Thursday, 10 November 2016

Why Reparations Will Be Central in Determining the Success of Ongwen’s Trial

Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) has been in the custody of the International Criminal Court (ICC) since January 2015 on charges of war crimes and crimes against humanity. Ongwen’s trial, due to commence on December 6, 2016, presents the best opportunity yet for victims of conflict in northern Uganda to receive reparations but only in the event that Ongwen is found guilty.

As ICC Outreach Coordinator for Kenya and Uganda Maria Mabinty Kamara explained in a conversation, ”Reparations can be ordered by the court only after the trial is concluded and if the accused is found guilty. In such eventuality, the court may issue an order for reparations to victims of the crimes and to establish the monetary liability of the convicted person for their crimes. Reparations for victims may be individual, collective, or both. The form and manner of reparations is dependent on a number of factors including the scale and scope of the crimes in the conviction, the number of victim harmed by the crimes, and the source and magnitude of funding for reparations are among the important factors to be considered by the court when deliberating reparations.”

Setting aside that it may still take several years to come to a conclusion about reparations in the event of a conviction, as evidenced by the first ICC trial of Thomas Lubanga, this article looks at what victims in northern Uganda would ideally like from a reparations program.

Uganda as a country has been ravaged by different conflicts since attaining independence in 1962. The longest and most brutal of these conflicts has been the war between the LRA and the government of Uganda, in which Ongwen is alleged to have committed the crimes with which he is charged. However, despite the intensity of human rights violations, destruction, and loss of property that has marred Uganda’s history, there has never been a formal reparations program developed and implemented by any government.

Reparations for victims of the LRA war and debates surrounding it have always been a topic very much shunned by the current government in Uganda. Post conflict development programs, such as the Peace Recovery and Development Plan (PRDP) for northern Uganda, have been criticized for overly focusing on development programs at the expense of peace building programs that include reparations. For example, one of the most important pillars of the PRDP on peace building and reconciliation constituted only 2.7 percent of an entire budget of $606 million. Matters are not helped by the fact that Uganda lacks a reparations policy despite its violent past.

The prospect of reparations presented by the Ongwen case before the ICC is the first real opportunity that victims in Uganda will have had to benefit from a formal reparations scheme. This is why reparations will be crucial in determining the success of the trial. Already, thousands of victims have registered to participate in the trial of Ongwen, a clear sign that they are looking forward to reparations.

The UN basic principles and guidelines on the right to a remedy and reparations calls upon states to make available adequate, effective, prompt, and appropriate remedies, including reparations for victims of gross violations of international human rights law and serious violations of international humanitarian law.

Article 75(1) of the Rome Statute of the ICC stipulates that “The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”

Rule 97(1) of the ICC Rules of Procedure and Evidence further states: “Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.”

While the above guidelines and rules establish general principles on reparations, they do not explicitly provide a breakdown of the type of reparations that victims are entitled to. The ICC has started to consider and make decisions in relation to reparations in other ICC cases, but those decisions are related to the specific circumstances to each case. Therefore, the court will have to consider many different options when it comes to providing reparations for victims of Ongwen’s alleged crimes, provided that Ongwen is found guilty. The reflections below on victims’ preferences for reparations will be relevant in case of a conviction. As per the experience of other ICC cases, victims should have an opportunity to voice such preferences, through direct consultations or via their legal representatives.

The first and most important option that is frequently mentioned by community members is cash compensation, or ‘cul,’ as they refer to it in the Acholi language. While consulting with victims in the process of writing this article, all individuals who were interviewed from the communities of Lukodi, Odek, Pajule, and Abok, mentioned cash compensation as the most desired form of reparations they were looking forward to. As one community member in Lukodi said, “People want money to help them to meet their needs, such as paying school fees for their children.”

Another community member noted, “People are highly expectant that they will be paid. I cannot say how much people expect because that is a matter for the court to determine. Even if it is little, we expect that at least some money will be paid.”

The above is an indicator that while money cannot be an end in itself in undoing the harm that was suffered, many victims consider it important in enabling them to live dignified lives. Many of these victims lost their property as a result of attacks and killings that happened in their communities. In the aftermath of the conflict they have little to rely on to sustain themselves and their families. It is therefore not a surprise that most of them express interest in receiving cash compensation, which they believe is a means to living their lives in dignity.

Other forms of individual reparations that are considered important by community members are education and healthcare for survivors. As a result of the atrocities committed in their communities many children who were orphaned are finding it difficult to meet their educational needs, and many survivors still live with health complications suffered as a result of injuries they suffered. In addition, the livelihoods of many survivors were disrupted and victims recounted how they lost livelihood sources, such as cattle. These victims would like to see reparations in the form of a replacement of their stolen or destroyed property.

