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This blog symposium considers several socio-legal aspects arising from the International Criminal Court’s (ICC) judgment on 4 February 2021 in the case of the Prosecutor v Dominic Ongwen. At around nine years old, Mr Ongwen was abducted and used as a child soldier in the Lord’s Resistance Army (LRA), an armed group that has operated in northern Uganda since the 1980’s under the leadership of Joseph Kony – who is also wanted by the ICC. In the years following his abduction, Ongwen rose through the ranks to become a commander of the LRA’s Sinia Brigade. The ICC Prosecutor charged Mr Ongwen with 70 counts of war crimes and crimes against humanity committed in camps of displaced persons between 2002 and 2005. This was the Court’s first case from Uganda, which was referred to the ICC in 2004 with arrest warrants issued in 2005. Following a four-year trial and deliberation during the COVID pandemic, the Court’s Trial Chamber IX found Ongwen guilty of 61 counts – the most of any accused before the ICC to date.
The Ongwen case is noteworthy for several reasons, one being the conviction for all 19 counts of sexual and gender-based crimes, including rape, sexual slavery, forced pregnancy, and forced marriage. This is the first time the ICC has found an accused guilty of forced marriage, which is not enumerated in the Rome Statute (RS) but was previously prosecuted at the Special Court for Sierra Leone. The ICC Prosecutor’s track record with prosecuting sexual and gender-based crimes – especially under Ocampo’s leadership – was wanting. As such, this verdict in Ongwen represents a milestone of progressive jurisprudence on gender justice and accountability. The judgment is important also given its attention to gendered (and not just sexual) aspects of the crimes. For example, scholars have commented on the meaningful differentiation made by the Court between sexual slavery and forced marriage, noting the latter as ‘other inhumane acts’ (Art 7(1)(k) RS).
Much speculation surrounding the case was how the judges would address Mr Ongwen’s own victimisation as a child solider and defence of duress and mental capacity. Milena Sterio’s blog in this series explores Ongwen’s identity as a victim and/or perpetrator. This issue is now expected to take centre-stage at the sentencing hearings this week, given that the Court rejected the defence’s arguments. The defence had submitted – and raised again regarding sentencing – that Ongwen was a prisoner of the LRA who was compelled by Kony and his spirits to commit the crimes. In this blog series, Adina-Loredana Nistor analyses the role of such cultural evidence and the construction of (legal) certainty in the courtroom. While the Trial Chamber acknowledged Ongwen’s abduction and significant suffering in his childhood and youth, it concluded that he bears full legal responsibility for the crimes committed as an adult (18 years-old). The blog post by Brianne McGonigle Leyh and Wayne Miller explores these different factors in sentencing. The blog post by Kjell Anderson will focus on aspects of the sentencing hearing later this week.
Another issue due to be resolved by the Court is that of reparations for the over 4,000 victims participating in the trial and following the case. The crimes that Ongwen has been found guilty of are now around 18 years old, meaning that victims have long been living with the lasting effects of war and trauma. The ICC’s Trust Fund for Victims has been carrying out ‘assistance’ measures for members of affected communities in Uganda already since 2008. Given that Ongwen was found to be indigent (for the purposes of legal aid), it is likely that it will again fall to the Trust Fund to support any future reparations order. The size of such an order may be significant, given that the Court last month assessed Mr Ntaganda’s liability for reparations at USD30mil for 18 counts of war crimes and crimes against humanity relating to half the number of victims than in the Ongwen case.
Given the importance of this case, an expert roundtable (recording here) was organised in March 2021 to highlight relevant issues. This online event was hosted by the Public International Law and Policy Group (PILPG) and the Utrecht Centre for Global Challenges at Utrecht University (UGlobe) and attracted hundreds of participants. Milena Sterio, Brianne McGonigle Leyh and I organised the roundtable, which featured: Adina-Loredana Nistor, PhD Candidate in international criminal law at the University of Groningen; Dov Jacobs, Assistant Professor in international law at Leiden University and Counsel before the ICC; Grace Acan, a women’s activist, writer and a co-founder of a local Women’s Survivors Network in Northern Uganda; Kjell Anderson, Assistant Professor of law at the University of Manitoba; and Sarah Kasande, Head of Office for the International Centre for Transitional Justice and Advocate of Courts of Judicature in Uganda. This blog symposium is also an outcome of that collaboration. Thank you to the Armed Groups and International Law Blog for hosting us!