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Narratives of (In) Justice: Faulty Historical Narratives and Bias in The

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Narratives of (In) Justice: Faulty Historical Narratives and Bias in The NARRATIVES OF (IN)JUSTICE: FAULTY HISTORICAL NARRATIVES AND BIAS IN THE CASE OF THE PROSECUTOR V. DOMINIC ONGWEN AT THE INTERNATIONAL CRIMINAL COURT A thesis submitted to the Kent State University Honors College in partial fulfillment of the requirements for University Honors by John Koleski May 2021 Thesis written by John Koleski Approved by _____________________________________________________________________, Advisor ______________________________________________, Chair, Department of History Accepted by ___________________________________________________, Dean, Honors College ii TABLE OF CONTENTS ACKNOWLEDGMENT……………..………………………………………………….iv CHAPTERS I. INTRODUCTION…………….………1 Understanding the ICC…………………………………………………….5 Key Theoretical Concepts for Understanding the Arguments……………10 Thesis Structure…………………………………………………………13 II. SIMPLISTIC NARRATIVE: CRITIQUING THE ICC’s HISTORICAL NARRATIVE IN THE CASE OF THE PROSECUTOR v. DOMINIC ONGWEN …………………………………………….………………….16 Historical Analysis in the Trial Judgement Document…………………...16 What does the ICC Narrative Ignore?.........................................................25 Conclusion……………………………...………………………………..30 II. INTANGIBLE GROUNDS EXCLUDING CRIMINAL RESPONSIBILITY: ANALYZING BIAS IN THE TRIAL JUDGMENT DOCUMENT…………………………………………………………….32 On the Defence’s Claim of Mental Disease or Defect……………………33 On the Defence’s Claim of Duress………………………………………..50 Conclusion……………………………….……………………………....63 IV. CONCLUSION…………………………………………………………..65 BIBLIOGRAPHY………………………………………………………………………..68 APPENDIX 1. Table 1……………………………………………………………………73 iii ACKNOWLEDGMENTS I would first like to thank my thesis advisor, Dr. Timothy Scarnecchia, for all his help with my thesis. His expertise and guidance throughout the process of writing this thesis and constant encouragement has been instrumental in my ability to take on this project over the last two semesters. Furthermore, Dr. Scarnecchia has served as a mentor for much of my college career, being both the advisor of the Kent State Model NATO Team, which has been a great experience for me in my undergraduate years and was also my mentor in the Summer Undergraduate Research Experience (SURE) program at Kent State University. I thoroughly appreciate how helpful you have been throughout my undergraduate experience. Secondly, I would like to thank the rest of the members of my committee, Dr. Julie Mazzei, Dr. Felix Kumah-Abiwu, and Dr. Suzy D’Enbeau. Dr. Mazzei has not only been one of my favorite professors throughout my undergraduate years but has also been one of the most influential professors on my growth intellectually in the process of getting my degree, and I would like to thank her specifically for all her help over the years as well. I would like to thank Dr. Kumah-Abiwu and Dr. D’Enbeau, as I appreciate their time that they have invested in reading my thesis and being part of my Defence committee. I welcome the unique perspectives they bring to critiquing my work. And finally, I would like to thank my family and friends who have supported me and helped me throughout the process of writing this thesis and dealing with the bizarre mishaps coming from doing all of this work during a global pandemic. Specifically, I would like to thank one of my best friends, David, for all of his help throughout writing this thesis, from brainstorming ideas, to editing my work, to reassuring me that I can get through it during the most stressful times. I am also thankful to him for being an unceasingly supportive friend throughout my undergraduate years at Kent State. Lastly, I would like to give a special thank you to my mom and dad who have both been incredibly supportive of me and have provided for me and made it possible for me to be iv dedicated to my studies and further my education by making sacrifices and working hard throughout my whole childhood to give me the best life possible. v 1 Chapter I Introduction In December of 2003, Yoweri Museveni, the President of Uganda since a military coup in 1986, made an appeal to the Prosecutor of the International Criminal Court (ICC) regarding the situation in Northern Uganda with the Lord’s Resistance Army/Movement (LRA/M). In July of 2004, after determining a reasonable basis to investigate the matter in accordance with Article 18 of the Rome Statute, the Prosecutor notified the State Parties of the ICC and all other necessary bodies with the commencement of investigations into the matter.1 One of the five individuals from the LRA/M that was put under arrest by the ICC was Dominic Ongwen. He became an important figure who has turned into a representation of the ICC’s warrants against the LRA/M, as three of the other five have since died, and Joseph Kony has proven himself able to avoid arrest and unwilling to surrender, making Ongwen the only likely candidate for trial. Ongwen himself was a victim of some of the crimes he was accused of, and found guilty of; thus, he has the status of victim-perpetrator, which complicates matters in the case as it obfuscates the question of justice and responsibility, as will be discussed at the end of the third chapter. Since Museveni’s violent takeover of Uganda in 1986, there has been a resistance from the dominant group of people in Northern Uganda that mostly make up the LRA/M, the Acholi people. This resistance was mostly a political reaction by the Acholi people 1 Info paraphrased from Yves Beigbeder, International Criminal Tribunals: Justice and Politics, Springer, 2011, p. 212. (hereafter referred to as Beigbeder, 2011.) 