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
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TABLE OF CONTENTS
ACKNOWLEDGMENT .. . iv
CHAPTERS
I. INTRODUCTION . 1 Understanding the ICC . 5 Ke T e e ca C ce f U de a d e A e 10 Thesis S c e 13 II. SIMPLISTIC NARRATIVE: CRITIQUING THE ICC HISTORICAL NARRATIVE IN THE CASE OF THE PROSECUTOR v. DOMINIC ONGWEN . . 16 Historical Analysis in the Trial Judgement D c e ...1 6 What does the ICC Narrative Ignore?...... 25 C c ... .. 30 II. INTANGIBLE GROUNDS EXCLUDING CRIMINAL RESPONSIBILITY: ANALYZING BIAS IN THE TRIAL JUDGMENT DOCUMENT . 32
O e Defe ce C a f Me a D ea e Defec 33
O e Defe ce C a f D e .. 50
C c . ... .63 IV. CONCLUSION ..6 5 BIBLIOGRAPHY ..68 APPENDIX 1. Table 1 73
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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-Ab , a d D . S D E bea . D . Ma e a 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 D . D E bea , 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.
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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 he i a ion in No he n Uganda i h he Lo d Re i ance A m /Mo emen
(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
ned in o a ep e en a ion of he ICC a an again he LRA/M, a h ee of he 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 M e eni iolen akeo e 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, mainl foc ing on he ec ion i led Hi o ical backg o nd and G o nds e cl ding c iminal e pon ibili , a laid o in he ial j dgmen doc men elea ed b 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 witne e imonie , he P o ec o and Defence b ief and e pe testimonies, and secondary sources from scholars on this topic. This thesis sets out to
2 Beigbeder, 2011, p. 210. 3 See Adam B anch, Nei he peace no j ice: Poli ical iolence and he pea an in no he n Uganda, 1986-1998, Af ican S die Jo nal 8, no. 2, 2005. (he eaf e efe ed o a B anch 2005.), Anthony Vinci, The a egic e of fea b he Lo d Re i ance A m , Small Wa & In gencie 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 hi o ical fac . The econd goal i o anal e he a in hich he bia of he
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
Chambe neglec of he c ime al o commi ed b M e eni egime 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 c ime a e b oken do n in o h ee bdi i ion : (i) cha ge of c ime commi ed i hin the context of four specific attacks against four IDP camps; (ii) charges concerning sexual and gender based violence crimes directly perpetrated by Dominic Ongwen again e en omen ; and (iii) cha ge 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
Decembe 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 efe ed o a ICC T ial Doc men ). 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 hi a ack, on o abo 10 Oc obe 2003, 6 Ongwen is charged for crimes against h mani and a c ime . Specificall , hi incl de a acking ci ilian , m rder, torture, c el ea men , o he inh mane ac , en la emen and pillaging. 7 Furthermore, he is cha ged i h poli ical pe ec ion on g o nd ha he o he alleged c ime e e committed against civilians perceived by the LRA as being affiliated with, or supporting
he Ugandan go e nmen . 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. In terms of sexual and gender based crimes Ongwen committed, these include fo ced ma iage a an inh man ac con i ing a c ime again h mani ; o e a a c ime again h mani and a c ime ; ape a a c ime again h mani and a c ime ; e al la e a a c ime again h mani and a a c ime ; en la emen a a c ime again h mani ; fo ced p egnanc a a c ime again h mani and a c ime ; and o age pon pe onal digni a a a c ime .9 Finally, the systemic crimes perpetrated by Ongwen include the following: forced ma iage a an inh mane ac con i ing a c ime again h mani ; o e a a c ime again h mani and a c ime ; ape a a c ime again h mani and a c ime ; en la emen a a c ime
6 ICC Trial Document para 34. 7 Ibid. 8 Ibid. 9 ICC Trial Document para. 35. 5
again h mani ; con c ip ion of child en nde he age of 15 a a a c ime ; and
ing child en nde he age of 15 o pa icipa e in ho ili ie a a a c ime .10
Understanding the ICC
This subsection will cover the mandate and structure of the International Criminal
Court (ICC) according to the Rome Statute, written in 1998 and put into effect in 2002, and then conclude by evaluating the significance of the Ongwen case considering the
ICC hi o . In addition to describing the composition of the Court, this section will also analyze key articles and concepts from the Rome Statute that are instrumental principles for the case at hand. By relying on the direct citations from the Rome Statute and secondary sources on its history, this section will provide a brief background for understanding the context in which this case can be understood and its significance for the ICC.
The Rome Statute was originally drafted on 17 July 1998 by 120 countries and
hen en e ed in o fo ce on 1 J l 2002, af e 60 a e had a ified i , a e i ed b
A icle 162 of he a e .11 The ICC, operating out of the Hague in the Netherlands12, as opposed to other supranational courts such as the International Criminal Tribunal for
Rwanda (ICTR) or the International Criminal Tribunal for the former Yugoslavia
(ICTY), is a permanent court whose purpose is not tied to one international situation.
10 ICC Trial Document para 36. 11 Beigbeder 2011, p. 185. 12 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, available at: https://www.refworld.org/docid/3ae6b3a84.html [accessed 20 April 2021], Article 3. (hereafter referred to as Rome Statute). 6
Since its inception, there have been myriad perspectives on its efficacy in international law, and some critiques of the ICC will also be addressed in this section. This need to establish itself as a reputable means through which justice is achieved in international law has defined the early life of the Court. One of the main issues for the ICC is that some of the largest world powers, such as the United States, Russia, China, and India, have yet to join the ICC.13
The e a e fi e main o gan of he ICC: he P e idenc , an Appeal Di i ion, a
Trial Division and a Pre-T ial Di i ion, he Office of he P o ec o and he Regi . 14
There are 18 judges, elected by secret ballots through the State Party members for terms of nine years which are not renewable. There are three members of the Presidency, the
President, and the first and second Vice Presidents, whose main role is dealing with administerial roles for the court, however does not oversee the Office of the Prosecutor.15
The Office of the Prosecutor, independent from the other organs of the Court, is
e pon ible for receiving referrals and any substantiated information on crimes, for e amining hem and fo cond c ing in e iga ion and p o ec ion befo e he Co . 16
There is one Prosecutor and at least one, but typically more, Deputy Prosecutors. The
Registry, on the other hand, oversees the non-judicial elements of the court and
pecificall ha a Vic im and Wi ne e Uni hich p o ide p o ec i e mea e and security arrangements, counseling and other appropriate assistance for witnesses, victims
13 Russia signed on to the Statute, however it never passed through their parliament; for more see Beigbeder 2011. 14 Beigbeder 2011, p. 190. 15 Rome Statute Article 38. 16 Beigbeder 2011, p. 190 7
who appear before the court, and others who are at risk on account of testimony given by
ch i ne e . 17
From the perspective of the international community, there are two key elements to recognize to understand the place the ICC inhabits in international relations. First, in opposition to the International Court of Justice (ICJ), the ICC judges individuals, not
a e . I ha j i dic ion o e he mo e io c ime of conce n o he in e na ional comm ni a a hole and aim , like he o he co , a ending imp ni of he perpetrators of these crimes, and thus should contribute to the prevention of such c ime . 18 That being said, their jurisdiction is severely limited by, as laid out in Article 1 of he Rome S a e, hei ole a complemen a o na ional c iminal j i dic ion . 19
Their jurisdiction will be further discussed later in this section. Secondly, the ICC is an
independen pe manen j dicial in i ion, b i epo i ac i i ie o he UN
Secretary-General, has observer status in the General Assembly, and may address the
Sec i Co ncil. 20 Thus, the ICC is not contingent on the UN for its existence and is an independent body in international relations; however, they do have a high level of interoperability amongst each other.
The crimes which the ICC are responsible for trying fall into four categories: genocide, crimes against humanity, war crimes, and crimes of aggression.21 Genocide, in
17 Rome Statute Article 43. 18 Beigbeder 2011, p. 187. 19 Rome Statute Article 1. 20 M. A. Karns, Karen A. Mingst, and Kendall W. Stiles, International organizations: The politics and processes, Boulder, Colorado: Lynne Rienner Publishers, Inc, 2004: p. 505. (hereafter referred to as Karns et. al., 2004). 21 Rome Statute Article 5. 8
ho , i defined a a acking a g o p of people and killing hem beca e of ace, e hnici , o eligion. 22 There are many crimes against humanity and, as listed in the
Rome Statute, are as follo : (a) M de ; (b) E e mina ion; (c) En la emen ; (d)
Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f)
Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
ecogni ed a impe mi ible nde in e na ional la ; (i) Enfo ced di appea ance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical heal h. 23 Wa c ime , fo he ake of b e i , a e [g] a e b eache of he Gene a
Con en ion of 12 A g 1949 [o ] [o] he e io iola ion of he la and c om applicable in in e na ional a med conflic 24 Finally, crimes of aggression, a definition added o he Rome S a e b a e ol ion on 11 J ne 2010, a e defined a he planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression
22 Karns et al., 2004, p. 505. 23 Rome Statute Article 7; for further definitions of each of these crimes look at Rome Statute 7(2)(a-i). 24 Rome Statute Article 8. 9
which, by its character, gravity and scale, constitutes a manifest violation of the Charter of he Uni ed Na ion . 25
While the above list are the crimes for which the ICC is responsible, it does not follow that the ICC has the jurisdiction to then prosecute any crime deemed falling into one of those four categories in the international community. Instead, as is laid out in
Article 12 of the Rome Statute, he Co ha j i dic ion hen [c] ime ha e been committed in the territory of a state which has ratified the Statute; [c]rimes have been committed by a citizen of a state which has ratified the Statute; [or] [a] state which has not ratified the Statute ha made a decla a ion accep ing he Co j i dic ion o e he c ime. 26 Further limiting their jurisdiction is the fact that the Court has no retroactive effect, meaning that it has no jurisdiction from before the Statute entered into force on 1
July 2002.27
The process by which cases are selected and brought to the ICC is complicated and is supposed to be guided by the principle of complementarity as defined in Article 17 of he Rome S a e. A a ed b one ICC J dge H. P. Ka l, [j] dicial p oceedings before the ICC are only permissible if and when states which normally would have jurisdiction are either unwilling or genuinely unable to exercise their jurisdiction. The
Rome Statute recognizes the primacy of national prosecutions. It thus reaffirms state sovereignty and especially the sovereign and primary right of states to exercise criminal
25 Rome Statute Article 8 bis. 26 Beigbeder 2011, citing Rome Statute Article 12. 27 Rome Statute Article 11. 10
j i dic ion. 28 Furthermore, the compliance of a given state to carry out its arrest warrants is necessary, as the ICC itself has no enforcement mechanisms for arresting and detaining individuals.
While the ICC is the first international attempt to sustain international accountability for human rights violations, there are criticisms of it. I will review some of the main critiques here. First, the ICC aims to reach universality while not having some of he in e na ional comm ni la ge a e , namel he US, China, R ia, and India signed onto the Rome Statute. Every case brought forth to the ICC has originated in
Africa, making the court a de facto regional court. Secondly, there is major ambiguity in the definition of crimes of aggression, which is partly why some states have been hesitant
o ign on. Thi d, he Co p po o be ac ing in he in e e of j ice, ho e e hi can be unclear in meaning and some critique this as a way to claim objectivity in arguably bjec i e ma e . The fo h ca e fo c i i e i he i e of ic im igh and representation of said victims.29
Key Theoretical Concepts for Understanding the Arguments
This section sets out to explain a couple of the main concepts that drive the analytical framework for this paper: that of the authoritative narrative and the interrelated
28 Beigbeder 2011 citing Judge H. P. Kaul, p. 192. 29 For more on these specific critiques, see pages 198-203 of Beigbeder 2011; for more critiques of the ICC see also Ma ieke De Hoon, The F e of he In e na ional C iminal Co . On C i i e, Legali m, and Strengthening he ICC Legi imac , In e na ional C iminal La Re ie 17, no. 4 (2017): 591-614., Lucy Ho il, Challenging In e na ional J ice: The Ini ial Yea of he In e na ional C iminal Co In e en ion in Uganda, S abili : In e na ional Jo nal of Sec ity and Development 2, no. 1, 2013., and Anna Macdonald, In he in e e of j ice? The In e na ional C iminal Co , peace alk and he failed e fo a c ime acco n abili in no he Uganda. Jo nal of Ea e n Af ican S die 11, no. 4 (2017): 628-648. 11
concep of Dominic Ong en a a a child oldie and a a ic im-perpetrator.
