1. Introduction
In 2018, the ICC-OTP closed its arguments in one of its most notorious casesFootnote 1 – the case against Dominic Ongwen, former brigade commander of the LRA, which had been operating for decades in Northern Uganda. While originally Ongwen had not attracted as much attention as other LRA suspects, such as the organization’s leader Joseph Kony, when he became the first and only apprehended LRA commander, the Prosecutor sought to demonstrate to the Court’s audience the importance of the trial against Ongwen. The ICC-OTP charged Ongwen as a principal perpetrator with a record number of 70 counts of crimes.Footnote 2 The Prosecutor’s case revealed a story of seemingly inhuman brutality, culminating with the statement that Ongwen had committed atrocities with ‘enthusiasm’.Footnote 3 Even though Ongwen had himself been victimized by the LRA as a child, the Prosecutor’s case presented him as one of the most cruel perpetrators tried at the International Criminal Court (ICC or the Court). Ongwen transformed the Ugandan investigation, which had not produced results for over a decade, into a symbol of the ICC’s ‘crucial’ importance as a court of last resort.Footnote 4 This article proceeds to analyse whether the case also managed to communicate in a meaningful way the complexities of mass atrocities in Northern Uganda and Ongwen’s personal experiences.
As confidence in the retributivist or deterrent potential of international criminal law (ICL) has gradually diminished, international criminal justice is said to have taken an ‘expressivist turn’, with many scholars examining the potential and the limits of international trials to serve as a tool for condemning mass atrocities as socially unacceptable.Footnote 5 On the one hand, it has been suggested that by symbolizing the wrongfulness of such crimes, international trials could instil norms of non-violent behaviour.Footnote 6 On the other hand, the rigid categories of ‘victims’ and ‘perpetrators’, inherent to the Western legal tradition on which ICL is based, have been argued to preclude a nuanced discussion of the interplay between structure and agency in international crimesFootnote 7 and hamper the receptiveness of ICL’s ‘messages’ within local communities.Footnote 8
This article makes an important empirical contribution to the lively theoretical debate on expressivism and its limits, by examining in detail the ‘messages’ that were communicated by the ICC-OTP in the Ongwen case in view of the ICC’s pragmatic considerations as a judicial institution embedded within international politics. While the analysis also makes references to the arguments presented by the defence and the judges, more specifically with reference to Ongwen’s victim-perpetrator status, the article mainly focuses on the Prosecutor’s allegations. The persuasiveness of the Prosecutor’s arguments is not preordained and the defence could significantly challenge it – indeed, the ability to present both sides to the story has been deemed an important virtue of the liberal trial. Footnote 9 Nevertheless, the ICC-OTP is an actor of crucial significance for understanding ICL’s expressivist potential and its limits. The communicative value of the Prosecutor’s arguments far exceeds the field of legal experts because the Prosecutor is the actor who most often addresses the general public through the media, essentially acting as ‘the face of the court’. Footnote 10 Furthermore, the Prosecutor has been described as the ‘principal strategist’ of international criminal justice – selecting the suspects, the charges, and the scope of the cases. Footnote 11 The defence builds its case in response to the prosecution’s allegations and its arguments are directly affected by the scope and volume of the prosecution’s arguments. Footnote 12 Consequently, a detailed analysis of the Prosecutor’s arguments serves as an important starting point for empirical research on expressivism in ICL and future research should further examine the role of the defence’s arguments.
Few important studies have observed the international Prosecutor’s communicative power to impact public perceptions of the defendant and the nature of violence, but the analysis has generally been limited to the Prosecutor’s public declarations and the trial’s opening statement. Footnote 13 This article contributes to the literature by examining the communicative potential of those aspects of the prosecutorial discretion that have largely escaped rigorous analysis. The Prosecutor selects the charges and modes of liability against the defendant Footnote 14 and decides whether and how to present certain evidence and what questions to pose to witnesses. Footnote 15 All of these prosecutorial decisions impact the image of the defendant and communicate a message regarding the complexities of violence to the Court’s broader audience. Consequently, along with the Prosecutor’s opening statement, this article examines the arrest warrant, the Document Containing the Charges (DCC) against the accused, other ICC-OTP submissions, and the Prosecutor’s witness questioning at trial.
