The Dominic Ongwen Trial at the International Criminal Court by Dr. Kjell Anderson

Kjell Anderson is a jurist and social scientist specialised in the study of human rights, mass violence, and mass atrocities. He is the author of Perpetrating Genocide: A Criminological Account (Routledge 2019),and the forthcoming volumes The Dilemma of Dominic Ongwen: From Child Abductee to War Criminal (Rutgers University Press, 2020); and Approaching Perpetrators: Insights on Ethics, Methods, and Theory (University of Wisconsin Press, 2020).

The International Criminal Court (ICC) recently delivered its verdict in the Dominic Ongwen trial. The trial received quite a bit of attention in international media, as well as international criminal law circles, largely because Ongwen was a former child soldier and child abductee before becoming a perpetrator. The Lord’s Resistance Army (LRA) – a notorious Ugandan rebel group led by Joseph Kony – abducted him as a nine year old and, at least in his early days in the LRA, he was subject to intense coercion. Nonetheless, Kony promoted Ongwen to senior levels of command during his 27 years in the group, and Ongwen committed atrocities directly and through his subordinates.

In this piece, I will offer my impressions of the story the judgment tells about Dominic Ongwen, and how it differs from other accounts of his life. I am drawing from my current research project, a book on Dominic Ongwen (The Dilemma of Dominic Ongwen, Rutgers University Press, 2021), which is based on dozens of interviews with people who knew Ongwen at different points in his life, as well as a review of trial transcripts and documents, and interviews with those involved in his trial. My analysis will touch on key legal issues in the trial, but will focus more so on the narratives emerging from the Trial Chamber Judgment.

There was much discussion before the judgment that the Ongwen case would provide the ICC with the opportunity to consider the complex circumstances of some perpetrators, especially former child soldiers. Indeed, I wrote a piece days before the verdict for Justice in Conflict, to conclude that judging Dominic Ongwen would involve a tricky balancing of his perpetratorhood and his victimhood as manifested in the duress and mental illness defences advanced in the trial.

However, for the judges of the ICC, it turns out that there was not much balancing at all required. Rather, the three judges of Trial Chamber IX condemned Dominic Ongwen unequivocally on February 4, in front of a sparsely filled courtroom in The Hague. He was found guilty of 61 of the 70 charges arrayed against him – from the war crime of the forced conscription of child soldiers to the crime against humanity of forced pregnancy. The presiding judge, Bertram Schmitt, read aloud the names of the victims in a stark reminder of the consequences of Ongwen’s acts. Ongwen was entirely impassive throughout the reading of the verdict, only really paying attention when Judge Schmitt’s dry recital reached the charges relating to his former “wives” (who were held to be victims of forced marriage as an “other inhumane act”[1], among other acts of sexual violence).

It was a sharp contrast from the Ongwen we saw some four years earlier at the start of his trial; when asked how he pled then, he proclaimed, “I am not the LRA.”, and said Joseph Kony was the one who should be held responsible.[2] By the end of us his trial, Ongwen was impassive and 50 pounds heavier – a likely side effect of medications prescribed to treat his mental illnesses, including PTSD and Dissociative Identity Disorder.[3]

The written verdict assesses Ongwen’s actions in northern Uganda during the charged period (from 1 July 2002 to 31 December 2005). The evidence against Ongwen was undoubtedly strong and well-articulated by the Prosecution. 109 witnesses testified for the Prosecution, including women forced to “marry” Ongwen; the evidence also encompassed radio intercept recordings and logbooks, in which Ongwen was sometimes ‘caught on tape’ reporting the outcome of attacks to Joseph Kony.[4]

Yet, through applying a narrow legal lens to these three and a half years of Ongwen’s life, the verdict was also strangely stripped of context. It was as though Ongwen had landed in the LRA on July 1 2002, rather than being kidnapped by the group some fifteen years earlier. These intervening years were scarcely present, and much of the material relating to Ongwen’s highly abnormal socialization within the LRA, was deemed not to be directly relevant or beyond the temporal scope of the charges.

The Chamber almost entirely dismissed the Defence’s arguments. Ongwen was held not have been under duress while committing his crimes. The Chamber concluded that Onwen was “not in a situation of complete subordination vis-à-vis Joseph Kony” and that “Dominic Ongwen did not face any prospective punishment by death or serious bodily harm when he disobeyed Joseph Kony.”[5] This reading of Ongwen’s situation is based on the judges’ conclusion that although Ongwen was a victim at one point, he should have left the LRA (as many other abductees did), and that escape “was a realistic option.”[6]This echoes the reasoning of the Pre-Trial Chamber II in the Decision on the Confirmation of Charges, where they stipulate that “escapes were not rare” and that Ongwen “could have chosen not to rise in hierarchy…”.[7] Moreover, while the Court spends much time explaining the brutality of the LRA’s systems for the indoctrination and socialization of new “recruits,” it contends that Ongwen was under a different set of rules by 2002, as he was a senior officer and his situation was “fundamentally different” than a child abductee.[8]

