By Susan Kendi
Former Lord’s Resistance Army commander Dominic Ongwen has been sentenced to 25 years in prison for war crimes and crimes against humanity.
In a majority decision, Trial Chamber IX Presiding Judge Bertram Schmitt and Judge Péter Kovács agreed to send away the former warlord for 25 years. However, dissenting Judge Raul Cano Pangalangan proposed a joint sentence of 30 years, saying the shorter term was “not adequate” for the crimes Ongwen had committed.
The judges said they had considered imposing a life sentence on the former child soldier-turned-warlord, but dismissed it as excessive.
Instead, the judges gave 61 individual sentences for the 61 crimes Ongwen had been convicted of. The joint sentence is the actual penalty imposed on the former warlord.
“All things considered, from the perspective of the extreme gravity of the crimes committed by Dominic Ongwen, including the degree of his culpable conduct, a joint sentence of life imprisonment would surely be in order in the present case. Upon due consideration of all relevant circumstances, the Chamber has, however, decided not to sentence Dominic Ongwen to life imprisonment…” read Judge Schmitt.
Judges Schmitt and Kovács cited the complexities of the case, including the fact that Ongwen was also once a victim after his abduction by Lord’s Resistance Army (LRA) when he was only nine years old, as having a bearing on their decision.
“The Chamber is confronted in the present case with a unique situation of a perpetrator who willfully and lucidly brought tremendous suffering upon his victims, but who himself had previously endured grave suffering at the hands of the group of which he later became a prominent member and leader…. The circumstances of Dominic Ongwen’s childhood are indeed compelling, and the Chamber cannot disregard them in the determination of whether life imprisonment represents the just sentence in the present case.”
In a separate five-page opinion, Judge Pangalangan explained why he proposed a higher sentence, insisting that Ongwen’s personal background should not overshadow “the deep and permanent” physical and psychological harm caused to the victims and their families.
“Setting the joint sentence at 25 years, rather than at the statutory maximum of 30 years, would, in my view, fail to give due weight to the victims’ suffering, which, in the context of mass atrocity crimes, is certainly no less than if crimes such as murder, rape, torture are committed as ‘ordinary’ crimes. The scale and cruelty with which these crimes were committed in this case are not outweighed by the sad twist of fate of Dominic Ongwen’s abduction and conscription as a child soldier,” he said.
In written and oral submissions, the prosecution had recommended at least 20 years of imprisonment while the legal representatives of the victims wanted him to be imprisoned for life. Ongwen’s lawyers requested a maximum of 10 years in prison, adding that he should undergo mechanisms of Acholi traditional justice, mato oput.
The rite entails the drinking of a bitter potion made from the leaves of the oput tree, and forgiveness and reconciliation between the victim and the perpetrator.
However, the trial chamber dismissed the defence’s suggestion that the Acholi traditional justice mechanism replace the formal court process and rules on sentencing. It explained that mato oput could not extend to all the victims, majority of whom had rejected the ritual.
“Article 23 of the Statute provides that a person convicted by the court may be punished only in accordance with the Statute. In turn, Article 77 of the Statute specifies – exhaustively – the penalties to be imposed for the commission of crimes within the jurisdiction of the court. Any defence submission to incorporate traditional justice mechanisms into the sentence imposed on the convicted person under Article 76 of the Statute must therefore fail directly as a result of this principle of nulla poena sine lege,” said the three-judge bench.
The principle of nulla poena sine lege (translated from Latin as “no penalty without a law”) means there must be no punishment except according to a fixed law, which in this case is the Rome Statute.
The court specified each individual sentence for the 61 crimes. It pronounced an individual sentence of 20 years for murder and persecution in the context of the attacks on Pajule, Odek, Lukodi, and Abok camps for internally displaced persons (IDP); sexual slavery, rape, forced marriage and forced pregnancy; enslavement and torture as sexual and gender-based crimes; and conscription of children under the age of 15 and their use to participate actively in hostilities.
An individual sentence of 14 years was handed down for attacks against the civilian population such as attempted murder, enslavement, and torture in the context of the attacks on the Pajule, Odek, Lukodi, and Abok IDP camps; and crimes of outrage upon personal dignity.
The judges gave individual sentences of eight years of imprisonment for pillaging and destruction of property committed during the attacks on the four IDP camps.
Sarah Kihika Kasande, the head of the International Center for Transitional Justice and an advocate in Uganda, shared the views of some of the people of Laroo Division in Gulu, who were affected by the LRA atrocities. She said most of them agreed with Judge Pangalangan’s views.
“Out of the 25-year sentence, six have been deducted [served] making it 19, which is less compared to the many crimes Ongwen committed,” Kasande said on her Twitter handle.
Another comment said: “After 19 years, Dominic Ongwen will return when he is an old man. He will no longer be productive or help the community. Nine years would have been good enough.”
“Others wanted to find out what will happen after Ongwen serves his sentence. Will he be allowed to return home, or will he be resettled in another country?” she added.
The documents of the trial chamber’s verdict issued on 4 February 2021, said Ongwen was born around 1978 and was abducted in 1987.
If the Appeal Chamber confirms the sentence and Ongwen serves the full term, he will be 68 years old when he is released.
The court can review the length of the imprisonment after he has served two-thirds of his sentence.
The judges ordered the victims’ legal representatives, the registry, and the Trust Fund for Victims to submit a maximum of 50 pages on reparations by Monday, 6 September 2021. The submissions should include the total number of the victims of the crimes for which Ongwen has been convicted; any legal and factual issues relevant to the identification of eligible victims; and victims, or groups of victims, that may require prioritisation. It should also look into the types and extent of the harm suffered; the types and modalities of reparations that would appropriately address the harm suffered; and the cost estimates to repair the harm suffered by the victims. This may include the cost of running rehabilitation programmes in the affected region.
To read more on the sentencing:
Partly dissenting opinion of Judge Raul C. Pangalangan: https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1819-Anx
Order for Submissions on Reparations: https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1820
Court transcript: https://www.icc-cpi.int/Transcripts/CR2021_01038.PDF