Ongwen is a particularly intriguing case study to examine the expressivist aspirations of ICL in practice because of the accused’s victim-perpetrator identity. On the one hand, the victim-perpetrator presents an opportunity for engaging with the complexities of mass atrocities and expressing not just condemnation, but an attempt at understanding the broader causes of violence at the international courtroom. Footnote 16 On the other hand, pragmatic considerations, such as the challenges of apprehending suspects at the ICC, could render the case instrumental to demonstrating the Court’s ability to ‘put an end to impunity’ for mass atrocities. Footnote 17 The latter scenario is more likely to involve an excessive emphasis on the culpability of the defendant available for trial than a nuanced reading of the complexities of violence. The peculiar nature of the Ongwen case thus makes it an appropriate case study for examining the message that the ICC ends up projecting more generally in its cases: if even victim-perpetrators such as Ongwen are excessively dehumanized for the purpose of demonstrating the importance of the Court’s work, it appears unlikely that the ICC-OTP would demonstrate sensitivity to the defendant’s background circumstances in cases against ‘ordinary’ perpetrators who have not been formerly victimized.
Based on a comprehensive analysis of the charges, the modes of liability and the overall Prosecutor’s case narrative in Ongwen, this article suggests that the limited possibilities for apprehending suspects and the dependency on government co-operation for investigations have resulted in the excessive stigmatization of Ongwen as the ‘cause’ of crimes committed in Northern Uganda. This has occurred without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, or the role of other actors in the conflict, such as the Government of Uganda (GoU) and the Uganda People’s Defense Forces (UPDF). Following the deaths of several LRA suspects and the diminishing prospects of apprehending Joseph Kony, the case against Dominic Ongwen has transformed into a symbolic prosecution against the entire LRA, which has resulted in Ongwen’s disproportionate stigmatization. Ongwen was neither the most senior, nor the most famous LRA member. Yet, by bringing 70 charges against him and alleging that Ongwen had perpetrated rather than assisted those crimes, the ICC-OTP presented Ongwen as one of the most notorious and ferocious perpetrators of crimes in Northern Uganda. Meanwhile, the significance of Ongwen’s own childhood victimization as a child soldier was obscured. In effect, while the ICC Prosecutor could finally demonstrate the importance of its symbolic Ugandan investigation, the potential for expressing the complexities of violence and suffering has been precluded in Ongwen.
The article is structured as follows: Section 2 engages with the literature on ICL’s expressivist aspirations; Section 3 discusses the ICC-OTP’s institutional need to demonstrate the importance of its work; Section 4 examines the excessive dehumanization and its implications in Ongwen in terms of the number of charges against the accused, the characterization of his criminal responsibility, and the negation of Ongwen’s past victimization, highlighting the seeming influence of the ICC’s socio-political environment on the Prosecutor’s case; and Section 5 concludes. This article does not claim that Ongwen does not bear criminal responsibility – this is yet for the Trial Chamber to determine. Nor does it argue that the prosecution has violated the ICC’s legal requirements by emphasizing Ongwen’s agency, rather than the structural causes of violence. In fact, as will be discussed, the excessive stigmatization of the defendant is enabled by the rigid legal categories. Instead, by illuminating the significant challenges to obtaining expressivism in a meaningful sense in ICL, this article calls for greater sensitivity to the messages that are being communicated through international trials.
2. ICL’s expressivist aspirations: Condemning international crimes
Attempts to justify international trials on the same grounds as domestic criminal law have seemingly failed due to the peculiar nature of international crimes.Footnote 18 Retribution – punishing the guilty according to their just dessert – is among the most straightforward purposes of criminal law,Footnote 19 but balancing the wrongs of mass atrocities with punishment is said to be ‘unthinkable’Footnote 20 as ‘no punishment can fit the most horrendous international crimes’.Footnote 21 Further attempts have been made to justify international trials as contributors to the deterrence of mass atrocities.Footnote 22 However, the low prospects of being prosecuted by an international tribunal are considered unlikely to enter the rational calculations of individual actors.Footnote 23
Such obstacles have led an increasing number of scholars to consider a justification which appears especially fitting in the ICL context: the ‘expressivist’Footnote 24 or ‘symbolic’ power of punishment.Footnote 25 From this perspective, international prosecutions strengthen the ‘faith in the rule of law among the general public’.Footnote 26 This is said to occur by framing the judgments of international tribunals as a symbol of the universal condemnation of mass atrocities that is relatable to the general audience.Footnote 27 The symbolic power of international trials is argued to facilitate lawful behaviour within the general public, regardless of the actual risk of facing prosecution. Footnote 28 Hence, expressivism could be understood as a form of ‘pre-deterrence’,Footnote 29 or ‘positive general prevention’, which, by affecting the beliefs of the spectators of international trials about what is right and wrong, would prevent atrocities in the long run.Footnote 30 Thus, expressivism avoids the difficulties of apprehending suspects that render the classical criminal justice goals of retribution and deterrence difficult to obtain in ICL, as the trials of even a few individuals could communicate the wrongfulness of international crimes.Footnote 31
But the communicative power of international punishment has not always been interpreted in ‘benign terms’.Footnote 32 Due to the difficulties of apprehending suspects of mass atrocities and the media attention surrounding international trials, the few available defendants are at risk of being stigmatized as the ‘enemies of mankind’ or ‘enemies of all humanity’. Footnote 33 The excessive stigmatization of all defendants would express the message that an ‘ordinary’ human being could never become implicated in such conducts. Indeed, it has been suggested that the general public appears to prefer to receive that message.Footnote 34 Yet, criminological research has suggested that it does not take ‘intrinsically evil people’ to commit atrocious crimes,Footnote 35 reflecting on Hannah Arendt’s early observations on the ‘banality of evil’.Footnote 36 Mass atrocities have generally been explained with the combined effect of agency – the choice to act in a particular manner – and structural factors – e.g., human beings’ general predisposition to obedience and conformity with group norms, and the existence of harsh conditions of life.Footnote 37 Furthermore, it has been observed that during mass atrocities, individual persons seldom fit a particular category, such as ‘victim’, ‘perpetrator’, or ‘bystander’.Footnote 38 Those roles are often ‘accumulated’ as individuals act in a different manner according to the fast-changing situation.Footnote 39 Presenting all defendants as sadistic and delinquent could obstruct the ‘pre-deterrence’ impact of international trials, by reassuring the general public that they could never be a part of mass atrocities.
