The International Criminal Court (ICC) has recently ordered reparations for victims of Dominic Ongwen, an ex-child soldier turned commander in the Lord's Resistance Army, a rebel group that terrorised northern Uganda for two decades.
The court's order, the first in the Ugandan situation, awards collective community-based symbolic payment for each victim. International criminal law scholars Tonny Raymond Kirabira and Miracle Chinwenmeri Uche answer questions about the ruling.
Who are the victims in this case?
The victims are part of the post-war affected communities in northern Uganda. Ongwen is one of the top Lord's Resistance Army commanders charged by the International Criminal Court for war crimes and crimes against humanity committed between 2002 and 2005. The charges include attacks against the civilian population, murder, enslavement as well as sexual and gender-based violence.
Other charges include conscripting children under the age of 15 into an armed group and using them to participate actively in hostilities.
Ongwen was convicted of the crimes in 2021, and is currently serving a joint sentence of 25 years of imprisonment in Norway after his unsuccessful appeal in The Hague. When a person is convicted of more than one crime, the International Criminal Court pronounces a sentence for each crime as well as a joint sentence specifying the total period of imprisonment.
Essentially, not all victims of the Lord's Resistance Army conflict will receive reparations. This order applies only to those harmed in specific ways by Ongwen, directly or indirectly. Ongwen's victims recognised by the court included those in the internally displaced people's camps and victims of sexual and gender-based crimes. Others are children born of those crimes, and former child soldiers.
Ongwen's liability for reparations was set at €52,429,000 (US$57 million) for approximately 49,772 potential victims. But as he was already declared as indigent, the reparations will be made through the Trust Fund for Victims. This is a separate organisation from the court. It is mandated with implementation of the International Criminal Court's reparations and assistance programmes.
What does international law say about reparations in this context?
Generally, the obligation to repair harm under such a context arises from individual criminal responsibility of the person found to be criminally responsible for crimes. They are also equally liable for the reparations. But the international law has a set of non-legally binding basic principles and guidelines on the right to a remedy and reparation for victims of gross violation of international human rights law and serious violations of international humanitarian law. States may be responsible for reparations in contexts like that of the Lord's Resistance Army war in northern Uganda.
The legal dilemma is that Uganda's criminal justice system, like those of many countries in the developing world, does not have a defined victims' programme or mechanism for reparations. In that case, the alternative is to look at the existing transitional justice frameworks or policies to draw pathways for reparations.
Is there a precedent for the ICC's reparation order?
The primary guidance on reparations is derived from Article 75 of the Rome Statute. The article allows the court to make orders for the benefit of victims, including compensation and rehabilitation. The reparations order can be made directly against a convicted person, in this case Ongwen, detailing the nature and scale of reparations he needs to make. The court can equally order the award through the trust fund.
This is not the first reparations order by the International Criminal Court. There were orders in the cases of Congolese rebel leaders Thomas Lubanga, Germain Katanga and Bosco Ntaganda. The court also issued a reparations order in the case of Malian Islamist Ahmad Al Mahdi. These cases included collective reparations with individualised components. The Al Mahdi reparations process included the entire population of Timbuktu as eligible victims.
In the Ongwen case, the court used the principles of reparations set out in the Ntaganda case. But the court expanded the scope of victims as well as the types and modalities of reparations. More notable are the principles in relation to the treatment of child victims; gender inclusivity and sensitivity; and sexual and gender-based violence.
What happens next?
There are two phases to the court's practice: the judicial and administrative stages of reparations. The court issues an order under the judicial proceedings. But it works through other administrative channels in the registry, the legal representatives of victims and the Trust Fund for Victims in relation to the execution, implementation and enforcement of the reparations orders. As Ongwen's case involves individual and collective reparations, the court will monitor and oversee the implementation of the order.
Following this reparations order, we should expect to see another core judicial decision of approving a draft implementation plan submitted by the trust fund. And subsequently there will be a consideration of the trust fund's periodic reports.
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While only 4,096 victims were authorised to participate in the court proceedings, the judges envisage that there will be about 49,772 potential beneficiaries of the reparations.
The court will also be expected to review decisions by the trust fund during the administrative screening, as part of its oversight role during the implementation stage. The trust fund will carry out consultations with victims for the purposes of designing and implementing the reparations awards. This and the process and outcome of fundraising mean that the full implementation of the reparations will take years.
Uganda as the concerned state party is obligated under international law to support the enforcement of the reparation orders. So Uganda's government would be expected to go out and find people who fall under the court's order.
But the government is hesitant to single out individuals as direct victims. The Lord's Resistance Army war affected the entire northern Uganda and part of the country's eastern region. The available pathway for the government's formal engagement with Ongwen's victims will be through the National Transitional Justice Policy of 2019, which has provision for victims' reparations and other support.
Tonny Raymond Kirabira, Lecturer in Law, University of East London
Miracle Chinwenmeri Uche, Lecturer in Law, University of Westminster
