a larger number of victims. Notably, it stressed that the overarching goal of rehabilitation is to restore survivors’ independence, foster inclusion and participation in society, and rebuild or enhance their physical, mental, social, and vocational abilities. The order highlighted the necessity of designing and implementing these programmes in consultation with victims and survivors.

Finally, following the request made by victims during the proceedings, the Chamber ordered that symbolic monetary awards be prioritised over the implementation of other measures. 

Acknowledging the TFV’s lack of sufficient funds, the Chamber developed prioritisation factors in the decision, establishing that the first priority group to receive reparation should be all victims who are “in dire need or urgent assistance” to survive. The second priority group includes “vulnerable direct participating victims”, followed by all other direct or indirect vulnerable victims (para. 665). 

Next Steps: Towards a Truly Survivor-Centred Approach

While the Chamber has estimated the number of potentially eligible victims to be 49,772, it has acknowledged that other victims can still come forward. It will be for the Victim Participation and Reparations Section (VPRS) of the Registry to determine victim eligibility. This task entails significant complexity and it will require the Court to allocate adequate resources for the VPRS to conduct it effectively. 

With the TFV now tasked with implementing the ICC reparation order, it will be crucial to develop an implementation plan which takes into account best practices on survivor-centred reparation. 

To effectively include victims and survivors in this process and facilitate co-creation of reparation with survivors, several measures can be considered. Firstly, it is essential to recognise and address challenges that may prevent survivors from participating meaningfully in the process. This may require providing the necessary support, with      special attention paid to      victims in situations of exceptional vulnerability. Ensuring that survivors clearly understand their right to reparation and are aware of the scope and limitations of the Chamber’s order is crucial. Therefore, accessible, tailored informative, sensitisation and outreach sessions before and during survivors’ participation in the process can be implemented. Outreach should also target victims displaced to different parts of Uganda and others who may have sought asylum outside of the country.

Secondly, survivors perspectives should also inform the modalities for their participation in the process, avoiding preconceptions about what survivors may consider appropriate measures.

Thirdly, an intersectional and gender-sensitive approach should be adopted, considering that victims’ needs, perceptions and harms can differ. This is also important to acknowledge cultural and social sensitivities associated with SGBC. Thus, engagement with survivors should be carried out in a cultural and gender-sensitive way, with attention to potential group dynamics. 

Fourthly, survivors should be able to participate in the reparation design and implementation processes without being further exposed to stigmatisation, revictimisation, and traumatisation. 

Finally, given anticipated challenges associated with resource constraints, clear communication and management of expectations will be essential. Engagement with survivors should foster transparency and understanding regarding the limitations of the reparation process, to avoid further/potential disappointments and lack of confidence between survivors and the institutions involved, as well as within survivor groups. For this and other reasons, the significance of the process should not be underestimated as the journey towards reparation also contributes to it being truly transformative.

Additionally, the role of Uganda is paramount in ensuring the effective enforcement of the ICC reparation order. As emphasised by the Chamber, Uganda must uphold its international legal obligations as a State party to the Rome Statute. This includes collaborating with the TFV and other relevant actors to support and facilitate the effective and prompt implementation of reparation. Further, Uganda must ensure that reparation is provided to all victims of the decades-long conflict in northern Uganda. This encompasses fulfilling obligations outlined in the National Transitional Justice Policy adopted in 2019, which still awaits the enactment of legislation establishing a mechanism for the implementation of reparation. 

Finally, civil society organisations can play a critical role in supporting the VPRS and the TFV, including by advocating for fundraising efforts to ensure the successful implementation of the ICC reparation order in the Ongwen case. Initiatives can involve advocacy, capacity-building and resource mobilisation. Efforts could also focus on best practices on survivor-centred approaches, monitoring the implementation process, and providing technical assistance when needed.