Symposium on Dominic Ongwen Case: Four Approaches at the “Centre” of Reparations in the Case of Dominic Ongwen

[Lorraine Smith- van Lin is the Founder and Executive Director of Tallawah Justice for Women e.v, a non-profit association which works to connect, empower and amplify the voices of women leaders of survivor and grassroots organisations.]

Introduction

The reparations decision in the case of Dominic Ongwen, a former commander  of the Ugandan rebel group, the Lord’s Resistance Army (LRA) on February 28, 2024, marks another historic first for the case. Ongwen was convicted in February 2021 of 61 counts of war crimes and crimes against humanity and was the first ICC case to enter a conviction for the other inhumane act of forced marriage and for forced pregnancy as a crime against humanity. The over 52,000 euros reparations award is the largest-ever issued by the Court and the first time that any judicial body, national or international, has granted reparations to the thousands of victims of the atrocities committed in Northern Uganda.

The Ongwen case has succeeded in pushing the boundaries concerning how reparations processes should be approached and what should be taken into account in designing and implementing reparations centred on human rights principles. Similar to the Reparation’s Order in the case of Bosco Ntaganda, the Ongwen judges applied several human rights principles including  non-discrimination and ‘do no harm’ and stressed the importance of gender-inclusive and gender-sensitive reparations. In addition, both cases developed key principles concerning victim-centred and child-centred approaches to reparations. Parties to the proceedings also made important submissions to the Chambers concerning other approaches that should be applied by the Chamber.

This post will examine four approaches to reparations that have either been advanced in submissions by the parties to the proceedings, or in the reasoning of the Chamber:  namely, the victim-centred approach, the child-centred approach, the family-centred approach and the government-led and people-centred approach. The post will consider the likely challenges, limitations and possibilities of each.

The Victim-Centred Approach

The Ntaganda and Ongwen cases have significantly embraced the inclusion of victim-centred approaches to justice and reparations. A victim-centred approach places the victim at the centre of design, informed decision-making and co-implementation of reparations programmes. As extensively elaborated in the contribution of Alejandra Vicente and Renata Politi in this symposium, and in the ASF et al amicus submission, victim-centred approaches to justice and reparations must ensure that active and inclusive participation by victims is  ‘adequate’, ‘effective’ and sustainable. Thus, as the Chamber noted, consultations and outreach activities should be designed to take into account the victims’ needs, ‘including sensitivities associated with sexual violence’ and different ‘obstacles that victims may face in coming forward (para. 64). 

In the Ugandan context, ensuring an effective, victim-centred approach to reparations will be a difficult, time and resource-intensive process. The necessary exclusion of victims unconnected to Ongwen’s crimes and the lack of a national reparations programme to fill the gap, creates an unfortunate hierarchy of victims  which unfortunately ‘others’ the vast majority of victims. Community sensitisation and victim-centred outreach will be key to averting tensions between diverse groups and communities. 

In addition, many victims have since relocated and some live in remote villages away from urban centres. With only 6 months to produce a draft implementation plan, the Trust Fund for Victims (TFV) will be challenged to respect the Chamber’s instructions to ensure that consultations are conducted in compliance with the Principles on Reparations, including guaranteeing their accessibility and meaningful participation and taking into account any obstacles victims may face in coming forward and expressing their views (para 799). The TFV has been operating in Uganda for several years through its assistance mandate and is therefore familiar with many of the logistical hurdles that may impede victims’ engagement in the reparations process. They should nevertheless work closely with a broad range of local grassroots organisations to ensure broad and inclusive participation in the consultation and implementation processes.

The Child-Centred Approach

The crimes committed by Dominic Ongwen and the LRA have had a significant impact  on children. In recognition of the extensive harm to children, the Chamber adopted a child-centred approach to its decision, modifying the Ntaganda child victims principles to be more contextually relevant to the Ongwen case.  In addition to the children (boys and girls) who were recruited at a young age as child soldiers to commit crimes in the protracted war, the Chamber found that the children born out of the crimes of forced marriage, forced pregnancy, rape, and sexual slavery, qualified as direct victims, as the harm they suffered was a direct result of the commission of these crimes. This designation of the children born of rape as direct victims of the crimes serves as an acknowledgement of the harm suffered and a measure of satisfaction for this category of child victims.

