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ICC judges ignored Ongwen’s background in guilty verdict. Why it’s a mistake

A man in a suit sits between two uniformed standing men
Dominic Ongwen (centre) sits in the court room of the International Criminal Court (ICC) in The Hague, on December 6, 2016. Peter Dejong/AFP via Getty Images

The International Criminal Court in The Hague has found Dominic Ongwen guilty of crimes against humanity and war crimes in Northern Uganda. The case against Ongwen focused on atrocity crimes committed at four refugee camps in northern Uganda between 2002 and 2005.

The Ongwen case was a massive undertaking, spanning several years, with more than 4,000 recognised victims and nearly 200 witnesses.

It is also an interesting case because of Ongwen’s personal story: he was a child soldier abducted by the Lord’s Resistance Army (LRA) who went on to become a noted commander.

Many had wondered how the ICC would address Ongwen’s background in its verdict. How would the court weigh between the 9-year-old boy who survived abduction and flourished in a brutal environment and the adult Ongwen, now 46, acting with full volition and independence? What role would his status as a child victim play in the court’s determination regarding his liability as perpetrator?

In its judgment, however, the court made a clean break between Ongwen’s victimhood in early life and his perpetration of atrocity crimes as an adult. The court acknowledged that Ongwen “experienced much suffering in his childhood and youth” but dismissed its legal relevance, stating

this case is about crimes committed by Dominic Ongwen as a fully responsible adult and as a commander of the LRA in his mid to late twenties.

In my view this is a mistake. By dismissing context – in what circumstances the harm occurred, and in what circumstances the perpetrators found themselves – as anathema to justice, international criminal law risks performing injustice. To pretend that Ongwen, who survived to adulthood by manoeuvring the brutal hierarchies and lethal absolutes of the LRA, should share the same conceptions of fairness, justice and mercy as people who did not is not only unrealistic, it is unjust.

In my view, in refusing to let Ongwen’s background alter its understanding of the charges, the ICC demonstrated the limitations of using criminal law to address a problem much larger than individual criminal acts.

The victims and the violence

The story of LRA atrocities is long and horrific. Formed in 1987, it preyed on communities in northern Uganda and surrounding areas for decades. The LRA’s leader, Joseph Kony, is still at large, though efforts by African and US special forces to capture him have driven the significantly reduced guerrilla army into hiding.

In addition to claiming more than 100,000 victims, the LRA is infamous for its practice of abducting children. One estimate is that the LRA has abducted more than 30,000.

These children, like Ongwen, were made to fight, kill, and perform sexual services for LRA soldiers. Unlike Ongwen, few survived to rise to leadership positions. As LRA commander, Ongwen did as he’d learned: abducting children; killing and ordering others to kill; assigning sexual duties to captured girls.

The ICC case against Ongwen focused on attacks at four refugee camps in northern Uganda between 2002 and 2005. These acts were represented in 61 counts of crimes against humanity and war crimes. The 1,077-page judgment contains hundreds of pages detailing the attacks in the camps – and their consequences.

The suffering of the victims was at the centre of the ICC judgment’s organisation and presentation. Reading out a summary of the court’s verdict, Judge Bertram Schmitt read aloud the names of dozens of known victims. Observers reported that relatives of the victims listening to the judgment on the radio clapped and shed tears as the names were spoken.

This focus on the personality of victims is a new direction for the ICC, which has been criticised in the past for poor treatment of victims.

Limitations

The personality of the victims factored significantly in the judgment, but the personality of the perpetrator could not find legal space. This is because international criminal law makes very few exceptions for the kinds of personal details that might overcome the liability attached to guilt for a crime. The exceptions that are recognised, called “affirmative defences,” are built on either duress or mental incapacity. Regarding Ongwen, the court rejected both.

The court concluded that Ongwen was not acting under “duress” because he sometimes acted independently of Kony. In the words of the ICC, Ongwen was not “a puppet on a string.”

Likewise, the court concluded that Ongwen was not “mentally diseased or incapacitated.”

The court explained:

The overwhelming evidence paints a picture of Dominic Ongwen as a person in full possession of his mental abilities. He is described by his subordinates as an extremely capable fighter and commander whom they loved to follow. He planned his attacks carefully and assessed the risks together with his officers. He was repeatedly lauded by other commanders, including Joseph Kony, for his ‘good work’.

In fact, Ongwen’s defence attorneys were attempting to make a more subtle and meaningful argument – that Ongwen’s adult actions were indelibly shaped by his childhood and his experiences as an LRA victim.

This is not an argument about mental deficiency but rather a recognition of social expectation, or moral norms. In this telling, the question of Ongwen’s agency is less about whether he is a “puppet” and more about his capacity to recognise the universal norms that we, as represented by the ICC, recognise. The ICC has recognised the lasting harm experienced by child soldiers before. But the Ongwen case was the first time it had to legally determine the criminal liability of a former child soldier.

As I have argued before, this limitation can be understood as part of the Faustian bargain of international criminal law.

International criminal law is driven by the axiom that since individuals commit atrocities, punishing individuals can further justice and deter others. This axiom is blind, however, to all but the most extreme contingencies (like duress or mental capacity) that impact the contexts of atrocities. So long as international criminal law insists on this blindness, it risks delivering injustice in its search “towards a more just world,” as the plaque in the ICC’s entrance proclaims.

New legal directions

Ongwen’s guilty verdict is significant for many reasons. With its investigative focus and attention to victims, it recognises the acute suffering of communities in northern Uganda. It signals new legal directions, with extended consideration of gender-based violence and sexual crime, which are too often overlooked in international criminal law.

But to celebrate the verdict against Ongwen, victim and perpetrator, is to ignore all the other ways that decades of atrocity crimes in northern Uganda and elsewhere have persisted. It begs the question, does international criminal law have the tools to meaningfully address the world’s deepest and most pervasive injustices?

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