On February 4, 2021, the Trial Chamber IX of the International Criminal Court (ICC) rendered its long-awaited judgment in the case of Dominic Ongwen. The verdict came after more than four years on trial, which was initiated 12 years after Uganda’s referral of the situation to the Court. In a lengthy judgment of 1077 pages, the defendant was found guilty on 61 counts of war crimes, and crimes against humanity committed in northern Uganda after 1 July 2002.
The case of Dominic Ongwen is one of many firsts for the ICC. It is the first state self-referral and the first investigation of atrocities by the Office of the Prosecutor (OTP) after the establishment of the Court. In addition, the case is the first on the situation in Uganda to be tried, involving the largest number of charges and modes of liability against a single perpetrator, as well as the widest range of sexual crimes ever brought to trial before the ICC. Lastly, Ongwen is the first person to be charged with, and declared guilty of the crime of forced marriage as a distinct crime under article 7(1)(k) of the Rome Statute and, most importantly, the first abducted child soldier found guilty for the commission of the same crimes that he has also suffered. Several aspects of the judgment deserve further analysis as they illustrate the prospects and the limitations of international criminal law.
BACKGROUND
Soon after President Yoweri Museveni seized power in 1986, the conflict in northern Uganda began. The Holy Spirit Movement, established under the leadership of Alice Lakwena, was one of the most prominent rebel groups and came close to attacking Uganda’s capital. In 1987, after the spirit leader of the group fled to neighboring Kenya, Joseph Kony formed the Lord’s Resistance Army (LRA) from the remnants of the Holy Spirit Movement. Under Kony’s leadership, who is an alleged spirit medium like Lakwena, the LRA eclipsed the other rebel groups operating in northern Uganda and became one of Africa’s most brutal militia forces. The LRA used children as a vital resource, continuously abducting children to join their ranks. The boys were usually forced to fight while the girls were usually turned into sex slaves or forced to marry men in the LRA (“bush wives”). It is estimated that the LRA had abducted approximately 25.000 children and youth into its ranks.
Following the self-referral by Uganda in December 2003, the OTP began investigations into the situation in July 2004, issuing a sealed warrant of arrest a year later for five leaders of the LRA including Ongwen. Ten years after the issuance of the unsealed warrant of arrest, in January 2015, Ongwen was surrendered to ICC custody by the Central African Republic and made his first appearance before the Court. After the announcement and confirmation of charges against Ongwen, the trial began in December 2016.
THE TRIAL CHAMBER’S VERDICT AND ITS SIGNIFICANCE
Ongwen was charged with 70 counts of war crimes and crimes against humanity. These were alleged to have been committed between July 2002 and December 2005 in northern Uganda while he was the commander of the LRA. Ongwen’s charges encompassed a total of 49 counts of war crimes and crimes against humanity related to attacks on four camps for internally displaced persons (IDPs), namely Pajule, Odek, Lukodi, and Abok. Furthermore, the charges included 19 counts of sexual and gender-based crimes, as well as two counts of war crimes for the conscription and use of child soldiers.
Dominic Ongwen was charged under four modes of criminal liability. More precisely, the defendant was charged with direct individual criminal responsibility under article 25(3)(a) of the Rome Statute; the ordering, solicitation, or induction of crimes, under article 25(3)(b); the making of other contributions to the commission or attempted commission of a crime by a group of persons acting with a common purpose under article 25(3)(d); and, lastly, with command responsibility as a leader of the LRA under article 28(a).
In its judgment, the ICC found the defendant guilty on 61 counts. More specifically, ICC Trial Chamber IX found Ongwen guilty beyond reasonable doubt for the attacks against the civilian population, which included, murder, attempted murder, torture, enslavement, pillaging, persecution, outrages upon personal dignity, and destruction of property committed in the context of the attacks to the IDP camps Pajule, Odek, Lukodi, and Abok. Ongwen was found guilty of sexual and gender-based crimes, namely forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity. The latter he committed against seven women who were abducted and placed in his household, as well as forced marriage, torture, rape, sexual slavery, and enslavement committed against women and girls within the Sinia Brigade. Lastly, the Trial Chamber found Dominic Ongwen guilty of the war crime of conscripting children under the age of 15 into an armed group and using them to participate actively in hostilities.
