Ongwen blog symposium: Culture as evidence and the construction of (un)certainty in the Dominic Ongwen trial

About the author(s):

Adina-Loredana Nistor is a PhD Candidate in international criminal law at the University of Groningen. Her research explores how cultural differences impact international criminal trials throughout their proceedings, with a particular focus on the International Criminal Court (the ICC). Adina worked as a Visiting Professional at the ICC, Investigative Analysis Section (IAS) during April-September 2019. She holds a master’s degree in International Crimes and Criminology from VU Amsterdam and an MA in American Culture Studies from Warsaw University. She previously worked as Researcher at Erasmus University Rotterdam and as Senior Research Associate with the Public International Law and Policy Group.

But the bottom line is, look, whom do you believe? (…) So this is really – that’s really a question at the end of the day. (Defence closing statements)

Early on in the Ongwen trial the presiding judge Schmitt acknowledged that “things do not occur without any setting, any cultural, political, social setting and it’s also important for the court to know this” (p.8). And indeed, during the trial a substantial amount of cultural evidence (pertaining to traditions, belief systems, behaviors etc.) was presented by the parties. Such evidentiary material was intertwined with submissions concerning the background of the conflict and Uganda’s history.  In particular, courtroom discussions revolved around Acholi traditions and whether the Lord’s Resistance Army (the LRA) constructed its own distinct subculture (p. 23) and cosmology (p. 216).

Given the specific purpose of a criminal trial – to determine the guilt or innocence of the accused – cultural evidence has been introduced into the courtroom with various purposes and outcomes. On the one hand, there is its (potential) link to specific legal requirements of charged crimes or modes of liability. On the other hand, it might play a role in sentencing and in reparations. Culture can intersect with the law in a myriad of ways. In relation to the trial of Dominic Ongwen, cultural concepts have been predominantly linked to certain charges. For example, the concept of childhood was discussed in relationship to the charge of enlisting and conscripting child soldiers, the concept of marriage in relationship to the charge of forced marriage, and spiritualism in relation to the grounds for excluding criminal responsibility to name just a few. For the purposes of this post, I will focus for now on the concepts of childhood and age and their intersection with spirituality.

Childhood and age

As Tim Kelsall wrote in Culture under Cross-Examination, although “the concept of childhood seems to exist in all human societies, scholars largely agree that the actual meaning of the word differs across cultures.” (p. 151) Given that one of the crimes that Ongwen has been found guilty of is the conscription of children under the age of 15 and their use in hostilities, the Prosecution had to prove that the child soldiers were minors under the age of 15. Given the scarcity of documented proof of age, such as birth certificates, the Prosecution had to come up with additional evidence. And it was primarily witness testimonies which were relied upon. What an in-depth analysis of trial transcripts revealed, however, is that establishing the age of a person at the intersection between what may be considered as universal concepts, such as “childhood” and their applicability in a specific context can be challenging. For example, when one witness was asked what did he mean when he said that children (former abductees) were returning from the bush, he answered: “some of them are children, some of them are very young. You sometimes meet a very young person, a returnee as a very young person and that’s why I use the term “children”. Somebody like Owino is an adult, he’s not a child anymore. Children is a cultural term used in Acholi, because for all the – if I’m older than somebody, whoever is younger than me is referred to as a child.” (p.35) This indicates that beyond finding the equivalent from one language to the other, it is crucial to place the word (child) in the context of its own universe, the local context, otherwise misunderstandings can easily arise.

The Defence on the other hand tried to show that witness assessments of age were wrong, mainly because of inconsistencies and contradictions concerning documentation (p.140) and because the term kadogo or kadoge/kadogi (plural), which was used by the LRA to identify a certain subgroup of people in their army, was defined by various criteria when it came to the age range, which was in fact quite elastic. While a significant number of witnesses assessed that the term referred to child soldiers around the age of 8-12, others have estimated the age at 15 or even a bit beyond that, as some witnesses referred to themselves as being called kadogi at a point in life when they had passed the age of 15. The judges contented that numerous witnesses referred to kadoge as to “children between 13 and 15,” and that Dominic Ongwen had been heard using the word kadogi to refer to children (p. 835) and was aware of the age of the recruits (p.855). Therefore a concept whose defining criteria proved to be very pliable during the trial became a rather fixed category in the judgement. A similar exercise concerning the same concept, but in the context of Congo, found its way into the judgement of Thomas Lubanga.