2 who experienced a long history of oppression from the prior colonial governments and prior non-Acholi regimes in Uganda. At first, the LRA/M did have some popular support from the Acholi. However, as time went on and the Acholi were displaced from their own land, being made internal refugees in gravely underfunded Internally Displaced Persons (IDP) camps by the Government of Uganda (GoU), they were seen as capitulating and working with the state, and thus the LRA/M, led by Joseph Kony, then victimized them and, at times as will be discussed later in this thesis, attacked them in these IDP camps. Thus, the Acholi people are doubly victimized, both by the State, who forcibly displaced more than 1.6 million people2, and the LRA/M, who have directly carried out acts of unspeakable violence, abducting children, grievous acts of sexual violence, and killing many individuals.3 This thesis will analyze the case of The Prosecutor v. Dominic Ongwen at the ICC, mainly focusing on the sections titled “Historical background” and “Grounds excluding criminal responsibility,” as laid out in the trial judgment document released by the ICC at the completion of this case on 4 February 2021. In terms of sources, this thesis will utilize a combination of the trial judgement document, the witness testimonies, the Prosecutor’s and Defence’s briefs and expert testimonies, and secondary sources from scholars on this topic. This thesis sets out to 2 Beigbeder, 2011, p. 210. 3 See Adam Branch, “Neither peace nor justice: Political violence and the peasantry in northern Uganda, 1986-1998,” African Studies Journal 8, no. 2, 2005. (hereafter referred to as Branch 2005.), Anthony Vinci, “The strategic use of fear by the Lord’s Resistance Army,” Small Wars & Insurgencies 16, no. 3 (2005): 360-381. (hereafter referred to as Vinci 2005)., and Sverker Finnstrom, Living with bad surroundings: War, history, and everyday moments in northern Uganda, Duke University Press, 2008. (hereafter referred to as Finnstrom 2008) for more on the violence committed by the LRA/M. 3 achieve two goals. The first is to challenge the problematic framing of the conflict in their finding of historical “fact”. The second goal is to analyze the way in which the bias of the Prosecution and judges (the judges in this case will hereafter referred to as the Chamber) obfuscated the pursuit of justice in this case, as Ongwen was, in violation of the principle of innocence until proven guilty laid out in Article 66 of the Rome Statute,4 viewed as a criminal before being brought to the ICC in 2015. The decisions in this case and the Chamber’s neglect of the crimes also committed by Museveni’s regime also have major political and historical implications, which will be explored in the conclusion. Before building a better understanding of the ICC, this thesis will first address the crimes Dominic Ongwen committed as stated in the trial judgement document. These crimes are broken down into three subdivisions: “(i) charges of crimes committed within the context of four specific attacks against four IDP camps; (ii) charges concerning sexual and gender based violence crimes directly perpetrated by Dominic Ongwen against seven women…; and (iii) charges – which are systemic in nature – concerning other sexual and gender based violence and conscription and use in hostilities of children under the age of fifteen committed in Northern Uganda between 1 July 2002 and 31 December 2005.”5 The first category includes the attacks on four Internally Displaced Persons camps, including Pajule IDP Camp, Odek IDP Camp, Lukodi IDP camp, and Abok IDP 4 The founding document of the International Criminal Court. 5 International Criminal Court, Prosecutor v. Dominic Ongwen, ICC-02/04-01/15-1762-Red, February 2021, https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-02/04-01/15-1762-Red, para. 33. (hereafter referred to as “ICC Trial Document”). 4 camp. For the sake of brevity, the case of one of these camps will be explored to understand the gravity of the crimes committed by Ongwen, that being Pajule IDP Camp. In this attack, “on or about 10 October 2003,”6 Ongwen is charged for crimes against humanity and war crimes. Specifically, this includes “attacking civilians, murder, torture, cruel treatment, other inhumane acts, enslavement and pillaging.”7 Furthermore, he is charged with “political persecution on grounds that the other alleged crimes were committed against civilians perceived by the LRA as being affiliated with, or supporting the Ugandan government.”8 The second and third categories of crimes, that being sexual and gender based crimes directly committed by Dominic Ongwen and systemic charges, will now be addressed.
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