International rule of law: historic firsts in ICC’s conviction of Dominic Ongwen

Jennifer Venis, IBA Multimedia JournalistTuesday 23 March 2021

‘The case against Dominic Ongwen is one of the most pioneering ICC cases to date, for recognising the dignity of victims of sexual and gender-based crimes and the breadth of their suffering, and also for underscoring the inalienable fair trial and human rights of defendants’, says Danya Chaikel, Secretary of the IBA War Crimes Committee and an international criminal lawyer in The Hague.

Chaikel says that Judge Bertram Schmitt’s summary of the verdict in court was extremely moving, and accessible to affected communities. ‘He thoughtfully and meticulously described the horrifying experiences of victims and survivors and read out their names, saying, “These victims have a right not to be forgotten. They have the right to be mentioned explicitly.” I don’t recall this level of sensitivity in previous deliveries of ICC verdicts’, she says.

Danielle Hites is a legal advisor at the Global Justice Center and previously worked at the Coalition for the ICC. She was pleased the Court foregrounded victims and did not just charge sexualised and gendered crimes under the catch-all category of sexual violence.

‘There were also charges of enslavement in general, torture and outrage upon personal dignity. It was an important distinction’, she says. ‘They’re recognising that sexual and gender-based violence can’t just be siloed into one category, there are gendered elements to all of these crimes and they can be committed in gendered ways and often are’.

But recognising the gendered perpetration of crimes in court is very difficult – partially, Hites says, because it is a more specific kind of harm, but also because the legal frameworks for convictions were created to make it more difficult.

Reaching this conviction for forced pregnancy was particularly challenging, as the Court noted in its discussion, because of the history of its incorporation into the Rome Statute. Hites says, ‘there were so many countries that either didn’t want forced pregnancy included in the Statute because they were concerned that their own national laws on reproductive autonomy would be implicated, or they felt it was already covered by unlawful detention or rape.’

Because of the resulting narrow definition and ‘ridiculous’ high standards for conviction of the crime, Hites says, there are ‘so many barriers to access to justice’.

And despite the precedent set by this ruling, those barriers will continue. ‘Fingers crossed we can get another really well charged, really well prosecuted, really well-judged case addressing these kinds of violations. But it’s a very heavy burden’, she adds.

The defence was also a first: Ongwen himself had been victimised by the LRA, forced to become a child soldier, and his lawyers argued defences of duress and mental illness. Chaikel notes that while the judges ultimately rejected this argument, ‘they might still consider his abduction at a young age and his victimhood as a mitigating factor at sentencing’.

For Chaikel, ‘because of these confronting aspects of the case and the ways they were adjudicated during the trial phase, we are forced to think about the humanity of both the victims and the defendants on a much deeper level – something that I think is desperately needed in international criminal trials.’

Some local community leaders believed that Ongwen should face Mato Oput, an Acholi traditional justice mechanism focusing on confession of wrongdoing, seeking forgiveness, reconciliation and reparation.

According to Sarah Kasande, a human rights lawyer and Head of Office of the International Center for Transitional Justice (ICTJ) in Uganda, this is partly because of ‘the failure of the state to protect him and then to acknowledge that it’s the lack of protection that contributed to his victimisation and subsequent involvement in the commission of crimes.’

‘When the ICC intervened there was a false sense that the ICC displaced local forms of justice and was an obstacle to peace’, says Kasande. ‘The ICC operates in a different space, it has a different mandate and resources. It could not displace local accountability processes, but complement them. Due to the different mandate and resources, the ICC process was able to take off and proceed while the local or national justice processes couldn’t because of lack of resources or political will’.

She sees no reason why the different systems cannot exist in parallel. Criminal accountability is fundamental but should not be the only approach, she says. ‘It’s just a drop in the ocean for the tens of thousands of victims of the 20-year conflict in northern Uganda who require holistic justice’.

Kasande calls for a process that prioritises an element of reparations for the victims, which restores, repairs and rebuilds, and incorporates elements of prevention, including ensuring the institutions or structures that enabled these violations are reformed.

Ongwen’s lawyer has reportedly confirmed that all charges will be appealed against. For Kasande, if Ongwen’s conviction is upheld upon appeal, the reparations proceedings offer the ICC an opportunity to set benchmarks for other justice processes by listening to victims and delivering reparations that properly address and resonate with their needs and expectations.

She says, ‘We at the ICTJ have been working closely with survivors for years and, sadly, when you speak to a survivor right now, their main priority is to address the enduring consequences of sexual violence which include dealing with the health complications that arose from that sexual violence, to support and care for the children who were born from it. Children who are not accepted in the communities due to stigma.’

‘Sexual violence has dire consequences that have lasting impact on generations. When providing reparations, it would be key for the Court to address that. To me, that’s how the ICC will have meaningful impact’, Kasande says.

But for the communities whose victimisation is not being addressed by the Court, including where the crimes were allegedly committed by others in the LRA, Kasande says the verdict might only have symbolic significance.

Some victims, she says, should benefit from administrative reparations through the Ugandan National Transitional Justice Policy, and the ICC’s reparations process could provide useful lessons on how that could be implemented.

But what’s truly missing, says Kasande, is accountability for alleged violations by state actors. The ICC has previously analysed harms allegedly committed by the Uganda People’s Defence Force (UPDF) – the Ugandan armed forces – which the UPDF leadership has always denied.

However, not all of these harms fell within the ICC’s temporal jurisdiction, and where they did, the crimes committed by the LRA were ‘much more numerous and of much higher gravity than alleged crimes committed by the UPDF’ and the ICC therefore began by investigating the LRA, according to Luis Moreno Ocampo, then-Chief Prosecutor of the ICC.

Kasande believes that unless the ICC is retaining evidence of human rights abuses committed by state actors to pursue accountability in future, revealing the investigation’s findings could create impetus for accountability at the domestic level.

Header pic: Shutterstock.com / Mike Chappazo