These two ideas, the first being crucial for the chapter on Simplistic Narratives and the second being crucial for the Intangible Grounds Excluding Criminal Responsibility, should be kept in mind when reading the rest of this thesis and help to elucidate the nuances of this case.
The first concept is an authoritative narrative, as defined by Donald Brenneis.
This section will look at how the historical narrative established by the Chamber in the trial document reflects this comment, and then examine the inherent problems with these types of narratives. There are a couple of aspects of authoritative narratives that are c cial. Thi fi of he e a pec of an a ho i a i e ole i ha [i]n mo e o le standardized form it may be taken as a binding or reference acco n . 30 In this case, the historical narrative, previously proven to provide a biased and short-sighted view of the conflic , p e en ed in he ICC ial doc men , gi en he fac ha he ICC i an impo an and credible international organization to some, will be a source that will be referenced.
Given the legitimacy of the ICC in its role, it has credibility, even though it has been demonstrated in the previous chapters that they lack a nuanced understanding of the historical narrative. Another aspect of this type of narrative is the issue of multivocality, which, in short, is the privileging of some individual narratives over others to create an imbalanced and only partially true narrative. In this case, the ICC was selective of those narratives which were shared, given the selective use of testimonial evidence, and only
30 Donald B ennei , Telling o ble : Na a i e, conflic and e pe ience, An h opological Ling i ic (1988): p. 281. 12
el ing on one ingle academic e imon and epo 31 for their historical background section, thus limiting the scope of their view. This also leads to another important aspect of this type of narrative, that being the entitlement of certain voices to tell their story over those who experienced it.32
Seeing the narrative established in this court document as an authoritative narrative is crucial to understand some problematic political implications of this narrative. First is the issue of it being a reference account given its multiplicity of problematic narrative shortcomings. This narrative as an authoritative narrative will be problematic in the future and end up in an echo chamber of references to a poor account of the history, leading to problematic assumptions about the history of the LRA/M and the conflict in Uganda. The second aspect, that of multivocality, is also problematic in this case. It casts doubt on testimonies collected in research from academics such as
Finnstrom and Dolan that deviate from the findings of the Chamber. Entitlement is also a major complication in this case as, instead of those experiencing the history getting the chance to tell their own story, a Western international organization gets to set the facts of the case. Furthermore, this authoritative narrative can be employed by the GoU to abdicate themselves of guilt and reference the ICC case with Ongwen to cover up the reality of this protracted conflict in which, for true justice to be achieved, the GoU must give some sort of reparations to the Acholi people and others living in IDP camps.
31 The academic being referenced here is Professor Tim Allen, professor of International Development at the London School of Economics; for more, see ICC Trial Document para. 1. 32 See Donald B ennei , Telling o ble : Na a i e, conflic and e pe ience, An h opological Ling i ic (1988): p. 281-282. for more on authoritative narratives. 13
The second set of concepts that are crucial for understanding these arguments are those of the victim-perpetrator and child soldier. First of all is the victim-perpetrator impasse which, in short, is the situation that occurs when an individual commits crimes that they themselves have been a victim. Ongwen, given his being abducted as a young child, inhibits this status and, after his abduction as a child up until he was an adult, was a child-soldier, which is someone who is forced to be a soldier in war as a child. This has major implications for his psyche as he was put into traumatizing and distressing situations at crucial developmental stages in his life and thus both of these statuses have crucial impacts on the psychological development of individuals who inhabit these categories.33 All of that said, as the chapter on bias will discuss later in this thesis, both of
he e impo an di inc ion a e o e looked in he Chambe a e men of Dominic
Ongwen.
Thesis Structure
The next chapter, titled Simpli ic Na a i e : C i iq ing he ICC Hi o ical
Narrative in the Case of The Prosecutor v. Dominic Ongwen, will first look at the hi o ical backg o nd a e abli hed b he ICC ial j dgemen doc men on he ca e of The Prosecutor v. Dominic Ongwen. Said chapter will first address the early history, and compare and contrast the findings of the Chamber in this case with that of academics, including historians, ethnographers, and political scientists, in order to build a more
33 Fo mo e on Child Soldie ee Alcinda Honwana, Child soldiers in Africa, University of Pennsylvania Press, 2011.
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holistic narrative that contextualizes the crimes committed by Ongwen and the LRA/M.
As suggested by arguments put forth by Chris Dolan in his book, Social Torture, this section will show that the conflict in this case is better understood as one of social torture for the Acholi people rather than a rebellion. Through protracted violence between the
LRA/M and the GoU with the UPDF, the Acholi people became doubly victimized by both the State and the rebel group, creating a situation in which their freedoms and rights are limited and, as Dolan makes clear, the Acholi people are harmed the most.34 That being aid, hi he i doe no f ll endo e and adop Dolan ie of he p o ac ed conflict as a fundamental assumption, since there are some problematic aspects of the a g men , ch a making nega i e a mp ion abo he GoU and UPDF in en ionali i ho fficien e idence and o e a ing he a g men ha he GoU main goal in creating IDP camps was to humiliate those living in them. This section will al o ho ho he Chambe hi o ical na a i e i a impli ic na a i e a oppo ed o more nuanced understandings provided by historians. The next chapter of this thesis looks at the section in the trial judgment document about grounds excluding criminal responsibility.
By taking an in-depth look at the arguments offered by the Chamber, the
Prosecution, and the Defence, the third chapter, titled Intangible Grounds Excluding
C iminal Re pon ibili : Anal ing Bia in he Chambe T ial J dgemen Document, argues that, due to a decade of Ongwen being framed as one of the top people on the
34 For his entire argument, see Chris Dolan, Social torture: the case of northern Uganda, 1986-2006, Vol. 4, Berghahn Books, 2009 (hereafter referred to as Dolan 2009). 15
ICC a e a an li , he a a priori presumed guilty and viewed as a criminal, which led to a bias against him in the way that the Chamber assessed the evidence. The chap e on bia ill be b oken do n in o o ec ion , fi add e ing he Defence claim of mental disease or defect and second that Ongwen acted under duress. Finally, the conclusory chapter of this thesis will analyze the implications of the decision and the
fac e abli hed in the case, which creates an authoritative narrative.
It is important to note that this thesis is not attempting to entirely invalidate the
ICC in its purpose and goals. Nor is this to make the point that the ICC should stop its
o k on he e o of ca e ; a he , hi he i main conce ns with the case of Dominic
Ongwen is that the ICC did not sufficiently address the complications of his status as a child soldier and victim perpetrator. This case, while not being the first instance of a victim-perpetrator or child solider being tried by the ICC, still does have the future impact of setting precedents for how the ICC addresses this issue, and this thesis contends that the ICC needs to develop better means through which to address complex situations such as that of Ongwen. Furthermore, the authoritative narrative that they c ea e ha p oblema ic implica ion fo he f e of he Acholi people poli ical aspirations and achieving justice for those who are not specifically affected by the crimes committed by Ongwen in this specific case. Thus, as will be explored in the conclusion, this thesis would instead posit that either the ICC should have better addressed the n ance of Ong en ca e and aken a mo e holi ic perspective on his situation, or that this case, and that of the LRA/M in Northern Uganda as a whole, should have been delt with in some form of traditional or local justice. 16
Chapter II S c Na a e: C e ICC H ca Na a e e ca e f The Prosecutor v. Dominic Ongwen The International Criminal Court (ICC) released the trial judgement document on the Situation in Uganda in the Case of The Prosecutor v. Dominic Ongwen following the decision of his case on 4 February 2021. This document, and thus the ICC broadly, con c a hi o ical na a i e abo bo h he Lo d Re i ance A m /Mo emen
(LRA/M) and Dominic Ongwen. In this narrative, they construct facts about the case which lead to a myopic view of the conflict, ignoring the structural violence committed and neglect of the Acholi and other individuals in IDP camps by the GoU and UPDF.
This is relevant due to the fact that many crimes committed in this conflict, namely those carried out by the state, go unpunished. This section will trace the facts of the case as understood by the ICC and compares and contrasts their findings to those of historians and other scholars on the history and context of the conflict between the LRA/M and the
GoU. The main argument from this section is that the Chamber, through presenting only part of the narrative, creates a simplified narrative about the conflict that portrays the
LRA/M as the aggressor while abdicating the GoU and UPDF from any guilt for the horrific acts that they committed throughout the duration of the protracted conflict. The trial judgment document is over a thousand pages long, and thus, this thesis will limit this chap e cope o hei ec ion i led Hi o ical backg o nd .
Historical Analysis in The Trial Judgement Document 17
The historical background in the trial judgement document begins its historical analysis in the year 1986 with the overthrow of the regime of Tito Okello, who had seized power the year prior from Milton Obote, and the Uganda National Liberation
Army (UNLA) by Yoweri Museveni and his National Resistance Army (NRA)35; however, beginning the narrative off at this point in the history of Uganda obfuscates the overall narrative of this in the grander narrative in which this story exists, as scholars make clear in their work. Foremost, this brushes over the violent history in Uganda since independence. After gaining independence in 1962, as A.B.K Kasozi covers in depth in his book The Social Origins of Violence in Uganda 1964-1985, the country was rife with
iolence f om a m l iplici of g o p ha di ag eed i h each o he and in le han twenty years of independence Uganda had lost over one million of its population due to ethnic or political iolence. 36 Going even further back, and to avoid simplistic Western narratives about some sort of natural unceasing tribalistic warfare in Africa, much of the e hnic en ion e e oked b he B i i h d ing he colonial pe iod a he c ea ed regional imbalances and e hnic peciali a ion. 37 The division into distinct ethnic groups with distinct roles stoked animosity between different ethnic groups. The British colonial polices gave the majority of the economic power to some groups while giving the responsibility for the armed forces to others, and this led to tensions once Uganda became independent. Thus, a more properly contextualized view explains the political origins of
35 ICC Trial Document, para. 2. 36 Abdu Kasozi, Social origins of violence in Uganda, 1964-1985, McGill-Q een P e -MQUP, 1994, p. 3. 37 Justus Mugaju ed., Uganda Age of Refo m , Fountain Publishers, p. 14. 18
he LRA/M e i ance o M e eni and anal e i in a deepe and hi o ici ed narrative of political violence in independent Uganda.38 This frames the conflict in a way that is much more about political legitimacy and state power than senseless rebellion, as the Chamber makes it seem throughout their early history section.
An important figure from this early period of the conflicts between the GoU and the resistance movements in Northern Uganda brought up in this section by the Chamber i Alice A ma, al o kno n a Alice Lak ena. Alice a a heale mi ing Ch i ian and local ideas, called ajwaki or nebi among he Acholi and he a epo ed o be possessed by various spirits, including one usually known as lakwena he me enge . 39
The Chamber goes on to explain that in offering healing rituals for the returned UNLA soldiers, she was able o claim ha he a a a fo m of healing h o gh hich he people co ld be p ified. 40 Alice Lakwena, growing in popularity and importance, started a campaign referred to by the Chamber as either the Holy Spirit Movement or the
Holy Spirit Mobile Forces.41 This is mostly correct, however as ethnographers have researched, it is more accurate to view the Holy Spirit Mobile Forces as the military arm of the Holy Spirit Movement, which did more than just resist the government.42 Having a reported 18,000 soldiers, Lakwena marched to Kampala, the capital of Uganda, but was, however, was defeated on the way. Soon after, Alice went to a refugee camp in Kenya
38 See ES Atoemp Odhiambo, T. I. Ouso, and J. F. M. Williams, A history of East Africa, Addison-Wesley Longman Limited, 1977. For more on the early political history of an independent Uganda. 39 ICC Trial Document para 3. 40 Ibid. 41 ICC Trial Document para 4. 42 For more on the HSM and Alice Lakwena, see Heike Behrend, Alice Lakwena and the Holy Spirits: war in northern Uganda, 1985-97, Ohio University Press, 2000. 19
and lived out the rest of her life there.43 The Chamber, while not misrepresenting
Lakwena and the Holy Spirit Movement, does not make clear the links between the Holy
Spi i Mo emen and Kon LRA.44
The Chamber then reports, in accordance with what scholars believe, that a
n mbe of g o p con in ing o oppo e he Ugandan go e nmen appea ed in he Acholi homelands, associated with individuals who were inspired by the example of Alice
A ma. 45 One such individual was Joseph Kony, who, along with a past UPDA commande , Odong La ek, c ea ed ha o ld become he Lo d Re i ance
Army/Movement.46 This happened ho l af e P e iden M e eni go e nmen igned a peace agreement with the UPDA, however many of the members of that movement did no ppo hi ag eemen and hen joined Kon mo emen . In 1990, La ek a killed in battle, and Kony became the sole leader of the movement.47
Follo ing hi , he Chambe goe o e he ac ic of Kon fo ce , calling hem a
g e illa campaign again he go e nmen .48 They avoided open battles, instead using
ha he Chambe efe o a e o ac ic o ma im m effec . 49 Furthermore, the
Chamber also notes their use of forced recruitment and abductions. The Chamber does point out the tactics of the LRA/M in this case, however, as is a persistent issue with their
43 ICC Trial Document para 4. 44 See Tim Allen, Trial justice: The international criminal court and he Lo d Re i ance A m . Zed Books Ltd., 2013 and Branch, 2005 for more on this.
