By Okot Nyormoi, editor and author of Burden of Failure

Ongwen on trialOn February 4th, 2021, Dominic Ongwen, a former child soldier and commander of the Lord’s Resistance Army (LRA) was convicted by the International Criminal Court (ICC) on 61 of 70 counts of war crimes and crimes against humanity. The crimes include murder and attempted murder, rape, sexual slavery, forced marriage, torture, enslavement, outrage upon personal dignity, conscription and use of children under the age of 15 to participate actively in hostilities, pillaging, and destruction of property and other crimes. Having pleaded not guilty to all the charges, Ongwen is appealing his conviction. At the speed with which the ICC cases move, it is anyone’s guess when the proceeding will be concluded.

The relatively modern idea of establishing a system of justice to punish and prevent war crimes came in the aftermath of World War II. The idea was nurtured to fruition in 1998 when the Rome Convention was adopted by the United Nations Organization. The convention was ratified and became the International Criminal Court (ICC) which sat for the first time at the Hague, Netherlands, in 2002.

Initially, expectation was high that the ICC would do lots of good for a world ravaged with wars big and small. The ICC is now 23 years since its founding and 19 years since its implementation. It is fair to ask if the ICC has met the initial expectations.

It was apparent from the very start that the ICC was sailing into troubled waters when some of the countries which were self-conscious of criminal liabilities refused to sign or ratify the convention. They included the USA due to its invasion of Iraq, Russia and its inversion of Ukraine, India for its war disputed possession of Kashmir, China for its alleged suppression of the Uyghur muslims, and Israel and its occupation of Palestine.

Regardless of these and other complications, cases were referred to the ICC by either member countries, the UN Security Council or the prosecutor for investigation of possible crimes. Some accused individuals like the former President of Liberia, Charles Taylor, Al-Mahdi of Mali and Ntaganda of the DRC were convicted and jailed whereas others like Laurent Gbagbo of Ivory Coast and Bemba of CAR were acquitted. Former President al-Bashir of Sudan was issued with a warrant of arrest but was never arrested till he was deposed from power. Referrals of President Kenyatta and his Vice President, Ruto, were withdrawn without any investigation. All these cases are cited here to show the complexity of the terrain the ICC must navigate to bring justice to victims of crimes against humanity.

To return to Dominic Ongwen’s conviction, my heart aches for all the victims of the 20 year war: abducted children, those who perished in the concentration camps, those who were killed in battle, etc. No amount of action will ever replace what are lost. Nevertheless, we must ask, in the context of the ICC notion of justice: did Dominic Ongwen get what he deserved, or did he get a raw deal?

Child soldierTo answer this question, it is important to remember that Ongwen was abducted by the LRA when he was only 9 years old, and he grew up literally in the bush from where he allegedly committed all the war crimes. Given the circumstances of his unenviable life, should he be held responsible for what he did?

This is a tough question to answer. It is easy to think that he should not be held responsible for crimes he committed when he was still too young to know right from wrong, whereas he should be held accountable for the crimes he committed as an adult. Even so, it is difficult to draw a clear line between the two when one considers that growing up is a process. What one learns in one’s early life will affect one’s view of what is right and wrong as an adult. If so, how can we be sure that whatever Ongwen learned when he was underage in the bush did not influence his world view as an adult, especially when he had limited interaction with the normal outside world? From that perspective, it seems that he is being victimized twice, once having been kidnapped and deprived of his normal childhood and now for doing evil things based on what he was taught to do.

What throws the anticipated impartiality of the ICC into doubt is the apparent selectivity of cases to indict according to how it suits certain interests. TheCommander Ongwen record shows that only the small fish and vulnerable leaders are indicted whereas the big and strong ones who issue orders to commit war crimes are rarely touched. This is made possible by the very nature of the ICC in which the court is supposed to be supplementary to the national courts and it is the leaders of member states who give permission and facilitate ICC investigation of crimes committed in their own territories.

The lack of independent and effective authority to bring charges, investigate and prosecute all cases renders the ICC ineffective. Such a situation does not inspire confidence in the ICC’s function as a court of last resort.

In the case of Uganda, both sides in the 20-year war are known to have committed crimes against humanity. Moreover, the government was known to have allowed the war to fester for years for its own political, financial, military and material benefit when it could have ended it through a negotiated settlement. Yet only leaders of the LRA have been charged with crimes against humanity while the leaders of the 35-year old government of Uganda who were responsible for orchestrating war atrocities were left free to commit more crimes against humanity with impunity.

War victimDoes an ICC conviction as that of Ongwen really bring true justice to the victims and to the satisfaction of the rest of the world? Given the weaknesses of the ICC, and oftentimes the refusal of the accused to plead guilty, the answer is no. Lives and property lost can never be brought back. While the convicts may be in jail, the ones who are not jailed and are known to the victims will always be constant reminders that justice has not been served.

Furthermore, there are always underlying causes of wars. Does sending individuals to jail really solve the problem which prompt wars in the first place? For example, while the shooting war in northern Uganda has stopped, marginalization and its attendant problems are still very much alive.  

Punitive justice ends with the perpetuator going to jail while singing not guilty as if to deny the victims some satisfaction of retribution. An alternative option to punitive justice is restorative justice. Advocates believe that this form of justice is better because it allows the perpetuator to accept responsibility, reconcile and become rehabilitated in the community.

In the case of northern Uganda, Acholi society where Ongwen comes from, practice a traditional restorative justice system called “mato oput” in which the perpetuator must accept responsibility for his or her crimes, seek forgiveness and commit to reconciliation and rehabilitation. Could this be culturally more appropriate system to be used in Ongom’s case than the apparently unsatisfactory punitive justice system which the ICC has used?