Guided by the principles in the Child Rights Convention the Chamber recommended that reparations programmes for children who have experienced international crimes should assist them to gain access to all of their rights including birth registration,  basic health, education, and social welfare in order to fully participate in their recovery and reintegration into society (para.83). The issue of birth registration for children born of war in Uganda is one which goes to the heart of their identity and belonging at a national and cultural level, but also impacts their legal right as Ugandan citizens. As noted by the International Center on Transitional Justice and the Uganda Victim Foundation and research conducted in 2018 by the Justice Law and Order Sector in Uganda, for children born in LRA captivity, the lack of sufficient information to prove their birth renders these children undocumented and exposes them to the risk of statelessness and denial of benefits to which other citizens are entitled. There is therefore urgent need for amendment to Ugandan laws and policies in this regard. 

A child-centred approach to reparations is a welcome development in the jurisprudence of the ICC. In December 2023, the Office of the Prosecutor updated its Policy on Children, in acknowledgment of the fact that ‘children’s atrocity-related experiences and their role as key stakeholders in the accountability process is largely overlooked or ignored.’ In 2023, the ICC judges issued arrest warrants against Russian President, Vladimir Putin and Ms Lvova Belova which included charges of unlawful deportation and unlawful transfer of children from Ukraine to the Russian Federation. Judicial focus on crimes against and impacting children is likely to become more relevant at the ICC and the Ongwen approach is likely to inform how future Chambers deal with cases involving children.

Most of the child victims in the Ongwen case are no longer children under the age of 18 years. The majority are young adults in their twenties or older. Thus, a child-centred approach to reparations will effectively be a youth-centred approach which encompasses the perspectives, needs and interests of children, teenagers and young adults. But the role of youth should not be as passive observers. As the United Nations Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence (Special Rapporteur on Reparations), Fabian Salvioli noted in his report, “ in the past, young people have been predominantly treated as passive recipients of assistance or as victims, while their role as agents of change and key prevention actors has been mostly sidelined” (para. 43). It is crucial that these children (depending on their level of maturity) and youth are fully involved in the design and implementation of the reparations programmes for their benefit. 

The “Family-Centred Approach” 

The use of a ‘family-centred approach’ to reparations was also discussed in the decision. Family-centred reparations may be described as reparative measures designed to address the harms inflicted on families as a result of historical injustices and human rights violations. Unlike traditional approaches that focus solely on individual victims, this paradigm recognizes families as cohesive units that experience collective trauma with potential intergenerational repercussions. It seeks to restore not only the rights and dignity of individuals but also the social fabric and resilience of affected families.

In its submissions to the Trial Chamber, the TFV contended that, given the specific circumstances of the Ongwen case, the Chamber should revert to a family-centred approach for both determining eligibility and implementing reparations. The TFV suggested that employing a family-centred approach in identifying and validating victims, as well as delivering rehabilitative services, could facilitate access for marginalized victims, such as survivors of sexual and gender-based crimes (SGBC) and their children, as well as former child soldiers, who may gradually come forward (para. 14-15). 

In response, the CLRV noted that while she supported a proposal aimed at facilitating the inclusion of family members, she does not fully comprehend the purpose of the proposal related to a “family-centred approach” in identifying and verifying victims “for easier access [to the ones] who are ostracised”. The CLRV noted that “victims of SGBC and their children, or former child soldiers, will not be easily reachable through their family precisely because many of them have been ostracised for so long.” The CLRV was also concerned about the impact of such an approach on the potential exposure and disclosure of information that victims may have kept secret to members of their families.

In principle, a family-centred approach to reparations which takes into account the significant harm to families and communities is welcome. However, given the particular context of Northern Uganda where many of the victims have been rejected by their families, or may only be able to trace the next of kin on their mother’s side, clarity is required. Applying a family-centred approach to identifying and verifying victims, for example, children born in captivity, may open deep-seated wounds and serve to reinforce unequal power dynamics. As Fatuma Abiya, contributor on this symposium noted, the stigma and rejection of family members contributed to the psychological trauma experienced by children born in captivity. 