45 ICC Trial Document para 5. 46 Ibid. 47 ICC Trial Document para 6. 48 ICC Trial Document para 7. 49 Ibid. 20
historical analysis, they obfuscate the reality and make it seem as if the conflict was perpetrated by one aggressor force. However, both the GoU and LRA/M carried out gross human rights violations. For example, during one of the periods of forced removal of the
Acholi into IDP camps, the soldiers of Muse eni NRA mo emen commi ed h nd ed of extrajudicial executions as they forced people out of their homes, burning down home ead and g ana ie . 50 Furthermore, in the period of 1986-1999, based off of testimonial interviews by Chris Dolan during his research in Northern Uganda, there was sufficient quantitative and qualitative evidence to show that Acholi people in the IDP camps and the warzone generally were victimized at a similar frequency by both the GoU and the LRA/M.51
The ne hi o ical momen he Chambe di c e i he 1991 in en i e fo - mon h mili a ope a ion again he in genc kno n a Ope a ion No h. 52 As described by the Chambe , hi ope a ion main effec eem o ha e been o an agoni e and alienate non-comba an . 53 In the academic literature on the conflict, however, the view of Operation North is quite different. First, they recognize that at this point,
M e eni s NRA was not recognized by all in Northern Uganda as a legitimate government, given they carried out a military coup only a few years prior.54 Also left out of he Chambe na a i e a e he c ime , ch a ealing nea l e e head of ca le in
50Amnesty International. Uganda: Breaking the circle: Protecting human rights in the northern war zone. 2011 by Amnesty International. 51 Dolan 2009, pages 61-62. 52 ICC Trial Document para 8. 53 ICC Trial Document para 8. 54 Ryan Butyniec, "Muno-Lawake: contrasting established literature to the critical and local understandings of war in Lord's Resistance Army and the Government of Uganda conflict-affected Acholiland, northern Uganda, PhD di ., Ca le on Uni e i , 2011, p. 45 (he eaf e efe ed o a B niec 2011). 21
Acholiland during this operation.55 The final, and important point, is that this operation
a he pe iod in hich he NRA/M occ pied Acholiland and in alled i mili a a
he de fac o go e nmen . 56
Following the discussion of Operation North, the Chamber mentions Betty
Bigombe, Minister of State for Pacification of Northern Uganda, who tried to take a middle-g o nd app oach o he i e of in genc in No he n Uganda hile ing o keep the door open for negotiations, but also introducing some vigorous anti-insurgency mea e , ch a a ming comm ni defen e g o p called a o b igade . 57 In the case of the bow-and-arrow brigades, the Chamber portrays the matter as if citizens unanimously acquiesced to the will of the military government and decided as a whole people to form these brigades. Historians and ethnographers, on the other hand, have pointed out that the creation of these groups was decided by a small group of elders and in mo ca e he e Local Defen e Uni (LDU ) e e fo cibl c ea ed. 58 Bow-and- a o b igade ca ed he LRA/M, in he Chambe ie , o e pond o hi i h violence against perceived government collaborators.
Shortly after Bigombe negotiated a ceasefire in early 1994, President Museveni put out an ultimatum in February of the same year which spurred more killing. Museveni, a he Chambe no e , claimed ha he had ecei ed mili a in elligence ho ing he
LRA was only involved in peace negotiations in order to build up their military capacity,
55 Finnstrom 2008, p. 71-72. 56 Butyniec 2011, p. 46. 57 ICC Trial Document para 8. 58 Butyniec 2011, p. 46 & Dolan 2009, p. 45. 22
but it has also been noted that, although expensive, the war in the north had certain poli ical ad an age fo he Ugandan go e nmen . 59 The Chamber also notes at around
he ame ime of hi , he NRA became he Ugandan People Defence Fo ce (UPDF).
Now, getting to the most eg egio e o made in he Chambe hi o ical analysis that has major implications for main argument of this thesis is what they term an
an i-in genc a eg he eb he Ugandan go e nmen a o emo e he population from rural areas where it might assist the rebels, either out of choice or due to fea of ha o ld happen o hem if he did no . 60 While the Chamber did mention
ha in ome in ance hi an i-in genc a eg a iolen l enfo ced, he greatly undersell the impact this had on the Acholi people and the harm caused by the
State in this forced removal campaign against an entire population. Originally, this began by just moving the people in rural areas to towns, however, once there became to be too many people in the cities, they were moved into internally displaced person (IDP) camps.
The Chambe f he no e ha he IDP camp e e ppo ed o be p o ec ed b mall g o p of UPDF oldie , ha [c] l i a ion a e diffic l and mo emen o ide the camps strictly limi ed , and ha [f]ood and o he commodi ie e e p o ided b aid agencie ; ho e e , he p e en he e i e a if he a e done b ome in i ible agen that is acting beyond any framework of blame or agency.
This contrasts with the ways in which this forced removal policy is treated in the academic literature, where much of the blame is put on the GoU for their neglect of the
59 ICC Trial Document para 9. 60 ICC Trial Document para 10. 23
Acholi and other people who were made into internal refugees in their own country by their government. However, due to the in-depth nature and importance of this specific topic, it will be discussed in a section at the end of this chapter.
Following this, the Chamber then gives some information on the relationship between the Sudanese government and the LRA/M. They state ha he e a li le o e en h ia m fo he LRA among he Acholi pop la ion in Uganda and ha he LRA/M did no el on ha ppo b in ead ha f om he mid-1990s onwards, assistance was offe ed f om S dan. 61 This second part about Sudan is consistent with the work of
chola , ho e e he fi pa abo he gene al pop la ion ppo of he LRA/M i misleading. A better way of stating that point is that the Acholi population generally supported the political ends of the LRA/M, that being the downfall of Museveni and the gaining of political power, but not the violent means by which sought to achieve them; ho e e , hi poin i no mean o o e gene ali e an en i e pop la ion poli ical belief .
While there are obviously divergent views and different levels of support depending on
he indi id al, i i impo an o no e ha he Acholi people ie of he LRA/M and he
GoU is much more complex than the way in which public support is portrayed in this document. The Chamber also discusses the dynamic whereby the Sudanese government funded and held base camps for the LRA/M in South Sudan while helping to fight a
e i ance g o p in S dan called he S dan People Libe a ion A m hile conc en l
61 ICC Trial Document para 12. 24
la nching a ack in o Uganda again he Ugandan army and civilians in a continuation of i o n conflic i h he Ugandan go e nmen . 62
The Chamber wraps up this section with a discussion on the incursions by the
Ugandan government against the LRA/M in South Sudan. Soon after the 11 September
2001 attacks, the Sudanese government, due to international pressure, gave permission to
he I on Fi inc ion hich began in 2002. Thi in ol ed an e ima ed 10,000
Ugandan troops, logistical support from the United States of America, and the use of helicop e g n hip . 63 The Chamber notes that hundreds were killed, many LRA/M ba e e e de o ed, b in he end he LRA b oke p in o malle ni hich e e able o o flank he Ugandan fo ce . 64 This description of Operation Iron Fist falls short of explaining the reality of the Operation. In its inception, there was supposed to be a deadline of 2 April 2002 after starting on 8 March 2002 after the UPDF got permission from the Sudanese government to carry out this Operation in their sovereign territory.
However, there were numerous extensions to the period of time for them to carry out this
Operation in Sudan and even with that, it was still a major failure to attack the LRA/M.65
The final point the Chamber goes over in this section is that this led to the referral of the situation to the ICC by the GoU on 16 December 2003.66
62 ICC Trial Document para 12. 63 ICC Trial Document para 13. 64 Ibid. 65 Dolan 2009, p. 54. 66 ICC Trial Document para 14. 25
What does the ICC Narrative Ignore?
This section will cover three major points about the history of the conflict that are almo en i el glo ed o e in he ICC ial document. It is necessary to mention these points as they are crucial to have a contextualized and holistic perspective of the conflict, especially given that the question of justice is involved for Ongwen and the individuals affected by his crimes. These points are also necessary to avoid a simplistic narrative about the conflict. Furthermore, these issues are specifically the ones in which the GoU is acting as the aggressor in the conflict, and this is not meant to convey a narrative purporting them as the sole aggressors. Rather, the purpose of this section is to show that the ICC misses major points throughout the history of the conflict that are examples where the GoU and UPDF are culpable for their actions. This matters in this case given that the warran fo a e a e onl o fo ho e on he LRA/M ide of he conflic when crimes were committed by the state against the Acholi. The three points addressed in this section are the boo kec bandits, the IDP camps, and the issue of the GoU enacting the Terrorism Act shortly after the Amnesty Act.
The first of the three points glossed over by the Chamber in their section on the history of the conflict is the boo kec bandits. The boo kec bandits were a sort of pseudo- operation that, while not institutionally a state organ, were proven to be supplied grenades and weapons by military commanders in the UPDF. In the local language, boo is a spinach-like vegetable and kec an la e o bi e ; h , [ ]he local epi he , hen, indicates that boo kec bandits prefer to loot nice food such as meat at gunpoint, rather
han o o k in he ga den like hone people o li e on poo man food, ha i , local 26
ege able . 67 Many in al Acholiland fea bandi mo e han he fea ebel 68 due to the brutality of their attacks. One common phrase that would be uttered to one researcher d ing hi field e ea ch in Acholiland, S e ke Finn om, a [ ]he ebel , a lea , a e open about their business, but if you encounter boo kec, ne e look hem in he e e . 69
One way in which the weapons are provided is whenever the UPDF either captures or finds rebel armories in the bush . Instead of sending them all away to get registered,
Ugandan oldie ill keep ome of he cap ed eapon fo highl d bio pe onal use, such as night robberies and petty harassment carried out by the notorious boo kec bandits, often with the tacit ag eemen of local a m commande . 70 Furthermore, during some of the lulls in fighting throughout the history of the conflict, when only small pockets of rebels remained in certain areas, those living in Acholiland were still under threat of these bandits, as they continued their activities regardless of the broader conflict.71
One example of crimes committed by this State military supported pseudo- operation is the attack on a family in Pagak IDP camp. One night, at around two in the mo ning, a famil home, consisting of a mother, father, and infant son, was attacked by one of these groups of bandits. The mother was forced to open a door after it was banged on repeatedly; however, the bandits threatened them by repeating that they would throw a
67 Finnstrom 2008, p. 3.; this section relies mostly on Finnstrom for evidence, however for more on the boo kec bandits, see also Adam Branch, Displacing human rights: War and intervention in northern Uganda, Oxford University Press, 2011. 68 Finnstrom, 2008 p. 3. 69 Ibid. 70 Finnstrom, 2008 p. 153., italicization is my own. 71 For more on this, see Finnstrom 2008, p. 86. 27
bomb in their house if they do not comply. They did raise an alarm for the UPDF soldiers who were supposed to be protecting those living in IDP camps, but there was no response to their pleas for help. Shortly after, a bomb exploded, harming all three of the family members to the brink of death. Luckily, they survived after being in the hospital for months; however, all three of them still suffer from lifelong injuries from the incident and trauma and still face threats from the same groups.72
Events such as these, while incredibly brutal, are infrequent compared to the sheer number of injuries and death caused by the conditions in the IDP camps. By the late
1990 , he n mbe of di placed pe on had eached nea l o million pe on in o squalid internally displaced persons (IDP) camps, where roughly 1,000 died each week d e o he e ched condi ion . 73 The individuals living in these camps were corralled into horrid living conditions which the government forced them into and failed to provide adequate care and materials for them to survive. The mixed motives of the policies to put those living in Northern Uganda further elucidate some of culpability for the criminal nature behind the actions of the GoU and UPDF during the conflict.