Victims could also benefit from programs that help them earn a living again in the affected communities, give educational scholarships for children who were orphaned, and provide a medical care for survivors who still have serious health problems. As a community leader in Abok said, “We have victims who were disabled permanently as a result of the atrocities they suffered, and they are finding it very difficult to survive. There are people who still have health complications. They need to get medical assistance.”

In addition to cash compensation and other individual forms of reparations, collective reparations schemes may be beneficial. Those would include projects such as the construction of monuments and memorials for victims who lost their lives in the affected communities. As one community member in Lukodi said, “There should be structures that benefit the community and help them to heal. These can include things like monuments or community centers where information about what happened during the conflict is kept.”

While communities like Lukodi and Odek have memorials that were sponsored by civil society organizations, others like Pajule and Abok do not have any tangible memorials. Victims may wish to have existing memorials improved or rebuilt, or to build new ones in communities that do not have any. However, as one community member emphasized, this would rank second on their list behind cash compensation: “Monuments and memorials would be good, but people prefer individual payments.”

If Ongwen is found guilty for crimes committed in the four communities concerned by the charges,  only victims from those communities would benefit from reparations programs. However, victims in other parts of northern Uganda similarly believe they are entitled to reparations. A community member from Lukodi said, “Ideally we [all victims in northern Uganda] should have all benefited because we all suffered. The challenge that I see is that the policy of the ICC may not allow it. But as community members of Lukodi we welcome the idea of all people in northern Uganda benefiting from reparations by the ICC.”

A case in point is Atiak village, located near the border of South Sudan, where over 300 civilians were massacred in a single day by the LRA. However, Atiak is not among the locations where Ongwen is charged with crimes by the ICC.  As one community member from Atiak village, who also happens to be a survivor of this massacre said, “People in Atiak should also [be] compensated… Those who say Ongwen did not operate in Atiak should tell us how they reached that conclusion. The people in Atiak are also victims of the LRA like those ones in Lukodi.”

The above indicates that victims outside the communities of Lukodi, Odek, Pajule, and Abok may be angered by their exclusion from any proposed reparations program. This is because they feel strongly that a reparations scheme must benefit the whole of northern Uganda, not just victims from the four communities Ongwen is charged with committing crimes in. Therefore, it would be important to start providing clear explanations to victims now so that they understand the limitations of any future reparations plan.

However, Kamara noted that victims outside the four communities can still benefit from assistance offered by the ICC Trust Fund for Victims (Trust Fund), which can implement assistance projects for the benefit of victims not concerned by ICC cases, i.e. victims who suffered crimes as a result of the conflict in northern Uganda from 2002 onwards but whose crimes are not reflected in the Ongwen case.

”Independent of the reparations related to a specific case, the ICC Trust Fund for Victims has spent 22.7 billion shillings (UGX) on its victim assistance program in northern Uganda from 2008 to 2016. The Trust Fund’s victim assistance program in Uganda have benefited an estimated 43,000 victims and their families and more than 200,000 indirect victims in the community. The Trust Fund implements an integrated assistance program in partnership with NGO’s to provide physical and psychological rehabilitation and material support to victims and their families in communities across 18 districts of northern Uganda,”  said Kamara.

However, should there be a conviction, Ongwen will possibly be unable to pay for reparations if he is found indigent. Reparations would therefore likely be funded through the Trust Fund, whose resources are limited. It would be important for the ICC and NGOs assisting victims to start managing expectations on reparations as early as possible. In light of the limitations of ICC reparation programs and considering the state’s obligation, the government of Uganda should also fulfill its duty to provide reparations.

There is clear evidence of the high expectations victims have in regard to reparations concerning the case of Ongwen. The fact that there has never been a formal reparations program for victims of conflict in northern Uganda further raises these expectations. For victims, it may be the only sign of a successful trial.

Lino Owor Ogora is the Director and 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.

Friday, 4 November 2016

A Reversal of Roles: How the Government and Victims in Northern Uganda Have Switched Their Positions on the ICC

Opening statements in the International Criminal Court (ICC) trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) who is charged with committing war crimes and crimes against humanity in northern Uganda, are scheduled to begin December 6, 2016. Ongwen’s trial, however, comes after several years of an uphill battle by the ICC to win support in Uganda. Having been asked to investigate the LRA for war crimes and crimes against humanity in 2004, the ICC is today openly criticized by the very government that invited it in the first place. Oppositely, the ICC now has significant support from conflict-affected communities who initially opposed it.

