Symposium on Dominic Ongwen Case: Navigating the Complexities of Reparations for Victims of Northern Uganda

[Margaret Ajok is currently the Transitional Justice Advisor at the Governance and Security Programme Secretariat (formerly JLOS), at the Ministry of Justice and Constitutional Affairs, Uganda. She is a lawyer and advocate of the Courts of Judicature of Uganda and is also a task force member for the African Union Women for Transitional Justice Network representing Africa.]

Introduction

The over two decades war in Northern Uganda between the Lord’s Resistance Army (LRA) and the Government of Uganda led to horrendous and deplorable acts of violence. The affected communities suffered enslavement, torture, death, maiming, sexual slavery, forced impregnation, rape and other forms of sexual violence primarily committed by the LRA. While there is a semblance of normalcy in the region, victims continue to bear the scars of war. Dominic Ongwen was found guilty of war crimes and crimes against humanity, specifically for murder, forced impregnation, enslavement, sexual slavery, forced marriage and other crimes, resulting in the award by the International Criminal Court (ICC) of over 52 million euros as reparations to the victims. This award is arguably the largest so far in the ICC’s history. 

While the ICC’s reparations award is an important step in repairing the harm suffered by the victims of Northern Uganda, it raises important questions concerning the responsibility of the Ugandan government to provide reparations for all the victims, and not just a limited group. According to the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law:

States should endeavour to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations – 

The Ugandan government recognizes the importance of reparation as an integral component of victims’ reintegration into society. On June 17, 2019, Uganda adopted the National Transitional Justice Policy (NTJP), an overarching framework of the Government of Uganda (GoU) designed to address justice, accountability and reconciliation needs of post-conflict Uganda. The NTJP is informed by Uganda’s national and international obligations to provide avenues for redress to victims who have suffered grave violations and abuse.

Reparations are a key component of the NTJP. The Policy identified gaps with regards to reparative measures specific to Uganda, including social services- health, education and economic support for war victims and their children born in captivity as well as the need for medical, physical, mental, social, and psychosocial redress and resolution of land conflicts among the affected communities. 

The Policy adopts five key thematic elements that should be utilized to achieve justice, peace, accountability, reconciliation and ultimately healing for the victims of armed conflict in Uganda. They include:

1. Conditional amnesties after full disclosure: Those amnestied should be encouraged to seek forgiveness from the victims to help them reintegrate into their communities and restore the broken relations;
2. Traditional justice mechanisms: These mechanisms should be formalized to recognize their contribution to justice and accountability, especially in situations where mass crimes are committed and are out of reach of the formal courts. Traditional justice mechanisms are primarily restorative and contribute significantly to ensuring accountability while promoting healing, reconciliation, and reintegration;
3. Reparations for victims: The NTJP adopts most of the internationally accepted components of reparations but places more emphasis on collective reparations. The reparation measures include rehabilitation, restitution, compensation, guarantees of non-recurrence and symbolic measures, such as apologies, memorials, and commemorations and other forms of reparations requested by victims that can be meaningful when awarded;
4. Nation building and reconciliation: These can take diverse forms including documenting comprehensive accounts of conflict, resolution of local level grievances that feed into national conflicts through dialogue and reconciliation initiatives; and 
5. Formal criminal justice processes: These include national and international criminal courts. The common law criminal justice system of Uganda does not provide for the participation of victims in proceedings, except as witnesses victim participation, however the International Crimes Division of the High Court of Uganda has adopted Rules of Procedure that allows victims to participate through their counsel.

The NTJP adopts a victim-centered approach predicated on the fact that victims need to access and participate in the process of justice and reconciliation to heal, reconcile with their communities, and reconstruct their lives. Furthermore, recognizing that conflicts engender or amplify prevailing gender inequalities and disproportionately affect the most vulnerable and marginalized groups, such as women, children, and the disabled, the NTJP actively promotes the integration of gender perspectives and prioritizes initiatives aimed at addressing the needs of children across all transitional justice endeavors.

A Complex Situation

The Ongwen reparations order has undoubtedly filled many of Ongwen’s victims with hope. However, the decision is directed to only some victims in a conflict which has devastatingly affected hundreds of thousands. This highlights the complexities of the war in Northern Uganda and the sustained impact on the victims and their communities. These complexities are epitomized by Ongwen himself, who, despite being found guilty, is emblematic of the thousands of children who were forcibly deprived of their childhoods, abducted, and coerced into perpetrating egregious human rights violations and abuses. Consequently, he carries a dual identity as both victim and perpetrator. 

The complexities of the Northern Uganda insurgency contributed to the difficult decision to grant amnesties to individuals who renounced rebellion, and to eventually negotiate peace with the LRA between 2006 -2008. This culminated in the signing of five negotiated Agreements – including the Agreement on Accountability and Reconciliation, also known as Agenda Item No. 3 which was signed on the 29^th of June 2007- by the LRA and the Government of Uganda. The Agreement obliged the Government of Uganda under Clause 14.3 to adopt an appropriate Policy Framework to implement the terms of the Agreement. The Agreement amplified the need to among other things:

1. recognise the right of victims to information, meaningful participation, and dignity;
2. provide for reparations through a range of measures that may be include rehabilitation, restitution, compensation, guarantees of non-recurrence and symbolic measures; and 
3. adopt a gender-sensitive approach responsive to the special needs of women, girls, and children.

Many of these provisions were subsequently incorporated into the NTJP.

From Promise to Implementation 

Implementing a reparations order is neither simple nor always straightforward. While the ICC was legally obligated to issue its meticulously outlined reparations order in the case of Dominic Ongwen, the tangible fulfillment of these reparations hinges not only on legal obligations but also on the moral imperative of states to contribute to the Trust Fund for Victims. 

Furthermore, given the clear commitment to reparations in the NTJP, the Ugandan government recognizes its obligation to institute a national reparations programme which would operate as an overarching framework within which the Ongwen reparations decision could be implemented. However, the actual development and implementation of such a programme is considerably more challenging than it may initially appear. These are challenges which the ICC Trust Fund will also face, including identification and verification of victims, resource allocation, prioritization of needs among others.

While Uganda has yet to initiate a comprehensive reparations programme, ongoing efforts focus on enhancing the capacity of all stakeholders within both government and civil society to strategize, allocate resources, and execute policy directives concerning reparations. Nationally, initiatives are underway to ensure criminal accountability for LRA crimes, such as the trial of Thomas Kwoyelo before the International Crimes Division of the Ugandan High Court, and the scope of the Amnesty Commission’s activities has expanded. In addition to issuing amnesty certificates to former LRA members, the Commission now extends economic and livelihood support to victim communities through agricultural initiatives and environmental conservation efforts. Acknowledging community concerns regarding perceived bias in favor of ex-combatants, the Amnesty Commission has initiated dialogues between victims and perpetrators to address these grievances. Discussions are also ongoing at the national level concerning the passage of the NTJP into law, an important step which would provide a critical framework for implementing its provisions. 

Conclusion
The Ugandan NTJP serves as a significant signal that the government recognizes the necessity for an efficient and enduring reparations program capable of addressing the extensive needs of Northern Uganda’s victims. The decision regarding Ongwen arrives at a crucial moment in the ongoing national discourse on how to implement the provisions of the Policy effectively. Nevertheless, achieving comprehensive repair and reconciliation for all victims will demand coordinated and collaborative efforts to translate commitments into tangible outcomes for those most affected by the war.