The Chamber found that the defendant was fully responsible for all the crimes of which he had been convicted and did not find evidence that supported the claims of mental disease or disorder during the relevant period for the charges. Moreover, the Trial Chamber did not find that Ongwen committed these crimes under duress or under any threats as he willingly stayed in the LRA and rose in ranks, becoming one of its top commanders, with witness testimony revealing that he was acting independently of Kony.
The decision of the Trial Chamber offers several significant legal insights that deserve further analysis.
Forced pregnancy and forced marriage were litigated for the first time as distinct punishable crimes before the ICC, with forced pregnancy being tried for the first time in international criminal law in general. In addition to being stipulated as distinct crimes, the defendant was found guilty of those crimes. This development signifies a more victim-centered approach by the Court, aiming to capture the totality of crimes suffered by the victims of the LRA. Furthermore, victims of forced marriages are usually discriminated against and stigmatised by their communities, after returning with the children born out of such marriages, which do not conform to their cultural standards. The conviction of Ongwen for those crimes may be the first step in the recognition of victims’ experiences and their reintegration in their communities.
Moreover, the ICC faced for the first time the affirmative defences of mental disease and duress. The ICC’s judgment regarding mental disease showcases existing difficulties. So far, there are no provisions or guidelines in international criminal law concerning the assessment of the reliability and, thus, admissibility of psychiatric examinations as evidence, which is especially challenging in cases such as Ongwen’s that conflicting evidence is presented. Another problem is the lack of guidelines regarding the content and methods to be used in the clinical assessment of the defendant. Even though methodological considerations played a significant role in the decision of the Trial Chamber, the prosecution and the defence were not in agreement regarding the methodology employed, i.e. the use of psychometric tests to avoid malingering. Overall, the case of Ongwen demonstrates the need for guidelines that would ensure the reliability and admissibility of expert reports in the cases of psychiatric assessment to safeguard the protection of fair trial rights of the defendants.
Lastly, the case of Ongwen illustrates the complexity of the balance between culpability and victimhood. This complexity can be identified in the directly opposite case narratives presented by the prosecution and the defence. Ongwen was presented as a cruel mass murderer and fearless commander of the LRA by the prosecution while the defence depicted him as a young boy abducted, victimised, and indoctrinated into the LRA. Throughout its course, the case sparked diverse reactions regarding whether or not Ongwen’s abduction and former victimisation by the LRA should play a role in the decision of the Court. It has been supported that Ongwen’s victimisation should have a legal relevance to the judgment of the Court as a failure to incorporate his past brutal experiences would be unjust. Conversely, it can be argued that, whilst recognising former child soldier experiences, the crimes committed during their adulthood should permit accountability to ensure, among others, justice for the victims. A middle ground could be that the recruitment as a child soldier and the resulting experiences serves as a mitigating factor in the sentencing proceedings of a convicted perpetrator, as required under rule 145 of the Rules of Procedure and Evidence.
LIMITATIONS OF INTERNATIONAL CRIMINAL LAW
After more than four years of trial proceedings, Dominic Ongwen was found guilty on 61 counts, including for the crimes of forced marriages and forced pregnancy. The Trial Chamber’s judgment in Ongwen’s case illustrates both the prospects and the limitations of international criminal law. On the one hand, the judgment signposts a new era in which the ICC can follow a more victim-centered approach in its proceedings. On the other hand, it illustrates the limitations of international criminal law in cases of complex social and political realities, such as those faced in cases of child soldiers.
Andreas Sauermoser is a researcher at the Ludwig Boltzmann Institute of Fundamental and Human Rights in Vienna and PhD candidate at the Law Faculty of the University of Vienna. His research focuses on the interlink between Human Rights Law and International Criminal Law, as well as on domestic prosecution of core international crimes within the European Union.
Konstantina Stavrou is a researcher at the Ludwig Boltzmann Institute of Fundamental and Human Rights and PhD candidate at the Law Faculty of the University of Vienna. Her research focuses on the use of digital evidence in international criminal proceedings, as well as on domestic prosecution of core international crimes.