The ICC’s involvement in Uganda started in 2004 with a referral by the Ugandan government, asking the ICC to investigate the LRA for war crimes and crimes against humanity committed in northern Uganda. The ICC’s intervention came at a time when the conflict in northern Uganda was at its peak, with the LRA carrying out daily attacks against the civilian population, the majority of whom were living in internally displaced persons’ (IDP) camps.

Given the prevailing situation, the ICC’s entry into Uganda was met with stiff opposition from religious leaders, traditional leaders, civil society organizations, and other peace activists who argued that the ICC would interfere with ongoing efforts to end the conflict. An amnesty program was being promoted to encourage LRA combatants to abandon the rebellion, and this had tremendous success leading to the surrender of thousands of rebels. The Juba Peace Talks were also about to commence under the mediation of the government of South Sudan. The ICC was therefore seen as a destabilizing factor that would increase the LRA’s resolve to continue with rebellion.

Despite the above negative sentiments, the government of Uganda went ahead and referred the situation in the country to the ICC. The announcement of the decision to begin an investigation by the ICC was made at a joint press conference convened by the ICC prosecutor and attended by President Museveni, in London on January 29, 2004. The ICC relied on the government for gathering evidence and making decisions on which LRA commanders to prosecute, and the government cooperated with the court’s requests. For example, during Ongwen’s confirmation of charges hearing, the prosecution relied heavily on radio communication interceptions gathered by the national army, Uganda People’s Defense Forces (UPDF).

Backed by the government on the one hand, but opposed by conflict-affected communities on the other hand, the ICC met a hostile reception, particularly in northern Uganda. In response, the ICC’s then-Public Information and Dissemination Section (PIDS) in Uganda heavily engaged in a public relations campaign aimed at promoting an understanding of the ICC and changing public perceptions. Numerous community visits were made, hundreds of radio talk shows were conducted, and several information sessions were held. The people in northern Uganda slowly came to appreciate the ICC and what it stood for.

The return of peace to northern Uganda further helped to change community perceptions about the ICC. More than ten years ago when they virulently opposed the ICC, the conflict in northern Uganda was at its peak, and thousands of people were confined in IDP camps. The people in northern Uganda simply wanted the conflict to end and viewed the ICC as a destabilizing factor that would disrupt the ongoing peace processes. With the end of the fighting, however, many survivors became willing to support accountability processes.

The capture of Ongwen is perhaps another factor that played a role in further changing community attitudes about the ICC. When the ICC intervened in 2004, nobody believed it was possible to capture the LRA top leadership, who had evaded the Ugandan army for close to two decades. Many people who wanted peace were quickly disappointed when they discovered that the ICC had no army and relied instead on the government. With the capture of Ongwen and a trial actually in the offing, the trust of many people in the ICC has been restored. Many victims now look forward to reparations in the event that Ongwen is convicted.

Far from the hostile reception it received in 2004, the ICC today enjoys a much higher level of popularity, demonstrated by a show of public support from local leaders, civil society organizations, and conflict survivors. For example, on May 19, 2016, Rwot David Onen Acana II, the Acholi Paramount Chief publicly expressed support for the ICC at a ceremony commemorating the anniversary of the Lukodi massacre. The support for the ICC has also been demonstrated by the mass registration of thousands of victims to participate the trial of Ongwen.

The government of Uganda, on the other hand, has turned into a bitter critic of the ICC. Contrary to the cooperation exhibited in 2004, the government is one of the biggest critics of the ICC today, not just in Uganda, but in Africa as a whole. Indeed President Yoweri Kaguta Museveni, who led efforts to invite the ICC in 2004, has recently been one of the foremost opponents of the court. But why?

The first reason has to do with the question of why the government called in the ICC in the first place. Some proponents, in what has been referred to as the politics of the ICC, have argued that the government referred their situation to the ICC not because they wanted the LRA prosecuted, but because they had failed to defeat the LRA. The government’s strategy at the time was to isolate the LRA in the face of the international community. The government was never genuinely interested in prosecution of the LRA.

The second factor lies in Uganda’s fear of a possible ICC intervention in the future as a result of the deteriorating political situation in Uganda. President Museveni has been in power for over 30 years, facilitated by a repeated amendment of the constitution and a violent crackdown of the opposition. In the run up to the last presidential election, held in February 2016 and thereafter, the government used extreme force to suppress the opposition. The current situation points to a future where crimes against humanity are inevitable as the government, through police brutality, suppresses any opposition, a factor that will put Uganda on a collision course with the ICC. Uganda’s attempt to distance itself from the ICC could therefore be in a bid to avoid a scenario of the Kenyan situation when the ICC intervened following the post-election violence in 2007. Although a formal withdrawal from the ICC would be the only way to more effectively avoid future ICC interventions.

