By Stephen Tumwesigye
It is in the best interests of the ICC, affected communities, and Ugandans to have the trial in Uganda
Since the surrender of Maj Gen. Dominic Ongwen in the Central African Republic, many issues have arisen regarding his trial and the pursuit for justice. Commentators of both sides of the divide have outlined compelling arguments as to why the former rebel commander should be tried by either Ugandan courts or the International Criminal Court (ICC).
I am on neither side of the divide and my preposition is a middle ground that would promote the interests of all the parties involved in this justice conundrum.
Although the Rome Statute of the ICC has innovatively introduced the principle of complementarity within the international justice spectrum, one can comfortably say that in referring the situation to the ICC, Uganda demonstrated that as a country we were unable to find and bring the Lord’s Resistance Army Commanders to justice. As a result, at this stage when the ICC has issued an arrest warrant and seized itself of the situation, Uganda may not be able to reactivate the principle unless the country convinces the court that we are now able to effectively try such crimes. Many such requests even in the existence of legislation and infrastructure may not succeed before a court that wants to prove its prosecution power.
Nonetheless, it is possible for the ICC to move the trial from its seat in The Hague where Ongwen has been transferred to a location in Uganda under what is commonly referred to as in situ trials. The Rome Statute notes that trials shall be at the seat of the court unless otherwise decided. The court has considered the issue of taking the court out of The Hague in the Kenyan situation and although the judges were not able to warrant it because of political and other considerations peculiar to the Kenyan situation, it was an important acknowledgement of the possibility.
International law experts argue that although international criminal law may include trials outside the situation country, justice remains most effectively pursued and achieved locally where witnesses, survivors and evidence actually are. Beyond this, there are many advantages that come with a trial in a situation country.
The ICC has been under immense pressure and opposition from the African continent and some of the arguments have legitimately pointed to the fact that the court just focuses on transplanting leaders from the situation countries to Europe for trial. An in situ trial would in effect project the court as a victim-centered and sensitive institution and not an instrument of neo-colonialism as many have pointed out. In doing so, the court would still take charge of the proceedings to ensure impartiality and credibility.
It has also been stated that the ICC is withdrawn from the affected communities, survivors and situation countries. In Uganda the ICC field office was closed because the situation in Uganda was ‘inactive’ and in the wisdom of the court, there was no need for further outreach. This created a lot of anxiety and unmet expectations among affected communities. A trial held in Uganda would allow affected communities to follow the proceedings, understand the importance of justice and promote accountability and healing.
More importantly though, an ICC trial in Uganda would reignite the debate on the broader question of transitional justice. Whereas, the ICC is modelled on the western style of justice bent on retribution and punishment, there are broader questions that cannot be answered by a court process. One of them is the peculiar circumstance of the blurred distinction between victim and perpetrator. The issue of what happens to a child who is abducted at a young age, is indoctrinated, goes through the stages and becomes a rebel commander may not be explored by the limitations of criminal law. This question can be answered better in a forum that embraces broader truth telling and reconciliation mechanisms which Uganda needs to explore. Although there have been proposals to have a transitional justice policy under the auspices of the Justice Law and Order Sector, the policy has been in limbo for years. This trial may reignite it for the better.
Also of importance is the question of amnesty before the national courts. Although, the ICC disregards any reference to any sort of exemptions and immunities to prosecution, the Ugandan courts still recognise Amnesty as a bar to prosecution. In fact many former LRA commanders, some of whom may have been senior in command to Ongwen have received amnesty under the extended Amnesty Act. All these issues cannot be explored in a one off trial like the one at the International Criminal Court.
The most controversial issue that many commentators leave out is the fact that the conflict in greater Northern Uganda involved two warring factions, the LRA and the Uganda People’s Defense Forces (UPDF) formerly the National Resistance Army (NRA). Although the ICC considered the situation, it is in doubt as to whether the court actually investigated crimes allegedly committed by the UPDF/NRA. Civil society groups have collected witness accounts of individuals who indicate that they were brutalised by the UPDF. A broader truth telling commission would bring to the fore these issues and remove the mutual suspicion that exists between the national army and the affected communities.
The question of the causes of the war in Northern Uganda has been explored from many angels but the most prominent has been the fact that the war could have been as a result of the failure of governance in the post-colonial state- that is Uganda. Issues regarding actual and perceived marginalization, regional imbalance and failure of state control have never been explored since the end of the war. This trial in Uganda and the subsequent coverage can lead to an honest conversation on how to fix this governance question lest it resurges into another war.
All the above can only be explored if the trial is held in Uganda. A trial in The Hague risks losing all these issues to the biased narrative of western media that is normally bent on sensationalism, victors’ justice, and simplistic reporting without touching the deeper questions.
Skeptics of in situ trials will argue that there might be issues regarding political interference, dangers with witness protection etc. All these can be nipped in the bud through an effective prosecution strategy. Besides, even trials at The Hague are still prone these same issues so it should not be an excuse.
Stephen Tumwesigye is a consulting Partner at Onyango and Company Advocates. He formerly worked as a Legal Consultant for the Uganda Coalition on the International Criminal Court.