For exploring the horrid nature of the violence committed on those living in the camp , Johan Gal ng di inc ion be een biological and ph ical iolence. Biological
iolence i impl iolence hich ed ce oma ic capaci (belo ha i po en iall po ible), and ph ical iolence a ch, hich inc ea e he con ain on h man
72 For more on this incident, see Finnstrom 2008, p. 1-3. 73 Butyniec 2011, p. 1. 28
mo emen . 74 Thus, in the case of the IDP camps in Northern Uganda, the biological violence would be that the means of survival (i.e. food security, access to water, etc.) are controlled and limited by the government or aid organizations, leading to poor access to necessary materials for daily life, whereas the physical violence is the daily acts of violence against individuals committed by the LRA/M, boo kec bandits, and the UPDF.75
Furthermore, there are numerous examples of the direct physical violence committed by the UPDF on those living in the IDP camps, which are all brushed over in the ICC trial judgment document. For example, if women went to spring after the sundown curfew to get enough wate fo hei familie fo he da , a m oldie o ld
ome ime bea hem. 76 In another example, which connects back to the idea of the IDP camps being dehumanizing, one woman got arrested for going into the Bush to defecate
hen, [a] g npoin he [UPDF soldiers] forced her to smear her head with her own feces, after which they made her go from camp to camp, warning others not to disobey
hei o de . 77 It is thus clear that humiliation and dehumanization are major aspects of the lives of those living in the camps on top of the palpable insecurity of living in an area that constantly had the potential to be attacked by the LRA/M. As Dolan argues in his book Social Torture, the violations of the rights of those in IDP camps include the people igh to livelihood, health and education services, and the right to protection of ph ical ec i . A he a e , [ ]he e iola ion e e f ndamen all impo an o he
74 Johan Gal ng, Violence, peace, and peace e ea ch, Jo nal of peace e ea ch 6, no. 3 (1969): p. 169. 75 Finnstrom 2008, p. 145. 76 Ibid. 77 Finnstrom 2008, p. 145. 29
processes of physical, psychological, and cultural facilitation, as well as humiliation, and formed the foundations for the argument that this was a situation whose primary function
a ocial o e a he han a . 78
Another issue of concern with the IDP camps that is glossed over in the trial judgement document is the way in which the GoU framed them. They were first proposed a p o ec ed illage , e en ho gh he UPDF did a poor job of distributing soldiers to all the camps to protect all of them, hence the creation of the bow-and-arrow brigades in the camps. One community leader at an IDP camp remembered the original intent of the camp a he e e being e p: [ ]o a oid abd c ion; o a e he p ope ie of he innocent; to save the lives of the people; [and] to cut communication between the masses and he ebel . 79 While the first three motives seem innocent and well intentioned, the last motive shows the central issue and ulterior motive with the GoU and UPDF instituting them. This issue is that those living in the camps were always under suspicion of collaborating with the LRA/M prior to there being evidence to treat them as such beyond their ethnic identity.
One final issue that leads to a more holistic understanding of the conflict is the issue of conflicting policies concerning defectors from the LRA/M in the early 2000s.
The first of these policies is the Amnesty Act, passed in January of 2000. The Act
offe ed amne fo an Ugandan ho ha an ime ince he 26th day of January 1986 engaged in or is engaging in war or armed rebellion against the Government of the
78 Dolan 2009, p. 110. 79 Dolan 2009, p. 108. 30
Rep blic of Uganda. 80 Those who did so, were to be pardoned from criminal prosecution. The implementation of this policy took a while, and there were restrictions that this only applied to those who were above twelve years of age or had been in the
LRA/M for a period longer than four months. However, the second piece of legislation, the Anti-Terrorism Act, passed in March 2002, negated the applicability of the Amnesty
Act to members of organizations deemed terrorists by the government, including the
LRA/M. In short, due to it being passed through the legislation at a later date, the Anti-
Terrorism Act took precedence and thus the Amnesty Act did not apply to ex-LRA/M members, making it nearly impossible for anyone to defect from the LRA/M without facing some sort of legal punishment from the government.81 Not only does this have implications for the conflict as a whole, but also specifically for judging the guilt of
Ongwen in terms of his being under duress, which will be discussed in-depth in the next chapter.
Conclusion
Th , he hi o ical ba i of he ICC nde anding of he conflic be een he
LRA/M and GoU/UPDF is shortsighted. The GoU and the UPDF are not fully presented as culpable for their actions as a more holistic historical view of the conflict would provide. The Chambe finding do no blame he GoU fo he poo li ing condi ion , d e o lack of food, acce o a e and ade a e heal h facili ie offe ed o ho e ho
80 Dolan 2009, p. 51. 81 Dolan 2009, p. 53. 31
were forced into the IDP camps by the GoU,82 even with testimonies of individuals, such as D-0083, claiming ha he Ugandan go e nmen ga e o he pop la ion an
l ima m o mo e in o he camp . 83 The construction of this narrative is not only problematic for ascertaining justice in the case of Ongwen specifically, but it also has further implications beyond that for political reasons. The abdication of state and military leaders of guilt through the creation of a narrative that ignores their abuses of those living in IDP camps in Northern Uganda is problematic since it leads to a lack of accountability for the state actions and furthers the narrative that only non-state actors were responsible for crimes against civilians.
82 ICC Trial Document para 1105. 83 Ibid. 32
Chapter III Intangible Grounds Excluding Criminal Responsibility: Analyzing Bias in the C a be T a J d e e D c e The Chambe appa en p e ppo i ion of Dominic Ong en c iminali led o an ac i e bia in he eading of he Defence a g men . No onl doe hi c ea e in mo n able ba ie in he Defence abili o make an argument on the basis of grounds excluding criminal responsibility, but it also violates Article 66 of the Rome
S a e, hich a e he follo ing: E e one hall be p e med innocen n il p o ed guilty before the Court in accordance with the applicable la . 84 Thus, instead of him being seen as innocent before proven guilty, due to his association with and high rank in what has been labeled as a terrorist organization, he is instead viewed as guilty, with the weight put on the Defence team to establish exceptional circumstances in his case.
The Defence presented two arguments about Ongwen during the time of the charges: that he suffered from mental defect or disease and operated under duress. These two claims were offered as, under Article 31 of the Rome Statute, they are grounds that would exclude him from criminal responsibility.85 One major issue for the Defence in arguing these specific points was that they would not only have to prove that Ongwen had either mental disease or that he was acting under duress, but also that he had either of those conditions during the period of time he was accused of these crimes, over a decade prior to this case being tried. In the conclusion of this section of the report, the Chamber
84 Rome Statute Article 66(1). 85 Rome Statute Article 31. 33
found that he neither had mental disease or defect or that he was operating under duress; however, the case that they made had many logical inconsistencies with the rest of the trial judgment document and contradicted their prior findings about the LRA/M and its effects on individual p cholog i ho an eal j ifica ion. Th , hi ec ion ill be divided into two parts: one on the section on mental defect or disease and the other on d e and ill ho ho he Chambe a g men a e no onl fa l and mi e evidence from primary sources out of context, obfuscating their original meaning, but also that given the principle of needing evidence beyond a reasonable doubt as defined earlier in the document, that the ability of the Defence to make a case for either mental duress or defect was impossible given the parameters of the International Criminal Court.
It is important to note that this section is not an attempt to retry the case. Rather, the p po e of hi ec ion i o ill mina e he bia in he Chambe ie gi en that, since the warrant was put out for his arrest in 2005 and his association with what has internationally been seen as a terrorist organization, Ongwen was already understood as a guilty and violent criminal before the trial even began.
On the Defence Claim of Men al Defec or Di ea e
Under Article 31(1)(a) of the Rome Statue, a person is not criminally responsible if, a he ime of ha pe on cond c [ ]he pe on ffe f om a men al di ea e o defec ha de o ha pe on capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of 34
la . 86 The Defence for Ongwen argues that he did in fact suffer from mental disease or defec and ha he P osecution has not met its burden to disprove the elements of the defence be ond a ea onable do b . 87 One aspect of this part of the case that is impe a i e o nde and fo i ignificance fo he a g men made i ha he fac o be determined is the po ible p e ence of a men al di ea e o defec a he ime of he
ele an cond c . The de e mina ion doe no conce n he acc ed men al a e d ing
he e p oceeding . 88 The Chamber does state that inferences from the latter to the former are possible, however, as will be made evident when addressing the evidence in this section, this seems to be an empty statement rather than something the Chamber held themselves to. This section, then, will analyze the arguments made by the Chamber that eventually found him to not have mental defect or disease. This thesis will trace their arguments from four sections as broken down in the trial judgement document, and then look at their conclusion for this section. It is important to note for organizational purposes
ha he e ec ion a e no b oken do n b a g men o opic ela ing o he Defence claims, as the next subsection on duress will be, but rather is broken down by expert evidence from myriad mental health experts.
The first section covers the expert evidence of three individuals from the
P o ec ion eam of e pe : P ofe o Me e , D Abbo, and P ofe o Weie all-
86 Rome Statute Article 31(1)(a). 87 Defence Clo ing B ief , filed on 24 Feb a 2020, 13 Ma ch 2020, ICC-02/04-01/15-1722-Conf-Corr (public redacted version available: https://www.legal-tools.org/doc/xibh9t/), para 674 (hereafter referred to a Defence Clo ing B ief ). 88 ICC Trial Document para 2454. 35
Pust.89 Before breaking down this section further, the Chamber first includes a section on
he p elimina i e ela ing o hei e idence a he Chambe con ide i nece a o provide its conclusions in relation to two issues which were discussed between the parties and hich ha e a gene al bea ing on he con ide a ion of he e idence a hand. 90 The fi of he e i e i he Defence a g men ha [ ]he P o ec ion did no di p o e beyond a reasonable doubt that culture impacted on the conclusions of M Ong en men al heal h. 91 The Defence believes that their experts factored in the importance of culture in their conclusions while the experts provided by the Prosecution did not; however, it is unclear on what specifically is meant by culture, what factors it would include, and what bearing this would have on the case as a whole. The second, and a g abl mo e impo an poin o b ing p, i he Defence poin ha i i no fa l ing the Prosecution for not being able to interview the client when he had refused their requests: he agreed only to be interviewed by the Defence Experts and the Court- appoin ed e pe D de Jong none of hem (P o ec ion e pe ) ackno ledged hi a a shortcoming in the preparation of their Reports, nor included a caveat in hei Repo . 92
Thi , ho e e i con e ed b he P o ec ion a each membe of he P o ec ion eam of experts did technically mention their lack of ability to interview Ongwen; however, not all of them mention its bearing on them only being able to base their conclusions on written and video evidence they were provided.93
89 ICC Trial Document page 870. 90 ICC Trial Document para 2458. 91 Defence Closing Brief, p. 176. 92 ICC Trial Document para 2464. 93 ICC Trial Document paras 2464-2469. 36
With that issue explored, the Chamber first explores the report of Professor
Gillian Mezey, a professor of Forensic Psychiatry at St Georges University of London.94
Professor Meze p incipal concl ion i a follo :
Based on a review of all the material I have been provided with, I do not consider that there is evidence to show that Mr Ongwen is currently, or has at any time, suffered from Posttraumatic Stress Disorder, Depressive Disorder (although he ha mild an ien dep e i e em d ing hi inca ce a ion), Di ocia i e Disorder or any other significant mental illness or disorder.95 Important to her case, she does acknowledge that Ongwen was exposed to trauma, however she claims that not all people exposed to trauma develop PTSD and that PTSD
ic im a e no gene all a ocia ed i h epea ed and pe i en agg e ion and
iolence. 96 F he mo e, P ofe o Me e a g e ha Ong en cce in he LRA/M is incongruous with someone suffering from mental disorders and claims that if he were suffering from these, his functioning would be impaired to the extent that he would not have been able to become a brigade commander.97 She further states, specifically about the diagno i of PTSD, ha The e mp om a e o e e e and o in i e ha he stop the individual from being able to carry on with their normal day-to-day functioning.
