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 was captured 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 US forces dedicated to tracking the Lord’s Resistance Army alongside 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 undertaken certain 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-US citizens against other non-US 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 when he was a child.

This outcome is particularly welcome given indications in the press that Ugandan officials considered arguing that Ongwen should be prosecuted domestically in the country’s untested International Crimes Division (ICD) of the High Court, established in 2008. The impulse to prosecute Ongwen domestically no doubt reflects in part the gradual disillusionment with the Court expressed recently by Ugandan President Yoweri Museveni, who ratified the Statute in 2002 and referred the situation in Northern Uganda in December 2003 — the first country to self-refer — following years of unsuccessful peace talks with the LRA. (The best account of the push-pull relationship between Uganda and the Court is by Professor Linda Keller and is available here).

So far, the ICD has commenced one case, against Thomas Kwoyelo, a former LRA member who was captured in neighboring Democratic Republic of Congo (DRC) in 2009. This effort has been complicated by the fact that Uganda enacted an amnesty law in 1999 in order to encourage LRA defections. Over 12,000 LRA members (along with another 14,000 or so members of other armed groups) have received amnesty to date under the law including, originally, Kwoyelo. The law, which has lapsed and been re-enacted (see here for the details), is set to expire again in May 2015. The prosecutor’s appeal challenging Kwoyelo’s eligibility for amnesty had been pending for months while the Supreme Court failed to achieve a quorum. The Court finally heard arguments in March 2014, although no judgment has yet emerged. Many Acholi religious leaders in the north favor reconciliation over prosecution and have advocated the use of traditional justice mechanisms in lieu of criminal trials for defectors.

Ongwen’s transfer to the ICC arguably required the consent of Uganda, in light of the existence of an Article 98 agreement between the United States and Uganda. This agreement, which entered into force in 2003, provides that

Persons of one Party present in the territory of the other shall not, absent the express consent of the first Party,

  1. be surrendered or transferred by any means to the International Criminal Court for any purpose, or
  2. be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the International Criminal Court.

Although this provision did not contemplate the current scenario — a Ugandan in US custody on the territory of a third state — another provision states:

When the United States extradites, surrenders, or otherwise transfers a person of Uganda to a third country, the United States will not agree to the surrender or transfer of that person to the [ICC] by that third country, absent the express consent of the Government of the Republic of Uganda.

This latter provision might have complicated the United States’ transfer of Ongwen to CAR custody for onward surrender to the Court absent Uganda’s consent, although it does not seem to prevent a fugitive’s direct transfer to the ICC from a third country.

The Article 98 agreement with the Central African Republic similarly only addresses the transfer of CAR citizens. That said, the decision to transfer Ongwen to the ICC clearly reflects CAR’s preference as well. Acting President Catherine Samba-Panza, whose nickname is “mother courage,” has expressed strong support for the ICC. She spoke passionately at the last session of the Assembly of States Parties in December 2014 about the crucial role of the Court in preventing impunity and changing the dynamics on the ground in CAR. No doubt her perspective, as the head of the territorial state battling its own warlords, carried much weight in reaching this outcome.

So far, the Article 98 Agreements — a legacy of the Bush administration’s initial hostility toward the Court and an effort to protect US personnel from prosecution before the Court — have actually threatened to complicate matters and limit United States action in the two circumstances in which they have arisen. The first was with respect to Bosco Ntaganda, who surrendered himself to the United States embassy in Kigali Rwanda in March 2013 and expressed his desire to be transferred to The Hague. Ntaganda testified in Court that he is a citizen of the Democratic Republic of Congo (which also entered into an Article 98 Agreement with the United States), although he was born in Rwanda (which also has an Article 98 Agreement in place). Although the DRC is a party to the ICC Statute, Rwanda is not. In the end, neither state nor Ntaganda himself resisted transfer to the Hague. Ntaganda will soon be joined by the second ICC fugitive to find himself in US custody.