The Defence, Prosecution, and Victims alike concurred throughout the trial that the LRA was a group that exhibited extreme brutality against its members. My interviews with former LRA echo the trial evidence that recruits were typically abducted between the ages of 10-16, and that they were tightly bound, forced to carry heavy loads, subject to severe corporal punishments for rule violations, and forced to witness (and participate in) the torture or killing of rule violators and LRA enemies. Once recruits gained the trust of the group – if they survived that long – they were trained as LRA fighters. One woman who alleges that she was abducted at age 11 by one of the other 4 individuals charged by the ICC – Raska Lukwiya – recalls her abduction and the days that followed: “We were returning from school and many were captured and tied and ordered to move. Our legs were swollen, many of us were beaten, if you fell, they could walk right over you.”[9] Ongwen was carried when he was first abducted, as his legs were also swollen.[10] The LRA often summarily killed those children who could not keep up, so Ongwen was lucky.

A man who was purportedly directly responsible for Ongwen’s training in the LRA told me “he [Ongwen] transformed from this childish behavior to a mature man. He could speak truth and complete all his tasks. He later also managed to become a commander who was respected because he could do his tasks well.”[11] Another woman, who (credibly) claims that Ongwen was within her household in his early days in the LRA, was uncomfortable with his transformation, recalling that it was “strange but I couldn’t say anything. To see Odomi [Ongwen] training, and learning, and going through so many bad things. He was just a very young child and his mind was changed completely.”[12] Another former LRA explained to me that Kony “changed you bit by bit. Changing your mind so that you stay in the bush and don’t come back home.”[13] So how does the Chamber account for this transformation of recruits within the LRA in its verdict? In short, it does not.

Rather the judgment seems to essentialize Dominic Ongwen’s status as an incorrigible perpetrator by ignoring or reframing countervailing narratives. For example, the Chamber finds that the unique spiritual beliefs of the LRA were not relevant for determining duress, and that “LRA members with some experience in the organisation did not generally believe that Joseph Kony possessed spiritual powers.”[14] These spiritual powers are relevant for duress, as LRA professed that Kony could read their mind, thus they feared disobeying his edicts. My interviews are replete with professions of belief in Kony’s spiritual powers, including among senior commanders and those long departed from the group. For example, in speaking to an ex-LRA in 2009, a few years after the charged period, an ex-LRA told me “I can say that Kony has something on him… [I]f he says, in this period there should be no sexual intercourse between a woman and a man, if you do, the stray bullet will hit only your private parts. If you were pregnant, he could tell you the sex of the baby and even give the name before you give birth. He could even prophesy that this boy will die or be seriously injured in the war.”[15] The significance of these powers is that Kony’s telepathy strengthened his control, moreover, many LRA maintained a belief that violations of the rules (i.e. sexual intercourse in this case) would lead to direct cosmic retribution.

The Chamber’s complete rejection of the importance of spiritual beliefs in the LRA contradicts the research of many social scientists.[16] Indeed, social scientific research methods are deemed by the Chamber to be insufficiently critical. For example, the Chamber determines that anthropologist (and Defence expert) “… [Kristof] Titeca did not question the statements made to him about the spiritual influence on LRA fighters and did not consider it to be his role to make a judgment about the truthfulness or falsity of the statements. As such, his evidence is only of very limited value in the present proceedings…”[17] Interrogating the falsity of Ugandan (LRA) religious beliefs from the perspective of Western “rationality’ does seem to entirely miss the point – such beliefs matter not because they are “true” by some universal standard of truth, but because they are held to be true by their adherents.

Indeed, this assessment of the reliability of evidence speaks to broader shortcomings of the trial as a process of fact-finding. Reliability is determined based on consistency across testimonies, yet Dominic Ongwen’s life is full of inconsistency, like many perpetrators, as he navigates the unsettling context of the LRA. The testimony of other witnesses offering divergent narratives, such as Florence Ayot – one of Ongwen’s former “wives” who gives a positive impression of Ongwen – is rejected, the Chamber deciding that “Ayot’s testimony is of very limited use to establish the life of Dominic Ongwen’s so-called ‘wives’ in the bush”.[18] The truth is much more complicated: while many of Dominic’s “wives’ experienced their relationships with Ongwen as fundamentally coercive and abusive, there were other “wives” (likely a minority) who experienced things differently. This fact neither diminishes the fundamental brutality of the system of forced marriage within the LRA, nor the victimization of Ongwen’s “wives.”

If we only focus on Dominic Ongwen as a “victim-perpetrator” this obscures the atrocities that Ongwen committed, and the profound effect of these atrocities on the victims. Paul Bradfield, a former Prosecution trial attorney on the case, cites the testimony of several of Ongwen’s wives “without hesitation…the most harrowing I have ever heard.”[19] Judge Schmitt devoted a great deal of time in his reading of the verdict to naming victims, a practice surprisingly uncommon in international criminal justice.