The canno o k. The canno d . The canno lead no mal famil li e . The don in e ac i h hei f iend . 98 Not only is this view of mental disease or defect deterministically ableist in nature, assuming that those who have mental illness are essentially not functional, but this specific quotation illuminates one major flaw in
94 ICC Trial Document para 2470. 95 In e na ional C iminal Co , P ofe o Me e Repo , UGA-OTP-0280-0786, at 0811. 96 In e na ional C iminal Co , P ofe o Me e Repo , UGA-OTP-0280-0786, at 0811-12. 97 ICC Trial Document para 2473. 98 International Criminal Court, P-0446: T-162, available at: https://www.legal-tools.org/doc/2ee30b/, p. 21, lines 9-19. 37
Profe o Me e epo , and ha i ha he f ame o k of anal i i inapp op ia e o address the situation of someone operating in the context of a protracted conflict who was abd c ed a a child, ne e li ing a no mal life. The c i e ion fo diagno i that she puts fo h a e ab d fo he ca e. Ong en did no o k , d , lead a no mal famil life, interact his friends, or live his life in the same way that someone being diagnosed with
PTSD in the context of her world, that is in a university setting in Tooting, United
Kingdom, would be. Thus, while her report is not entirely useless for this reason, it should be treated with due criticism in finding the facts of the case; instead, the Chamber find P ofe o Me e epo clea and con incing, and her testimony in the courtroom imp e i e and ha he e idence of P ofe o Me e i of g ea a i ance o he
Chambe in making i finding . 99
The next individual whose report is considered is that of Dr Catherine Abbo, a
Child and Adolescent Psychiatrist at Makerere University in Uganda. One of the first poin he Chambe b ing p ha i pec fo e ioning i he a ing ha [i] appea like p ill he ime of [Dominic Ong en ] abd c ion, he comple in e ac ion between individual, societal, and ecological factors over the course of his life had gone on a i fac o il ell. 100 This is a bizarre point to bring up as it is seems to try and dismiss the impact of his abduction and inculturation into the world of the LRA/M on his psyche. None hele , he en on o concl de ha Ong en o ld eem o ha e ma ed developmentally against all odds with flexibility of moral reasoning which seem to have
99 ICC Trial Document para 2478. 100 ICC Trial Document para 2480. 38
been no f ll e e ci ed befo e he become op commande . 101 B mo al de elopmen she is alking abo he po con en ional le el hich i cha ac e i ed b he pursuance of impartial interests for each member in society as well as the establishing of self-cho en mo al p inciple . 102 All of that said, not only is it unclear how she came to this conclusion, but it is also an absurd claim to make as a psychiatrist given that she never had the opportunity to query Ongwen about his developmental periods in life. She f he goe on o make he main concl ion ha he e a no e idence f om he materials provided that the illnesses identified by the other experts were directly linked to
he c ime Dominic Ong en allegedl commi ed. 103 This statement, however, covers
p a majo i e in he e ion of Ong en men al a e ho e e i h he important caveat that there was no evidence from the materials provided. Her analysis, therefore, instead of being treated as a truth about the case, should be interpreted as inconclusive due to a lack of sufficient evidence. However, even with these seemingly obvious o e igh in hi anal i , he Chambe find D Abbo e pe epo and e imon pe inen and al able fo e in i finding . 104
The next report considered is that of Professor Roland Weierstall-Pust, a
Professor of Clinical Psychology and Psychotherapy at the University of Applied Science and Medical University in Hamburg, Germany. He begins his report with a discussion of
a ma- pec m di o de ( ) and make clea he bjec i e na e and ha i need no
101 ICC Trial Document para 2480. 102 ICC Trial Document para 2481. 103 ICC Trial Document para 2483. 104 ICC Trial Document para 2485. 39
necessarily lead to a trauma- ela ed men al di o de . 105 This is a truism at this point given the fact that both experts who presented before him made a similar statement.
Ho e e , he goe on o a e ha M . Ong en e pe ienced a lea one a ma ic e en and suffers from a trauma-related disorder is not sufficient to draw any conclusions about hi capaci o app ecia e he ongf lne of hi ac ion . 106 This statement is misleading as it views his abduction by the LRA/M as a child and all events thereafter as
a lea one a ma ic e en , hich e e el underestimates the impact of growing up in an environment such as the LRA/M. However, Professor Weierstall-Pust does find it plausible that Ongwen showed signs of a mental disorder during the period of the cha ge , b goe on o a e ha he e i no ufficient evidence to justify the diagnosis of a manife men al di o de d ing he pe iod be een 2002 and 2005. 107 All of that
aid, he Chambe find hi e idence en i el con incing and hi e imon in he courtroom impressive in its clarity and comp ehen ibili and find hi e idence of g ea a i ance o he Chambe . 108
Follo ing hi fi ec ion co e ing he P o ec ion e pe i ne e , he ial judgement document goes onto a section on corroborating evidence from the trial in relation o he e ion of he Defence claim of Ong en ha ing men al defec o disease. This section is essentially the assessment of the Chamber based on the reports made b he e pe . One impo an poin ha he make i ha an a e men of men al
105 ICC Trial Document para 2489. 106 ICC Trial Document para 2490. 107 ICC Trial Document para 2491. 108 ICC Trial Document para 2496. 40
health cannot be made in the abstract, but only on the basis of the facts and evidence
ela ing o he pe iod nde e amina ion. 109 Prima facie, this is a logical statement; however, it begs the question: What facts and evidence would be sufficient to prove
Ongwen suffered from mental disease or defect over a decade prior to the trial after multiple experts came up with, at best, inconclusive arguments? As this section shows, sufficient evidence to sway the Chamber to believe that Ongwen suffered from mental disease or defect was nearly impossible to provide.
In terms of addressing the evidence of his suffering from mental illness, the
Chamber relies on the report of Professor Mezey, who argues that he would have visible and perceivable manifestations of the symptoms of his mental diseases which would have been noticed by those around him.110 In ho , he Chambe a g e ha ch e idence did no an pi e d ing he ial .111
The Defence raised two major objections to this: first, that the Chamber was looking for lay people to diagnose Ongwen and that individuals around him would perceive conduct resembling mental disease as spirit possession. The first of these two objec ion a e di mi ed, and he Chambe a e ha he e e ci e con i of a e ing whether any descriptions in particular of the conduct of Dominic Ongwen correspond to
mp om of men al di o de . 112 The econd objec ion i add e ed a follo : he possibility that witnesses may regard symptoms of mental disorders as spirit possession is
109 ICC Trial Document para 2497. 110 ICC Trial Document para 2498. 111 Ibid. 112 ICC Trial Document para 2501. 41
immaterial, insofar as they would still describe certain symptoms, irrespective of the ca e a ib ed o hem. 113
The Defence further submits two other issues with the way in which the
Prosecution analyzes the issue of mental defects or diseases. First, in response to their claim that those individuals around one affected by mental illness would readily be able
o pe cei e mp om of men al heal h, he hold ha a [m]en al illne , incl ding severe mental health illness is visible 24/7 to anyone observing but especially those clo e o he pe on affec ed i a m h, and ha he mp om of men al di o de fl c a e o e ime. 114 The Chamber responds by arguing this misconstrues the problem a hand, and ha [ ]he p opo i ion ha pe on close to the individual under examination may recognize symptoms of mental disorders is not the same as stating that mental illness
o ld nece a il be i ible a all ime . 115 Further in response, the Chamber also notes that, in the case where mental disorder is present, fluctuation of symptoms could be reason for contradictions in evidence; however, they do not find this argument con incing gi en he appa en comple e ab ence of e idence of fac hich co ld be
een a mp om of men al di o de . 116
The next issue brought up is that of the Defence questioning the reliability of the
i ne e . The a g e ha fo me LRA membe a e n eliable i ne e on he i e because of their own victimization in the same coercive and hostile environment of the
113 Ibid. 114 ICC Trial Document para 2502. 115 Ibid. 116 Ibid. 42
LRA. 117 In response, the Chamber maintains that this argument is proved incorrect because many former LRA/M members readily offered credible and detailed testimonies about their experiences in the LRA/M and about Dominic Ongwen.118 This contestation of the Defence a g men , ho e e , mi ep e en hei claim. The Defence a g ed ha the witnesses are unreliable on this issue specifically and the Chamber responds with a generalized answer as if they argued all the witnesses on all grounds are unreliable. This con cio igno ance on he n ance of he Defence a g men i a ec en heme
h o gho hi en i e ec ion of he doc men on hei a g men of Ong en g o nd excluding criminal responsibility. This causes a negative outcome for the Defence and
Ongwen, as it seems no matter what argument they put forth, it is a priori falsified.
Following this section, the Chamber offers the evidence given by witnesses on their observations of Dominic Ongwen. There are many witnesses quoted here, and, due to the length and repetitive nature of their statements, this thesis will just quote one example which is emblematic of the rest of the section. One witness, P-1042119, gives the most holistic description of him, with testimonies about his personal kindness and professional rigor:
When I joined the bush, the LRA, when I was abducted and I was amongst them, fi Dominic Ong en a n a bad pe on. He a a people pe on. I o ld talk to people and stay amongst people, hid together with people. You would
117 ICC Trial Document para 2504. 118 Ibid. 119 Throughout the Trial Judgement document, the Chamber refers to witnesses with an identification code that is either P-XXXX, D-XXXX, or V-XXXX. Not every one of these individuals have much information about them provided, however those who do have some important details about who they are collected into a table located in the Appendix. For any identity code listed that is not on the list, the extent of the information about who that person is has been provided in the text. 43
share laughters [sic] and jokes. He was a person who cared about people. But that was when he was still having a lower rank. When he, when he was promoted and he started climbing through the ranks there were changes. You know, when you, you are promoted and you leave the ranks of a private you also change the way you behave, you need to start behave like a commander. Like for me, I would not go close to him, he was already a commander. I cannot go and familiar him all the time. A commander is having a different responsibility than an ordinary gap an ordinary soldier. There was a gap now between him and the ordinary soldiers, but he was still good to his soldiers. I did not notice anything which was strange. But when he was in operation room he was tough. He was tough because by nature of being a commander he thought easy to control the soldiers. He was tough on the rules and he always wanted things done according to the schedule. For example, going to collect food he would come up with tough orders to go and collect food. That, according to me, is how a leader is changed because of the responsibilities ha he ha . Tha ha I kno abo Dominic.120
One o he poin of in e e b o gh p b he Chambe i hen he no e ha no hing in the testimonies of P-0099, P-0101, P-0214, P-0226, P-0227, P-0235, or P-0236 indicates that these women, who were held as so-called i e o o he i e cap i e in Dominic
Ong en immedia e p o imi a a io ime o e he co e of a o nd 20 ea , observed behaviour on the part of Dominic Ongwen suggestive of a mental disease or defect. P-0214 e ified ha Dominic Ong en a aking ca e of p ope l , and ha he ed o ea e all and ell . 121 It is important to note on specific aspect of this piece of evidence: the time period in which these women stayed with him. The
Chamber notes that these women were with him over a time period of around 20 years, which would put most of their testimonies outside of the time period with which the
Chamber would have accepted evidence indicating the presence or lack of mental disease
120 International Criminal Court, P-0142: T-73, available at: https://www.legal-tools.org/doc/a62a3b/, p. 16, lines 2-22. 121 ICC Trial Document para 2519. 44
or defect, as previously explained. Thus, it seems as if the rules set by the Chamber are, at times, uniquely applicable to only evidence that would be supportive for the Defence.