A family-centred approach would be important in relation to the proposed reintegration of victims into their families and communities and the restoration of community trust and values. It would be useful for the TFV to offer greater clarity on this approach in its forthcoming draft implementation plan, particularly if it intends to incorporate it as a strategic component in implementing reparations in the case.          

The “Government-Led But People Centric” Approach

Another approach referred to in submissions in the case was the ‘government-led but people centric’ approach to reparations. In its detailed amicus curiae submissions concerning the modalities of reparations, the Ugandan government submitted that, given the communal rather than individualistic structure of Ugandan society, “a reparations award should balance the direct harm individuals suffered with a structure that is ‘Government-led but people-centric’.” (para. 25). The government referred here to a collective reparations award.

Government-led reparations programs usually refer to initiatives established and administered by the state or governmental authorities to provide reparative measures for human rights abuses, conflict or other forms of injustice. The Ugandan government has admitted that no formal reparations have been paid to victims of the LRA conflict to date, as its judicial system does not have a victims’ programme through which reparations can be paid. Despite several government-lead development and national assistance programmes implemented in the war-affected regions, none of these amounted to reparations for the victims (para. 39). For several reasons, including concerns about corruption expressed by civil society organisations, here (p. 29) and here (para. 22), government leadership in the implementation of the reparation’s award made by the ICC to Ongwen’s victims would be a complex and difficult issue that may not be acceptable to everyone, 

The ICC judges have made it clear that the TFV is to take the lead in designing and implementing the community-based reparations programme and the government is to lead on areas that are its responsibility. The TFV is mandated to “design community-based rehabilitation programming that can reach a large number of victims in a less resource intensive manner” (para.618).  However, the Chamber stressed that the TFV should stay clear of “projects which would otherwise be the responsibility of the Government such as building and staffing hospitals, museums, or other infrastructure projects,” as these are “first and foremost the responsibility of the Ugandan government.”(para. 619).

 The question is, can any community-based reparations programme implemented by the TFV be truly sustainable without government support? Unlikely. Government collaboration and support will be required to ensure that any programme implemented by the TFV is successful and sustainable. After all, the TFV has limited resources which it raises primarily through fundraising and it is not feasible to expect it to oversee projects for the long term. 

However, there is an area where government leadership is urgently required, namely the  establishment of a national reparations programme under the national Transitional Justice (TJ) Law which would complement any award made by the ICC. The government’s submission does not refer to the National TJ Policy which was passed in June 2019 after more than a decade of discussions. A draft TJ Bill (July 2019 version) provides for reparations but it has not yet been passed into law.  Thus, it is still unclear when and how the government intends to  address the gaping reparative justice gap in the North. 

The government also proposed a “people-centred” approach to reparations? According to the report of the Special Rapporteur on Reparations, people-centred reparations prioritize the needs, rights, and agency of victimised individuals and communities. Unlike traditional approaches to reparations, which focus primarily on material compensation or institutional reforms, people-centered reparations emphasize the direct involvement and empowerment of affected individuals and communities in the design, implementation, and monitoring of reparative measures (para 19-22).

A national reparations program provides the ideal framework for implementing people-centred approach to reparations. The Ongwen reparations decision and the subsequent implementation process provides a unique opportunity for the government to accelerate the passage of the Transitional Justice Bill and implement a comprehensive reparations programme which is complementary to the Ongwen reparations order. 

Conclusion

The emphasis on victim-centred and child-centred approaches to justice and reparations in Ongwen represents a significant step forward in efforts to comprehensively address the harms suffered by victims in that region. By applying human rights principles, building on and adapting the Ntaganda principles to fit the Ugandan context, the Chamber has also ensured that these approaches are not merely theories but are contextually relevant. Implementation of a ‘family-centred’ approach as proposed by the TFV, though important, requires careful consideration given the nuances of the Northern Uganda conflict and the particular situation of victims of SGBC and their children born of war, cultural, community and other power dynamics. The government’s proposal for a ‘government-led and people-centric’ approach to collective reparations in Ongwen should be directed at establishing a national reparations programme that can address the challenges faced by the entire victim community.