Matters are also not helped by the wave of unpopularity against the ICC that is currently taking hold across the African continent. African states, led by the African Union (AU) believe that the ICC is a biased institution focusing only on the prosecution of African leaders. This is demonstrated inter-alia by repeated demands from African states that immunity should be granted for sitting heads of state. As an act of defiance against the ICC, many African ICC member states have allowed Sudan President Omar Hassan Ahmad al-Bashir, who is wanted by the ICC for war crimes, crimes against humanity, and genocide, to travel freely to their countries rather than arresting him. Most recently on October 18, 2016, Burundi’s parliament passed a resolution for the country to withdraw from the ICC. In the days following Burundi’s decision, both South Africa and Gambia also formally communicated their intention to withdraw from the ICC.

Uganda, as a key player in the African Union, has also been vocal in criticizing the ICC. At the swearing in ceremony of Kenyan President Uhuru Kenyatta on April 09, 2013, President Museveni referred to the ICC as an institution that was being abused by western powers to promote their agenda. In a show of opposition to the ICC, President Museveni invited President Al-Bashir to Uganda for his inauguration in May 2016, where he called the ICC “a bunch of useless people.”

As the ICC prepares to commence the trial of Dominic Ongwen in December, it remains to be seen how it will deal with hostility from the Ugandan government. The government of Uganda’s support is critical in ensuring the success of the trial of Ongwen and any future trials that the ICC may hold for the other LRA commanders who are still at large. The outcome of the trial and whether or not victims get reparations will also be a key determinant of the ICC’s popularity with conflict-affected communities.

Lino Owor Ogora is the Director and 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.

Tuesday, 1 November 2016

The Importance of Comprehensive Outreach in the Case of Ongwen and the Role of Civil Society Organizations

On December 6, 2016, the International Criminal Court (ICC) will commence the trial of Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA) charged with committing war crimes and crimes against humanity in the villages of Lukodi, Odek, Abok, and Pajule, in northern Uganda. A key factor that will be significant in ensuring awareness and understanding by victims and the general public in Uganda will be community outreach.

Since the court opened its investigation in 2004, the ICC field office in Uganda has been involved in conducting outreach in the northern part of the country to educate the population about the ICC and how it operates. After the capture of Ongwen in 2015, the ICC field office intensified their outreach activities in the four locations where Ongwen is accused of committing crimes. While the bulk of outreach in northern Uganda has been conducted by the ICC field office, it receives support from local, national, and international Civil Society Organizations (CSOs) working in LRA affected areas. With the commencement of Ongwen’s trial, outreach may need to be conducted on a wider scale and done more frequently to ensure that the people living in affected communities, as well as throughout northern Uganda, are regularly updated and are able to follow proceedings. Community outreach visits and information dissemination over mass media will also be required.

In a conversation I had with Maria Mabinty Kamara, the ICC Outreach Coordinator for Kenya and Uganda, she noted that “outreach impact in the field is significantly enhanced when its communication efforts are complemented by CSOs, local leaders and other influential opinion leaders.” CSOs are well positioned to reinforce the ICC field office, particularly in providing the additional human resources that are needed. As Kamara commented, “Following the ICC Registry revision, field offices are staffed [with] multidisciplinary teams comprising four staff that are charged with the responsibilities of conducting outreach and victims’ participation related activities in Uganda. Field outreach staff members are not always present in all locations in the affected communities.”

CSOs can be key in ensuring that that there is an adequate, accurate, and timely information flow to and from grassroots communities using the appropriate and available channels. This is important because Ongwen’s trial is the first involving a senior commander of the LRA, so extra attention is anticipated locally and nationally.

As demonstrated by previous events, such as Ongwen’s confirmation of charges hearing, CSOs can help mobilize the local population and ensure that events are culturally relevant. As Kamara noted, “During the recent outreach activities organized to prepare the ground for the implementation of victims’ participation application process, through partnerships with various CSOs and local community networks, a total of 31 forums that reached 14,000 potential victims were held. As a result, over 2,000 application forms were collected.  In conclusion, when and wherever it is possible, we are already working through partners to complement our limited capacity.”

The need for the involvement of CSOs in outreach is further reinforced by the fact that many are already involved in working within conflict affected communities in northern Uganda, implementing programs on peace-building and other justice related matters. Such CSOs interface with these communities as they go about implementing their program activities. As these CSOs interact with communities in their routine work, they can be instrumental in updating them about what is happening in the trial of Ongwen. CSOs will therefore need to consider holding information sessions about the trial in the course of their work. Kamara explained that “it is crucial for CSOs that are readily available on the ground, through their various justice and human rights programs, to complement our efforts by providing factual information about the judicial processes to their communities.”