For their concluding argument in their subsection on corroborating evidence from
he ial, he Chambe fo nd, in acco dance i h he e imon of P ofe o Me e , in particular that many of the actions undertaken by Dominic Ongwen, as found by the
Chamber, involved careful planning of complex operations, which is incompatible with a men al di o de . 122 This, as previously stated in the discussion of Professor Mezey, is an ableist view of mental disorders and defects that makes the diagnosis, except in the most extreme of cases, impossible.
The ne b ec ion co e he e pe e idence of he Defence e pe ,
Professor Emilio Ovuga of Gulu University and Dr Dickens Akena, a lecturer at
Makerere University. This section analyzes the reports of these two, however the
Chamber denies the validity of their arguments and deems their evidence and diagnoses of mental disorders as unreliable. They cite six overall methodological problems with their report, which will be covered over the next few paragraphs after first looking at what the Chamber presents from their report.
The first report from Professor Ovuga and Dr Akena were based upon interviews
i h Dominic Ong en a he Co De en ion Cen e in he Hag e, mee ing i h he clinical psychologist, clinical notes, and on in-depth interviews with four of Mr
122 ICC Trial Document para 2521. 45
Ong en clo e a ocia e . 123 The report provides conclusions on the mental state of
Ong en, hich he claim a cha ac e i ed b dep e ed mood and in en e icidal feelings, urges and verbalizations as well a fea e of di ocia i e di o de and features sections on depressed mood, posttraumatic stress disorder, dissociative disorder, and suicidal thoughts, urges and attempts.124 Following this, the report has a section titled
Recommenda ion , he ein he a e he follo ing: M Ong en ffe f om e e e dep e i e illne , po a ma ic e di o de (PTSD), and di ocia i e di o de . 125
They further offer their opinion that Mr Ongwen is not c iminall liable fo hi ac ion
hile he a in he b h 126, hich he Chambe fo nd a ome hing hich i prima facie manife l be ond he cope of he ole of e pe in c iminal p oceeding .127 In ac ali , in ead of epping o ide of hei ole a e pe , he Defence e pe claims are a logical concl ion f om hi epo Recommenda ion . Hence, he bia stemming from a presupposition of criminality, in violation of Article 66 of the Rome
Statute,128 from the Chamber can be seen in this quotation, especially since the Rome
Statute explicitly states that an individual would be excluded from criminal responsibility if [ ]he pe on ffe f om a men al di ea e o defec ha de o he pe on capaci
123 In e na ional C iminal Co , P ofe o O ga and D Akena Fi Repo , UGA-D-26-0015-0004, at 0004-5. See also P ofe o O ga and D Akena Fi Repo , UGA-D26-0015-0004, at 0020-23. 124 In e na ional C iminal Co , P ofe o O ga and D Akena First Report, UGA-D26-0015-0004, at 0013-14. 125 In e na ional C iminal Co , P ofe o O ga and D Akena Fi Repo , UGA-D26-0015-0004, at 0017. 126 In e na ional C iminal Co , P ofe o O ga and D Akena Fi Repo , UGA-D26-0015-0004, at 0015. 127 ICC Trial Document para 2524. 128 Thi A icle in he Rome S a e i i led P e mp ion of Innocence and e en iall a e he ICC ope a e on he a mp ion of innocence n il p o en g il a i i nde ood in he Uni ed S a e j dicial system. 46
to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or he cond c o confo m o he e i emen of he la . 129
Following this, the Chamber then elaborates on the six methodological issues with
he Defence e pe epo , all of hich can be ea il ef ed, ho e e fo he cope of this thesis, only three of them will be addressed, the first, the second, and the sixth.
The fi i e, one p opo ed b he P o ec ion, i ha he e i bl ing of [P ofe o
O ga and D Akena ] ole a bo h ea ing ph ician and fo en ic e pe ha led o a loss of objec i i on hei pa . 130 This claim is derived from the existence of
ecommenda ion fo ea men offe ed b he Defence e pe in hei epo . The
Chambe elabo a e on hi poin , a g ing ha he e i an inhe en incompa ibili between the d ie of a ea ing ph ician and he d ie of a fo en ic e pe 131, arguing further that a treating physician is primarily serving the patient whereas a forensic expert is in service of the court. This issue of objectivity in diagnosis highlights the impo ibili of he Defence o make an a g men fo Ong en ha ing a men al di ea e or defect. The concept of objectivity based on occupational interests, which when discussing mental illness diagnoses is difficult to pin down due to the everchanging diagnostic criteria which is manifestly evident by the evolution of the definitions of mental illnesses, serves as a means through which the Chamber and Prosecution can make an ad hominem argument against anyone who does find, and genuinely believe, that
129 Rome Statute Article 31(1)(a). 130 In e na ional C iminal Co , P o ec ion Clo ing B ief , Filed on 24 Feb a 2020, ICC-02/04- 01/15-1699, para 374. (public redacted version available: https://www.legal-tools.org/doc/msix71/), (he eaf e efe ed o a P o ec ion Clo ing B ief ). 131 ICC Trial Document Para 2531. 47
Ongwen did in fact suffer from mental disease or defect. Nonetheless, this still serves as a fac o ha he Chambe deem nega i el affec ing he eliabili of he Defence reports.
The second supposed methodological issue raised by Professor Weierstall-Pust is
ha P ofe o O ga and D Akena failed o appl cien ificall alida ed me hod and
ool fo e a a ba i fo a fo en ic epo . 132 This claim operates on the presupposition of clear black and white consensus in the academic community on the question of diagno i of men al di o de and defec . One e ample of hi i i h hi c i ici ing he decision by Professor Ovuga and Dr Akena not to use structured rating scales, stating in ead ha hei e i ecommended in cien ific li e a e. 133 One other issue which he criticizes is their use of the DSM-IV rather than the DSM-5, the most current edition of the Diagnostic and Statistical Manual of Mental Disorders. This, however, at least specifically in the case of the diagnosis of PTSD is a hotly debated topic in the psychological community of experts. One example of this is an article by Lori A.
Zoellne e al. i led The E ol ing Con c of Po a ma ic S e Di o de (PTSD):
DSM-5 C i e ia Change and Legal Implica ion . In he concl ion of this article, they men ion ho he change ma be be concep ali ed a a ela i el la ge n mbe of
ela i el mino change , i h a c m la i e effec ha emain nclea and ha he change ill likel e l in ome conf ion in appl ing he criteria and differential
132 ICC Trial Document para 2532. 133 Ibid. 48
diagno i . 134 Therefore, Professor Weierstall-P con e a ion of he Defence e pe epo , in ead of being aken a an objec i e c i i e and ea on o di he findings of Dr Akena and Professor Ovuga, should rather be seen as a subjective critique
ha , a mo , ho ld be a con ide a ion o be eighed again bo h he Defence and he
P o ec ion e pe a g men . In ead, he emplo men of he concep of objec i i in a field marred by subjectivity is only waged against the Defence, further serving as an example the bias of the Chamber in this case.
The sixth, and final, methodological problem the Chamber listed about the reports of P ofe o O ga and D Akena i he fac ha he epo p e en e general analyses and findings, and are not clearly anchored on the relevant period and the more
pecific fac al con e in hich Dominic Ong en ac ed. 135 This shows a bias in favor of the Prosecution, because some of their evidence, as previously mentioned, in support of hei concl ion a aken f om ome of Dominic Ong en i e o e a en period span of time,136 yet they did not lodge this same methodological complaint against that sort of evidence in their reports. This harkens back to a fundamental issue in the case of a lack of belief in Ongwen due to the vilification of him by virtue of him being conceived of as a criminal by virtue of his arrest warrant being put out by the ICC for over a decade. This perception led to a lack of believing the evidence of those
ep e en ing him, and h led he Chambe o concl de ha i canno el on ha
134 Lo i A. Zoellne , e . al., The e ol ing con c of po a ma ic e di o de (PTSD): DSM-5 criteria changes and legal implica ion , P chological inj and la 6, no. 4 (2013): p. 285. 135 ICC Trial Document para 2569. 136 See page 42. 49
evidence [offered by Professor Ovuga and Dr Akena], and in particular not on the diagnoses of mental disorders in Dominic Ongwen which are advanced therein. 137
Before the conclusion wherein the Chamber finds that Article 31(1)(a) of the
Rome S a e i incompa ible i h hi ca e, he e i one final ec ion i led O he e idence di c ed b he pa ie . 138 This section explains why the evidence offered by
Professor Joop T. de Jong, from a 7 January 2017 report, is not relied upon for this case.
Thi e idence a p epa ed follo ing a deci ion b he Chambe of 16 Decembe 2016,
hich o de ed ha a p chia ic e amina ion of Dominic Ong en be cond c ed i h a view to: (i) making a diagnosis as to any mental condition or disorder that Dominic
Ongwen may suffer at the present time; and (ii) providing specific recommendations on any necessary measure/treatment that may be required to address any such condition or di o de a he de en ion cen e . 139 This report found that Ongwen had severe PTSD,
e e e majo dep e i e di o de , and o he pecified di ocia i e di o de .140
Obviously this evidence cannot on its own prove that Ongwen suffered from the same mental disorders at the time of the crimes committed; however, it could serve to bolster the arguments of the Defence. But, due to the bias of the Chamber and their selective use of permitting certain evidence only when it supports the black and white picture which does not exclude Ongwen from criminal responsibility, this evidence is ruled unreliable for the case at hand.
137 ICC Trial Document para 2574. 138 ICC Trial Document page 908. 139 ICC Trial Document para 2576. 140 ICC Trial Document para 2576. 50
On he Defence Claim of D re
Duress, in Article 31(1)(d) of the Rome, is understood as constituting of three elements.141 The fi of he e i ha he d e m e l f om a h ea of imminen death or of continuing or imminent serious bodily harm against that person or another pe on and hi h ea ma be: (i) made b o he pe on o (ii) con i ed b o he ci c m ance be ond ha pe on con ol. 142 The Chambe in Ong en ca e ake a
ic li e ali ic app oach o hi fi elemen , a g ing ha [a] me el ab ac dange o simply an elevated probability that a dangerous situation might occur even if continuously present doe no ffice. 143 Viewing this as such, it is difficult to imagine
ha e idence co ld a i f hei nde anding of he ha m in e ion m be ei he o be killed immedia el ( imminen dea h ), o o ffe e io bodil harm immediately o in an ongoing manne ( con in ing o imminen e io bodil ha m ). 144
The o he o elemen of he S a e defini ion of ac ing nde d e a e a follo . The econd elemen of d e i ha he pe on ac nece a il and easonably
o a oid he h ea .145 Finally, the third element of duress as defined by the Rome Statute i ha he pe on doe no in end o ca e a g ea e ha m han he one o gh o be a oided. 146 Therefore, making a case to prove that an individual was acting under duress in a case taken to the ICC was a very difficult task which the Defence failed to do.
