At 14 years, he was a budding teenager; perhaps dreaming of a career like any other teenager. But alas! He was abducted by a notorious warlord, indoctrinated and trained to kill, abduct, maim and perform any such heinous act as commanded.
With this background plus the Lord’s Resistance Army (LRA) modus operandi, we can safely say that he was petrified. He had to follow orders to survive. How long did he have to do this? After how long do indoctrinated victims crash to become the perpetrators? Because science may not have a conclusive estimate, why shouldn’t Dominic be given a chance to seek immunity, asylum or amnesty, whichever is suitable?
Severally, he chanced to escape: to surrender to legitimate government forces but (as Wikipedia reports) he returned to the LRA. It is only in 2014 that he surrendered after falling out with his Commander-in-Chief, Joseph Kony. We might assume he would have continued with LRA had this fall-out not happened.
In Northern Uganda, the Acholi people have a cultural way of reconciling warring parties, i.e. victims and perpetrators. They call it the ‘Mato Oput’.
Literally translated from Acholi language to mean ‘drink a portion from the oput tree’, ‘Mato Oput’ is a restorative form of justice. The concoction is symbolic of reconciliation among the Acholi. It has a bitter taste so the partaker acknowledges the bitterness his/her actions caused the victim(s) and vows never to repeat them.
But for one to be reconciled with his victim, he must first acknowledge his vile acts.
*Dominic does not. Not with his recent excuse. He has safely taken the ‘not guilty’ route and blamed his captures for the crimes.
True, orders in warfare are mostly the burden of the commanding officer who is liable for the actions of his subordinates. In criminal law, intention and action often must be present to impute a crime. Also, the party with intention carries the burden of establishing innocence if he did not act. However, where he orders another to do what he intends, he is equally guilty as one who acted. Dominic is reported to have commanded several ambushes and abductions, many of which cost lives of ordinary people.
Mato Oput, had it been used for Dominic, wouldn’t have sought a ‘guilty’ or ‘not guilty’ verdict for the former rebel. It would have required him to vow never to return to his old savage self against his victims or any other.
Not the ICC, though. Rest assured that the court is willing to exercise the full legal process.
The long road to ‘Justice’
Although the prosecution has been limited to crimes Dominic committed after he became an adult, it will be difficult to separate the two eras in Dominic’s life in the LRA. Whilst children may not be fully criminally liable (especially if acting on an adult’s orders), adults are. The latter is, despite the origin of the command.
The law presumes that adults are in control of their mental faculties and therefore can differentiate between good and bad. As a child forced to witness brutal murders, rape and other criminal activities in warfare, Dominic is immune to prosecution to that extent. It is the legal mechanisms that limit or stretch what is or is not punishable.
One may argue that whether or not he was a child, victims know one or two things: that they suffered under someone’s acts and that that someone must be punished for those acts.
For his actions as a minor, the defense may draw evidence to show he could not resist acting as commanded given Joseph Kony’s reputation. But it will be difficult to establish vicarious liability while he was an adult.
Therefore, for his actions as an adult, Dominic must answer because in as much as his physical appearance looks fit, most of his victims’ physical and yes, his own mental faculties are maimed by the crimes he committed.
In any conflict, there are victims and perpetrators. While LRA’s situation is peculiar (because many rebel commanders were victims, abductees, themselves), victims who refused to join the violence but suffered deserve closure.
The ICC, in its legal scope of duty, will establish whether or not Dominic Ongwen is guilty or not guilty. To the many who are inquisitive, it is the evidence of his victims that has already branded him a perpetrator and not a victim.
BY ATUHAIRWE AGRACE
This article appears in our weekly digital law magazine, The Deuteronomy Vol 9, Issue 2 of December 9th, 2016
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