In fact, rather than rejecting the binaries of international criminal justice, the Defence actually rejected the victim-perpetrator label for Ongwen, writing in their closing brief that “Mr Ongwen is a victim and not a victim and perpetrator at the same time.”[20] Taking things a step farther, lead Defence Counsel Krispus Ayena Odongo repeatedly referred to Ongwen as “that boy” in his closing arguments.[21] This version of Ongwen as an unceasing victim is infantilizing and unsustainable.

The judgment produced some important legal findings, albeit not much on the defences of duress and mental illness (beyond affirming that the burden is not on the Defence to prove these defences, but on the Prosecution to disprove them in proving guilt beyond a reasonable doubt).[22] There are tactical questions about the Defence strategy, such as whether they should have aggressively pursued a potential plea agreement while there were few charges against Ongwen, and whether they failed to corroborate Ongwen’s alleged mental illnesses through the witnesses they called. There were important findings on gender-based crimes: forced marriage was held to be a distinct crime (under the umbrella of “other inhumane acts”, and Ongwen was the first person to be convicted of the war crime and crime against humanity of forced pregnancy.

In concluding, while this verdict will undoubtedly provide some comfort to Ongwen’s victims, it also demonstrates the limits of international criminal justice. Criminal trials are not ultimately about rendering comprehensive moral or historical judgments (despite occasional pretensions from boosters of international justice). Indeed, attempting such an exercise would likely produce inconsistent and unjust results.

Yet, while the Ongwen judgment does satisfy the framework of the Rome Staute, the verdict leaves us an incomplete story of how Dominic Ongwen went from child victim to adult perpetrator. Rather than offering a nuanced exploration of Dominic Ongwen’s agency and choices to commit crimes, the judgment ignored or severed the “messy” parts of his story to produce an accountability narrative grounded in a clarity over Ongwen’s motivations that does not hold true. There may still be room for nuance through the sentencing process (particularly in terms of mitigation under Rule 145), but the Chamber’s strong emphasis on accountability, alongside potential aggravating factors, makes it seem unlikely that Ongwen will receive a substantially reduced sentence.

Criminal trials are often presented as forensic ‘excavations’ of hidden truths. Rules of procedure and evidence carefully curate this process of truth-telling. Yet, as Ongwen’s trial illustrates, international criminal justice produces certain types of truth and certain stories, bounded by the law. The relevant question is not whether the judges’ made a correct decision in Ongwen’s case, but rather the wisdom of addressing such cases through criminal trials.

Endnotes [1] For more on other inhumane acts, see, for example, the recent work done by my colleague Gillian MacNeil, Legality Matters: Crimes Against Humanity and the Problems and Promise of the Prohibition on Other Inhumane Acts (New York: Springer, 2021). <https://www.springer.com/gp/book/9789462654426>. [2] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, transcript (6 December 2016), https://www.icc-cpi.int/Transcripts/CR2016_25802.PDFp. 17. [3] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 2576. [4] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 177. [5] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 2668. See also ¶ 2597 where the judges argue that Ongwen “did not automatically execute Joseph Kony’s orders.” [6] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 2635 [7] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Decision on the Confirmation of Charges (23 March 2016), https://www.icc-cpi.int/CourtRecords/CR2016_02331.PDF¶ 154. [8] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 2591. [9] Author’s Interview U47, ex-LRA woman, Gulu, Uganda, July 17, 2018. [10] Author’s Interview U32, family member, Coorom, Uganda, July 11, 2018. [11] Author’s Interview U25, ex-LRA man (commander), Gulu, Uganda, July 9, 2018. [12] Author’s interview U65, ex-LRA woman, Gulu, Uganda, July 25, 2018. [13] Author’s interview, ex-LRA woman, Gulu, Uganda, July 25, 2018. [14] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 2658. [15] Author’s interview U6, ex-LRA woman, Gulu, Uganda, July 21, 2009. [16] See, for example: Letha Victor & Holly Porter, “Dirty things: spiritual pollution and life after the Lord’s Resistance Army,” Journal of Eastern African Studies 11, no. 4 (2017), 590-608. [17] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 597. [18] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 402. It must be noted that Ayot was also accused of engaging in witness tampering through her communications with the other “wives.” [19] https://justiceinconflict.org/2021/02/10/the-moral-and-legal-correctness-of-dominic-ongwens-conviction/ [20]Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of ‘Corrected Version of “Defence Closing Brief” (24 February 2020), https://www.icc-cpi.int/CourtRecords/CR2020_00998.PDF¶ 20. [21] Odongo said: “I want to constantly call him a boy because from my earlier submission he has had a such disjointed life that the wheels of his life stopped on the day he was abducted.” Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, transcript (12 March 2020), https://www.icc-cpi.int/Transcripts/CR2020_01343.PDF, p. 77. [22] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Chamber Judgment (4 February 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF¶ 231.