141 Rome Statute Article 31(1)(d). 142 Ibid. 143 ICC Trial Document para 2582. 144 ICC Trial Document para 2582. 145 Rome Statute Article 31(1)(d). 146 Ibid. 51
Ho e e , he e o elemen a e no add e ed in he ca e a he Chambe a e , he first element of duress under Article 31(1)(d) of the Statute is not met, and it is not nece a , o e en po ible, o con ide i emaining elemen . 147
The main a g men of he Defence i ha Dominic Ong en a nde a continuing threat of imminent death and serious bodily harm from Kony and his controlling, mili a appa a . 148 In essence, the Defence argued that the threat of Kony
a main ained h o gh a combina ion of ic di ciplina le hich e e el punished non-compliance with orders, the tight supervision of commanders, and successful assertion of pi i al po e . 149 This argument is in contrast to that of the
P o ec ion, ho a g e ha [a]l ho gh he LRA ome ime inflic ed e e e p ni hmen on i membe fo b eaking he a med g o p le , he Chambe ha hea d no e idence
ha M Ong en s conduct was caused by a threat of imminent death or imminent or con in ing e io bodil ha m again him o ano he pe on. 150 Thus, the burden of proof was on the Defence for this argument, as the Prosecution was arguing from the absence of evidence, whereas the Defence had to procure evidence beyond a reasonable doubt to prove Ongwen was acting under duress. This is not to say the Defence should not have to prove their arguments and provide evidence for their claims, but rather that there appears to have been an extra level of burden of proof in the way which the
Defence ca e had o be made a oppo ed o he P o ec ion. Based on these arguments
147 ICC Trial Document para 2585. 148 Defence Closing Brief, para 680. 149 See generally Defence Closing Brief, paras. 681-722. 150 Prosecution Closing Brief, para 472. 52
and the evidence provided by both the Prosecution and the Defence, the Chamber divides their arguments into i b ec ion : (1) Dominic Ong en a in he LRA hie a ch and he applicabili o LRA di ciplina egime o him ; (2) E ec ion of enio LRA commande on Jo eph Kon o de ; (3) Po ibili of e caping f om o lea ing he
LRA ; (4) Jo eph Kon alleged pi i al po e ; (5) Dominic Ong en pe onal lo al o Jo eph Kon and hi ca ee ad ancemen ; and (6) C ime commi ed in p i a e. 151
The first point covered in this document regarding the evidence presented about duress as a ground precluding Ongwen of being criminally responsible is his status in the
LRA/M hie a ch and he le el of he di ciplina egime applicabili o him. Thi i
ele an , a he mechani m ed in he LRA o en e obedience in i ank e e charac e i ed b hei b ali , 152 ho e e he con end ha he e a a diffe ence between the status of low-ranking LRA members and the higher commanders: whereas the LRA was an effective, hierarchically structured organisation, it was not under the absolute control of Joseph Kony, and Joseph Kony relied on the co-operation of various
LRA commande o e ec e LRA policie . 153 Ongwen is thus understood in an entirely unique context that exempts him from the same rules that applied to the rest of the organization. However, the footnote referenced in making this claim refers to an earlier section in the document addressing the hierarchy of the LRA/M and the communication
h o gho he command c e and do no nece a il impl ha Kon elied on he
151 ICC Trial Document pgs. 912, 918, 921, 929, 933, and 936. 152 ICC Document para 2590. 153 ICC Document para 2590. 53
co-ope a ion of a io LRA commande . Ho e e , hi ec ion concl ion and evidence put forth does not imply that commanders were above the rules of the LRA/M, but instead just that the hierarchical structure of the LRA/M relied on some level of compliance of Kon commande .
F he in hi ec ion, he Chambe ejec he ignificance of Dominic Ong en
a a a child oldie . The den i ele ance fo he de e mina ion he he a h ea relevant under Article 31(1)(d) of the Statute existed at the time of conduct relevant for
he cha ge , man ea af e Dominic Ong en abd c ion, hen he a an ad l and in a commanding po i ion, 154 ignoring the impact of the context of his growing up as a child soldier. This serves as further proof that the findings of the Chamber did not judge
Ongwen in a holistic manner.
This section also has an instance of misuse and misrepresentation of the evidence from one witness, P-0231. The Chamber states that, in reference to explaining how
Ongwen would defy Kon o de on occa ion, ha he i a ion ha i ep e en ed b P-
0231 i incompa ible i h a i a ion of h ea of imminen dea h o e io bodil ha m. 155 To conclude this, they cite two lines from a hearing from witness P-0231 which state the following about what they conclude is a less-than-threatening dynamic between
Ong en and Kon : The al o ad i e on he o de and la e on, if Kon ef e , hen I mean in i , hen hi o de ill be e ec ed. Thi i ha I can e pond acco dingl . 156
154 ICC Trial Document para 2592. 155 ICC Trial Document para 2597. 156 International Criminal Court, P-0231: T-123, available at: https://www.legal-tools.org/doc/86518e/, p. 84 lines 8-9. 54
This is stated soon after P-0231 poin o ha [c]ommande ho o ld e ion ha
Kony had directed, that it should not be done, could be targeted. Dominic was also among ch commande , going o fa a o claim ha he belie e[ ] ha he a a ed by God. 157 It seems farfetched to claim that Ongwen was not under immediate threat if a witness believes the only reason he has not been targeted by Kony is intervention by the divine. Furthermore, other evidence is offered by witnesses that make claims such a if
o don follo Kon command , ha mean dea h i a ed fo o 158; however,
he Chambe belie e hi i n eliable in ligh of he pecific and con e ali ed e idence p o ided b e e al o he i ne e . 159 Therefore, the argument that the
Chamber sides with is merely the one that relies on the abundance of claims for one side of the argument, rather than relying on the validity of the arguments measured against the facts of the case. The prior example in which they misrepresent evidence and the only e plana ion behind hei concl ion being ha he P o ec ion a g men i ppo ed d e o an ab ndance of e idence ca do b on he Chambe concl ion ha Ong en and others high in command in the hierarchy were exempt from the rules of the LRA/M.
The second section covers past executions of LRA commanders on orders of
Joseph Kony. The Chamber addresses the killings of four past LRA/M members in a
compa able po i ion of Dominic Ong en, O i Lagon and Okello Can Odonga in
1998, the killing of Jame Opoka in 2002, and he killing of Vincen O i ome ime af e
157 International Criminal Court, P-0231: T-123, available at: https://www.legal-tools.org/doc/86518e/, p. 83 lines 23-25. 158 International Criminal Court, D-0019: T-236, available at: https://www.legal-tools.org/doc/mxts9p/, p. 16, line 24 p. 17, line 8. 159 ICC Trial Document para 2601. 55
he pe iod of he cha ge in he DRC. 160 The Defence makes the case that these killings p o e ha he e a a eal and immedia e h ea o Ong en life.161
The Chamber analyzes the killings of Otti Lagony and Okello Can Odonga together since they were both executed at the same time for the same reason. The
Chamber states that, based on the e idence f om h ee diffe en o ce , he ea on behind the execution of Otti Lagony and Okello Can Odonga was that they were challenging Jo eph Kon a ho i a he e cl i e leade of he LRA. 162 One of the sources they cite directly opposes this conclusion, even in the lines they cite directly, in which the witness said [ ]he an ed o defec f om he LRA. And fo he e ea on , he testimonies of these two gentlemen are competing, and they do not have the desire to stay in the LRA. And for these reasons, these two should be killed. He then issued the order and the o, he o [ ic] gen lemen e e killed. 163 Instead of the rationale for them being killed being ha he e ioned Kon a ho i a he Chambe a g e , he i e at hand was instead their will to defect from the LRA/M, which would prove a threat to
Ong en life if he e e o ho in en o a emp ed o defec .
The third part of the section on duress covers the possibility of escaping from or leaving the LRA/M. The problem of escaping the LRA/M was covered in the general overview of the LRA/M earlier in the trial judgment document, but in this section the
Chambe p fo h an a g men ha he po ibili fo Dominic Ong en o e cape o
160 ICC Trial Document para 2609. 161 Defence Closing Brief, para. 684. 162 ICC Trial Document para 2611. 163 International Criminal Court, D-0032: T-199, available at: https://www.legal-tools.org/doc/70ff0f/, p. 31 lines 9-12. 56
leave the LRA militates against the conclusion that threat of imminent death or imminent or continuing serious bodily harm to himself or another person caused him to engage in cond c nde l ing he cha ged c ime . 164 Therefore, the Chamber claims to have found that due to his high rank in the organization, the possibility of leaving or escaping from the LRA/M was easier for him than it was for the rank-and-file member of the organization, and thus is further evidence that he was not under duress since he did not take this opportunity.
One ea on he Chambe a g ed hi i ha he e i o e helming e idence ha during the period relevant to the charges, persons of relatively high rank and position in
he LRA cce f ll e caped, incl ding ome p o ima e o Dominic Ong en. 165 One such example is the case of Odong Cow, who oversaw the sickbay that Ongwen was in for his injury in late 2002. Odong escaped around March 2002, and the Chamber made note of the fact that one witness, P-0231 did no kno of an p ni hmen fo Dominic
Ong en in ela ion o he e cape of Odong Co . 166 This example, while showing that the possibility to escape existed, does not prove their argument that there is overwhelming evidence of individuals relatively similar in rank to Ongwen that escaped, as he was the Sinia brigade commander whereas Odong was in charge of a sick bay.
The other e ample i ha of Cha le Lok i a, ho a a ppo commande in
Con ol Al a 167 who was able to escape from a sickbay. While this example is one in
164 ICC Trial Document para 2619. 165 ICC Trial Document para 2621. 166 ICC Trial Document para 2622. 167 ICC Trial Document para 2623. 57
which someone of higher rank in the LRA/M and thus can be corollary to their argument, much of this section is redacted and thus difficult to follow. From what is not redacted, it can be gathered that, after Lokwiya was injury in the 2003 Pajule IDP camp, he escaped f om he ickba i h one of hi o-called i e , o o he gi l ho e e li ing in his ho ehold, a ell a hi child. 168 This is the extent to what is revealed about the
Lokwiya case, as the quotations from him that could prove whether or not he was under duress are redacted, without an explanation. This could be to protect Charles Lokwiya or those who he escaped with, however that logic seems to come in conflict with the fact that the Chamber, instead of using the code name of D-134 that the Defence uses in their closing brief169, uses his real name, giving away his identity already.
To further prove their point, the Chamber then discusses more cases of individuals escaping, while redacting key points of information about them. This does not call into questions their findings; however, it does complicate the ability for academics to address the validity of these claims. After explaining the case of Lokwiya, they discuss the escape of P-0070, while leaving out his rank and the amount of people he helped escape with him.170 The next case examined is that of P-0440, whose position is redacted in the document, but did escape in August of 2004 and did so under suspicion of Joseph
Kony.171 The next case of escape is that of P-0085, and i o ed a omeone ho a some point was second-in-command of [ edac ed] e caped in Ma 2004, [ edac ed]. 172
168 ICC Trial Document para 2623. 169 Defence Closing Brief para 686. 170 ICC Trial Document para 2624. 171 ICC Trial Document para 2625. 172 ICC Trial Document para 2626. 58
This vague language of his position of being a second-in-command of something at an indeterminate period of time makes it difficult to draw connections between this example and he ca e of Ong en. Ho e e , he Chambe , eeing ha he ga e a clea and compelling testimony in relation to his thoughts at the time, and the execution of his e cape plan and hi ha ing i i h o he membe and hi o -called i e a g e ha hi e imon i e emel ele an d e o i ho ing ho a commande co ld manage the risk associated with escaping, and, also very importantly, how he could, if he so
an ed, al o a e f om life in he LRA ho e nde hi con ol. 173
One final example of redaction obfuscating the findings of the case is that of P-
0209, who escaped in November 2009. Not only does this fall out of the period of time of the case when the Chamber made clear they would only accept evidence during the period of time of the charges but this section again redacts the position of the witness.174 The other illogical conclusion drawn from this testimony is a quotation from
P-0209 a ing ha Ong en old him ha he fea ed he Co .175 The Chamber then
ed hi o a ion o a g e ha in hi con e a ion Dominic Ong en did no mention the difficulty of escaping, or any pear of punishment should he fail in an attempt to escape, but referred only to the case before the Court, is further specific indication that
he e a no h ea o him in he LRA. 176 This quotation however, when looking at the interview tran c ip ci ed b he Chambe , a in e pon e o he e ion Wha did
173 ICC Trial Document para 2626. 174 ICC Trial Document para 2628. 175 Ibid. 176 Ibid. 59
[Ong en] a abo he co ca e and indic men ? 177 Furthermore, six lines prior to this statement, P-0209 even stated, in explaining why he shared his plans to escape with
Ongwen, tha he did o beca e [a] fa a I kno , and acco ding o ha I ob e ed,
Kon had plan of killing him (Ong en). 178 It is bizarre then, that the Chamber argues that this one out of context quotation demonstrating his fear of facing the ICC shows that he was under no threat by the LRA/M. This section on individuals of high rank escaping the LRA/M, with abundant redactions, proves no more than the fact that escape from the
LRA/M in some cases was possible by only analyzing the evidence of successful cases of escape instead of looking at evidence listed earlier in the document of those who were killed on attempt of defection from the LRA/M.179
The ne ec ion nde he di c ion of d e co e Jo eph Kon alleged
pi i al po e . Thi i in e pon e o he Defence bmi ion a ing ha Kon e of pi i ali m cemen ed he h ea o M Ong en life and ha of o he . 180 The p e alence, h ea , and eali of Kon pi i ali m in Ong en life i d a n b he
Defence f om Ong en a a a ic im-perpetrator, being himself abducted as a child.
