Ongwen Onward to the Hague: Lord’s Resistance Army commander to face justice

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January 14, 2015

Media are reporting that Dominic Ongwen, the Joseph Kony deputy who defected last week from the Lord’s Resistance Army, will be transferred to the International Criminal Court where he stands accused of war crimes and crimes against humanity. The facts of Ongwen’s defection are slowly coming to light. It appears he either surrendered or wascaptured in battle by members of the Séléka rebel group in the Central African Republic (CAR). His original captors are now arguing that they should be entitled to a reward for handing him over to U.S. forces dedicated to tracking the Lord’s Resistance Armyalongside the Ugandan Peoples’ Defense Forces (UPDF) and the African Union Regional Task Force (AURTF), which is largely made up of Ugandan forces. It appears that Ongwen is now in the custody of CAR, which will effectuate the transfer.

This is undoubtedly the right outcome. Uganda, as a member of the ICC, has undertakencertain cooperation obligations toward the Court. Uganda will have ample opportunity to challenge admissibility and invoke complementarity if it so desires. It could win that challenge if it can show that genuine proceedings are underway involving the same conduct that serves as the basis for the charges pending against Ongwen before the ICC. The principle of complementarity is meant to encourage such domestic proceedings—an incentive that would have dissipated had Ongwen been transferred directly to Uganda. Given the uncertainty around Uganda’s domestic legal framework and its amnesty law, discussed in more detail below and here, returning Ongwen to Uganda risked impunity. Although it is not for the United States to compel Uganda’s adherence to its ICC obligations, the United States no doubt does not want to be in a position of enabling states to breach such obligations. And, even if it had wanted to, it would have been difficult for the United States to prosecute Ongwen itself. As we’ve discussed elsewhere, the United States lacks a crimes against humanity statute. Nor does its war crimes statute reach war crimes committed abroad by non-U.S. citizens against other non-U.S. citizens. Although the United States has a statute penalizing the recruitment or use of child soldiers, such charges would be potentially problematic against a person who was himself forcibly conscripted into the LRA.

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