Using these information sessions, CSOs can help provide answers to questions that community members may have. The frequent presence of CSOs in communities can ensure that there are always opportunities for community members to ask questions, receive answers, and in the process clarify misperceptions that exist.

Furthermore, as demonstrated by cases such as the first ICC trial of Thomas Lubanga, trials can turn out to be long, often spanning many months or several years, a factor that could lead to loss of interest on the part of communities. CSOs are vital in ensuring that there is sustained interest by victims and community members in the trial process.

CSOs can also be instrumental in helping to manage expectations of community members. At the moment, thousands of victims have registered to participate in the case of Ongwen, and they may expect reparations at the conclusion of the case. These expectations need to be managed, especially in terms of the time any reparation order from the ICC may take. Given their frequent presence on the ground, and the fact that many of them have formed strong personal relationships with victims living in conflict-affected communities, CSOs are needed to inform the community of what they can or cannot expect out a future reparations scheme.

CSOs can also act as gateways to conflict-affected communities in northern Uganda. With the start of Ongwen’s trial, northern Uganda, and more specifically the four communities of Lukodi, Odek, Pajule, and Abok, are likely to attract hundreds of visitors, researchers, and academics. In 2010 when Uganda hosted the ICC Review Conference in Kampala, visitors who came to attend the conference also visited communities in northern Uganda that were impacted by the conflict. With CSOs present on a daily basis in these communities, they can act as a vital link and gateway to visitors who would want to visit these communities.

In many cases outreach is more effective if there is involvement of all relevant stakeholders, including community based organizations, local leaders, and community members. This ensures that there is ownership of the outreach process and that the right locations and the right participants are selected. CSOs, based on their frequent interactions with community members are vital in ensuring that there is local involvement and that the right locations are targeted.

CSOs also provide good avenues for referrals for victims who may not be covered by ICC reparations schemes or assistance offered by the Trust Fund for Victims. This is because in the course of conducting outreach, it is common to come upon cases of victims requiring immediate assistance, such as medical care or even protection. While the ICC outreach office may not be in position to help these victims immediately, CSOs can often use their networks to refer such victims for assistance.  It is therefore a strong reason for the ICC field office to involve CSOs in outreach sessions.

Finally, CSOs are critical in ensuring the sustainability of outreach activities in the event that the ICC’s mandate comes to an end. For example, prior to the capture of Ongwen in 2015, the ICC was in the process of scaling down its operations in Uganda and moving its offices to Nairobi. As part of its exit strategy, the ICC was relying on CSOs to continue conducting outreach in northern Uganda. With the LRA still at large in the Central Africa Republic and the Democratic Republic of Congo, there will be need for outreach in Uganda even after Ongwen’s trial is concluded. CSOs can help step in to fill the vacuum created by the departure of the ICC.

The involvement of CSOs in outreach, however, also presents certain challenges. In the first instance, there is the risk of CSOs being perceived as doing the ICC’s work. In other words, the involvement of CSOs could create less pressure for the court to fulfill its obligations in undertaking outreach activities. Additionally, with the hostile climate towards the ICC in some African countries, it can be dangerous to be seen as affiliated with the court. Each CSO therefore needs to make an assessment about how it undertakes its activities in light of this, if they are concerned about maintaining their independence. This is a matter not to be taken lightly.

Another challenge could relate to ensuring that there is harmonization of information. This is because if outreach is being conducted by many stakeholders, then it is likely that information disseminated may not be uniform. In addition, sometimes there are messages that the ICC needs to deliver itself, while sometimes CSOs and community members may want to “detach” themselves from certain messages so that there’s no perception that they agree or support a certain development or decision. In relation to this, CSOs may want to take positions on certain matters and that may be incompatible with neutral outreach activities. Finally, in some contexts, CSOs may contribute to raising expectations rather than managing them.

The above challenges point to the fact that while the ICC may need to work closely in collaboration with CSOs to ensure that outreach is well coordinated and achieves the intended impact, it must also at times respect the independent nature of CSOs. However, as demonstrated above, CSOs in in northern Uganda could play a role in outreach activities and the benefits of involving them in can outweigh the challenges. With the start of Ongwen’s trial looming closer, CSOs will be vital in ensuring that there is comprehensive outreach.

Lino Owor Ogora is the Director and 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. The opinions expressed above do not necessarily reflect the views of Open Society Justice Initiative.