That being said, the Chamber rejects the threat to Ongwen from spiritualism leading to him being nde d e d e o he pe onal acco n b fo me LRA membe ho e e
e ioned abo he effec of LRA pi i ali m on hem. 181 They claim that there was a
177 International Criminal Court, P-0209: T-160, available at: https://www.legal-tools.org/doc/4f365d/, p. 37 line 1. 178 International Criminal Court, P-0209: T-160, available at: https://www.legal-tools.org/doc/4f365d/, p. 36 lines 20-21. 179 See ICC Trial Document para. 917 for examples. 180 Defence Closing Brief, paras 692-693. See also Defence Closing Brief, paras 24-29. 181 ICC Trial Document para 2644. 60
pattern in beliefs and understandings of the world that is applicable in all cases of child abd c ee in he LRA/M: i a onge in he o ng, ne and imp e ionable abd c ee and hen b ided and di appea ed in ho e ho a ed in he LRA longe . 182
This common sense division between young and old in terms of spiritual power is not so clear cut in the academic literature and proves to be a generalized conclusion based on a small sample size of cherry picked evidence to make the case that Dominic Ongwen was not under duress.
Follo ing hi , he Chambe di c e Dominic Ong en pe onal lo al o
Kon and Ong en ca ee ad ancemen a i ela e o he po en ial of him ope a ing under duress. The Chamber discusses some evidence from the ISO logbook, one of the written sources which the Chamber got much of their evidence from, where Kony
p ai ed Dominic o m ch fo hi ha d o k he i doing. 183 This is taken as proof of his performance and role in the LRA/M being valued by Kony. The Chamber then discusses three other occasions in which Kony either approved of or directly supported Ongwen in his role as Sinia brigade commander.184 The evidence in this section could contribute to a complex narrative about the nuanced relationship between Ongwen and Kony, wherein, a afo emen ioned i ne e ha e a ed, Ong en life a nde h ea hile al o being praised by Kony when performing well; however, the Chamber instead chooses to follow a simple narrative based off of a small pool of evidence to skew the reality into
182 ICC Trial Document para 2645. 183 ICC Trial Document para 2660. 184 ICC Trial Document paras 2661-2663.; the Sinia brigade was the brigade which Ongwen was a commander of. 61
seeming as if Ongwen was always viewed in a positive light by Kony, thus being incompatible with the idea that Ongwen was under threat and counting against the argument that he was under duress.
The final, and by far the shortest section discussed under the consideration of
Ongwen operating under duress, covers crimes committed in private. This section is me el o pa ag aph long and add e e on of he P o ec ion a g men abo he
di ec pe pe a ion of e al and gende -based violence by Dominic Ongwen:
They want to persuade your Honours that after having caused these young girls to be beaten into submission and then having them brought to the privacy of his tent, it would have been impossible on the pain of death for him to have said quietly to hem, Ac all , I am no o icked and mon o a o ape a o ng gi l like you. I have only done this to satisfy Joseph Kony. But if you lie here quiet and afe, e can p e end in he mo ning ha e had e . He didn do ha . 185 This argument is flawed. It essentially states that if Ongwen was under duress, then he would not commit acts of violence and would have a clear enough moral compass, after growing up as a child soldier in a previously described hostile environment, to not rape when he was enculturated in a world where rape was normalized. This seems to be mere conjec e and i an np o able a g men . Tha being aid, he Chambe find hi a g men pe a i e. 186 The concl de ha Ong en engaging in hi cond c , hen, had he not, it would have been relatively easy to hide the fact, further indicates that his ac ion e e no ca ed b h ea . 187 Ignoring the illogical nature of the argument, it only applies to counts 50-60 (those relating to private sexual based crimes) against
185 ICC Trial Document para 2666. 186 ICC Trial Document para 2667. 187 Ibid. 62
Ong en, b e en ho gh ha i ecogni ed, he Chambe ill a e i ha pe a i e fo ce fo he Chambe b oade concl ion. 188
This final point then leads to the conclusion on their section on duress, which begins with the following:
It transpires from the above that there is no basis in the evidence to hold that Dominic Ongwen was subjected to a threat of imminent death or imminent or continuing serious bodily harm to himself or another person at the time of his conduct underlying the charged crimes. In fact, based on the above, the Chamber finds that Dominic Ongwen was not in a situation of complete subordination vis- à-vis Joseph Kony, but frequently acted independently and even contested orders from Joseph Kony. The evidence indicates that in the period of the charges, Dominic Ongwen did not face any prospective punishment by death or serious bodily harm when he disobeyed Joseph Kony. Dominic Ongwen also had a realistic possibility of leaving the LRA, which he did not pursue.189 This conclusion, as this thesis has shown, is at best a half-truth derived from out of context evidence and proves that this ICC case did not serve justice in the matter.
F he mo e, hei concl ion goe fo h o den he bea ing of Ong en childhood on him as an adult yet again. They address a claim made by the Defence in which they stated
Ong en a him elf a ic im of c ime , b a ing, he Chambe no e ha Dominic
Ongwen committed the relevant crimes when he was an adult and, importantly, that, in any case, the fact of having been (or being) a victim of a crime does not constitute, in and of itself, a justification of any sort for the commission of similar or other crimes beyond the potential relevance of the underlying facts to the grounds excluding criminal re pon ibili e p e l eg la ed nde he (Rome) S a e. 190 This, however,
188 Ibid. 189 ICC Trial Document para 2668. 190 ICC Trial Document para 2672. 63
comple el mi e he poin of b inging p Ong en a a a ic im-perpetrator: the
Defence in en ion a no o j if hi c ime , b a he o ho ho hi pe onal history affected his mental health and his being in a state of duress under the period of time in which the crimes were committed.
Conclusion
In conclusion, in the discussion of the potential for Dominic Ongwen to either have mental disease or defect or to be operating under duress, the Chamber ignores the significance of what one Refugee Law Report report calls the victim-perpetrator impasse.
A victim-perpetrator is someone who has committed crimes that they themselves were victims of, leading to discrepancies about how culpable they are for their actions.191 For example, in their interviewing of locals in the research for this report, one individual stated he is a victim of the government who was supposed to protect him; another argued he was a victim as most of the victims of the LRA/M are those such as Ongwen whose li e e e p oo ed d e o he conflic ; and one o he a ed ha Ong en a abd c ed, destroyed and ruined. He was made a teacher of a system whose motto value is, kill to
i e. 192 However, at the same time, other former LRA/M abductees and members of these communities still consider him a perpetrator, since he obviously did commit the crimes in question. This crucial dynamic is not considered by the ICC in their report, and that is made brutally clear in their section on grounds excluding criminal responsibility.
191 Ref gee La Repo , Ong en j ice dilemma: Pe pec i e f om no he n Uganda , 2015 b Refugee Law Report, p. 4. 192 Ibid. 64
That being said, this thesis is not arguing that Ongwen necessarily should have been found not guilty for this fact; instead, this is merely to say that the preconceived notions of Ongwen and the factor of bias against him allowed the Chamber to turn a blind eye to the truth and complexity of the situation and dismissed evidence that addressed this aspect of his case.
65
Chapter IV Conclusion This thesis has explored the case of The Prosecutor v. Dominic Ongwen at the
International Criminal Court, paying special attention to the historical narrative crafted by the Chamber and the impact of bias in judging potential grounds excluding criminal responsibility for Dominic Ongwen. It has been demonstrated that, through taking view of the conflict between the GoU/UPDF and LRA/M as on in which there is one aggressor and decontextualizing the violence from the rest of the history of the state, that the
Chamber established a faulty historical narrative that overlooks the crimes committed by the state. Furthermore, this thesis has also drawn conclusions, based on the lack of con ide ing he Defence e idence fo p io ea on , ha he Chambe did no view
Dominic Ongwen as innocent before being proven guilty and instead had a bias against
Ongwen and his legal team. That being said, what does this imply and why does it matter? This conclusion will first discuss the dynamics of justice as established by this case look at the tricky balance between justice and peace in situations of protracted conflict. Then, it will turn back to one of the main critiques of the ICC that can be understood through this case. Finally, this conclusion will explore further areas of study and other research questions that are brought up by this research.
As a corollary to justice, another dynamic in this discussion is the unexpected paradox between dynamics of justice and peace. It would be short sighted to say that the justice in this case for those affected by the crimes Ongwen was found guilty for is not acco n abili and b ing j ice o ome of he ic im of Ong en c ime . 66
Furthermore, it is important to note that the ICC is the first genuine attempt in the international community that has made an attempt to prosecute human rights violations, especially in the case of crimes committed against women and children. However, does this case contribute to ending the conflict and animosity between those who support the political messages of the LRA/M? Does this case in any way help those who are still disaffected with the GoU and are still living in a constant state of insecurity? In short, even though justice was established to some degree, this case, instead of contributing to a long-lasting peace and justice for all the victims of the conflict, in the way some other option such as a truth and reconciliation process would, it contributes to perpetuating a narrative that can be employed by the GoU to renounce themselves of any further responsibility for their wrongdoings.
This brings the discussion to one of the major issues that the author sees with the
ICC in this case: assisting instead of challenging state actors and holding them accountable. As was shown in chapter two, there are numerous crimes for which individuals in the UPDF and Museveni himself could be held accountable for and sent to the ICC. However, the ICC needs compliance with state actors to carry out its arrest warrants and it is therefore unimaginable that a state actor would turn themselves in or request a warrant be put out for their own arrest. Thus, this is a fundamental issue with
he ICC ha ome ha e efe ed o a head of a e imm ni .193 This is a major complication to which any solutions would likely lead to some level of infringement on
193 For more on this idea, see Asad G. Kiyana, "Al-Bashir & the ICC: The Problem of Head of State Immunity," Chinese Journal of International Law 12, no. 3 (2013): 467-508. 67
state sovereignty and thus would not be agreed upon by the international community.
This Achilles heel of the institution does not call into question its existence, but rather is a problem that should be transparently recognized.
Finally, this thesis raises additional important questions. First, the sentence for
Dominic Ongwen has still not been decided, and it is possible for the Defence to appeal the decision. If this does happen, much of this case would be reanalyzed and thus beg further exploration into how the ICC deals with the case. Another research question this brings up is the broader question on the effectiveness of the ICC, as there have been a plurality of academics who have been critical of the efficaciousness of the ICC.
Furthermore, as time goes by, it will be important to analyze the ways in which Museveni and his regime broadly interpret this decision and if it has any impact on the situation in
Northern Uganda now and in the future. One final area of research, which is also very important, is the way in which this decision and case affects Joseph Kony and the
LRA/M in their current fractured capacity.
68
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Appendix Table 1 Witness ID for Name (if "LRA not Defining Insiders" redacted) Rank/Position Characteristics/Credibility Relation to Case
Former LRA P-0054 Redacted Fighter Generally Reliable Participated in attack on Abok IDP Camp
P-0142 Redacted Redacted Credible Close to Ongwen - No longer in LRA
Former LRA Fighter and Highly Credible and Helped establish understanding of LRA P-0205 Redacted Commander Detailed Structure
Former LRA Fighter in Sinia Detailed and consistent P-0231 Redacted Brigade accounts Abducted and escaped
Former member Reliable for information P-0138 Redacted of the LRA on Ongwen Escaped in 2003 Former Battalion Commander of No issues affecting P-0070 Redacted LRA credibility Abducted by LRA but escaped
Veteran LRA Even though clandestine, P-0440 Redacted Signaler still credible Expert on LRA communication & interception
Former LRA P-0085 Redacted Commander Generally credible Escaped in 2004 Generally consistent and P-0209 Redacted Redacted reliable Abducted as a child - no longer a member
Ishaa Activist of a Information about IDP camps in D-0083 Otto Ugandan NGO Credible Northern Uganda Charles Former LRA D-0134 Lokwiya Fighter Mostly Credible Participated in attack on Pajule IDP Camp 72