Age, time and spirituality

The Defence submitted that Ongwen had been himself dislocated from his own culture and its moral fabric at a very early age. In the Closing statement they claimed that for instance regarding the sexual and gender-based crimes the defendant “did not have any idea about sexuality, especially within the cultural aspect of Acholi” (p.47) at the time of his abduction. Expert witnesses similarly discussed the impact of the LRA indoctrination on young individuals and concluded that in most cases, the younger the person, the more malleable they can be to be shaped according to spiritual beliefs, especially if the belief system is rooted in traditions that are already familiar to them.

In the judgement, the Chamber underlined that they found “no evidence indicating that the belief in Joseph Kony’s spiritual powers played a role for Dominic Ongwen, and in fact the evidence of Dominic Ongwen defying Joseph Kony, discussed above, speaks clearly against any such influence.” (p. 933) In relation to the sexual and gender-based crimes, they quoted the testimony of one witness who said “This is – this is something extremely bad and culturally – in Acholi culture raping young girls is extremely bad.” (p. 751)

In the case of Sierra Leone trials for example, where the crime of recruiting and using child soldiers during hostilities was also charged, Tim Kelsall criticized the fact that the trial served as a “predominantly technical exercise in establishing whether or not the defendants had transgressed an international law, instead of a test of whether the defendants knew they had transgressed an international law, let alone a dialogical exercise inquiring first into whether or not a local norm had been infringed.” (p.158) However, in the case of Dominic Ongwen submissions about local culture, practices and diverging views on their meaning were presented and while the judges did not elaborate on the cultural dimension in particular, the selection of statements that made it into the judgement, such as the one quoted above, may be indicative of the fact that such cultural issues were factored into the decision of the chambers.

Similarly, in connection with age, the passage of time and the belief in spirits, the judges weighed in the evidence submitted by the parties and inferred that “there is consistent evidence that for many persons who stayed in the LRA longer their belief followed a pattern: it was stronger in the young, new and impressionable abductees and then subsided and disappeared in those who stayed in the LRA longer” (p. 930) and that “all of this evidence leads the Chamber to the conclusion that LRA members with some experience in the organisation did not generally believe that Joseph Kony possessed spiritual powers.” (p. 933) While these statements refer to the testimonies of specific witnesses in this trial, it remains unclear why broad generalizations that seem to have an overarching effect outside of the courtroom find their way into the judgment.

At the same time, the fact that certain evidence on the issue of spiritualism was deemed of “limited value to the present proceedings” (see pp. 187, 216, 219) can also be seen through the lens of operating in very different domains: the questions asked by the judges differ substantially in their scope and purpose from those of anthropologists for example. The type of questions that are asked require very specific answers which serve the narrow purpose of a criminal trial and anything that cannot be evaluated within the criteria of the Rome Statute is likely to be dismissed.

The judgment and the legal taxonomies

While during the trial itself certain cultural concepts appeared to be fluid, contested or open to interpretation, the judgement has in a way transformed them into legal certainty and legal truth. Concepts of age and childhood have been linked to strict requirements concerning the act of conscription and the use of soldiers under the age of 15 in hostilities. Ultimately, Dominic Ongwen was found guilty of 61 out of the 70 charges he stood accused of. In the self-contained legal universe of the judgement, certain propositions, no matter how ambiguous or contested, became facts. Evidence was presented in order to support or dismantle diverging propositions. In this negotiation between the known and the believed, cultural evidence – that did “not directly underlie” the Chamber’s analysis as to “whether the facts alleged in the charges” have been established – has been dismissed (p.219).

However, the judgement represents only a part of the conclusion of this trial. The sentencing and reparations offer new opportunities for these closed categories to gain new meaning and hierarchy in the system. It remains to be seen whether and how the judges believe that the defendants formative years in the “family” of the LRA constitute a potential mitigation, and whether childhood, age and spirits and the constellation of other concepts in which they are imbedded make their way into their sentence determinations.

In Dominic Ongwen’s ICC judgement the verb to believe can be found in over 70 instances, yet the Chambers have used it sparingly in relation to their own findings, reserving it for assessing the credibility of witness testimonies. The dialectical choices made in such a case are not surprising. From a psycholinguistic approach, the dialogical construction of the legal truth leaves little room for beliefs. In this cognitive process of making order of the reality the verb to believe might end up in contrast with the verb to know in the same way uncertainty can be seen as the opposite of certainty (Mininni et al, p.115).

In the context of a criminal trial, this is more than a dichotomy, it is the tension that spans between doubt and beyond reasonable doubt in relation to the criminal responsibility of the accused. And what can be explored, moving beyond from what has been established in this trial, are the numerous pieces of the puzzle which were considered to not belong to this legal domain, and which can still paint different pictures and reconfigure new (un)certainties.

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