The nature of criminal trials, however, does not appear particularly suited for reflecting upon the interplay between agency and structure in mass atrocities. The central question of interest at trial is whether, not why, the defendant has committed the crime.Footnote 40 The preoccupation with determining the accused’s criminal responsibility has been argued to prevent a meaningful enquiry into the personal experiences of the survivors of mass atrocities, whether the latter participate in the proceedings as ‘defendants’Footnote 41 or ‘victims’.Footnote 42 The focus on agency has also been argued to obscure the role of structural factors, such as colonialism, neo-liberal economic policies, and global capitalism in enabling the socio-economic conditions that are considered conducive to mass atrocities. Footnote 43
Nevertheless, suggestions have been made for obtaining expressivism within the limits of the international courtroom. For example, that the punishment of each defendant ‘should convey the right degree of international condemnation relative to other defendants’ at international courts. Footnote 44 It has often been argued that lower-level perpetrators should not be deemed as blameworthy as leadership figures, Footnote 45 or the ‘big fish’ in international criminal justice. Footnote 46 While the former are more likely to be involved in the physical commission of the crimes, the leaders are the ones who ‘set in motion’ the overall criminal plan.Footnote 47
Furthermore, to communicate the degree of the wrongfulness of a defendant’s conduct, it has been suggested that trials should better reflect the ‘individual circumstances of the defendant’. Footnote 48 The most challenging appears to be the case of victim-perpetrators who were conscripted as children, subjected to cruel treatment and forced to commit atrocious acts. Footnote 49 While the agency of victim-perpetrators is not denied, it has been described as a form of ‘constrained’ agency – victim-perpetrators are said to be choosing from a set of options constrained by their former victimization and/or ongoing vulnerability to victimization.Footnote 50 It is argued that, while such persons could bear criminal responsibility, their special personal circumstances could mitigate the degree of punishment Footnote 51 and prevent the imposition of the most ‘radical’ degree of stigma. Footnote 52 Hence, for ICL to succeed in expressing condemnation of mass atrocities in a meaningful way and instil norms of appropriate behaviour, international trials should not only condemn mass atrocities but also explain the complexity of violence, Footnote 53 and avoid the ‘easy’ stereotyping of all defendants as ‘enemies of mankind’. Footnote 54
The question of who is meant to receive that message, however, is equally problematic. One potential candidate is the ‘international community’ understood in a broad sense: as a ‘community of mankind’. Footnote 55 The members of the international community of mankind are considered to be related not on the basis of cultural or ethnic ties but simply as ‘fellow human beings’. Footnote 56 But the actual existence of such a community has been questioned. Footnote 57 Critical scholarship has perceived the invocation of the notions of ‘international community’ or ‘humanity’ not as a neutral act of identifying a natural world order, but as a political act of creation of a specific order by including some ideas and actors within the boundaries of ‘humanity’ and excluding others. Footnote 58 It has been observed that the ICL field has been dominated by Western liberal values, to the exclusion of more pluralist visions of justice. Footnote 59 In fact, ‘deep disagreement’ is said to exist internationally regarding the appropriateness of international trials as means to address atrocities. Footnote 60 The structural inequality of the international realm, resulting in the lack of reciprocal participation in ICL’s development and enforcement, is said to render the image of an international community ‘defective’. Footnote 61 Instead of a harmonious international community, ICL’s uneven application has aroused ‘suspicion’ that international trials could serve powerful countries to exert control over less powerful ones. Footnote 62
Another logical recipients of the messages communicated by international trials appear to be the communities afflicted by violence. Footnote 63 In the aftermath of mass atrocities, however, the receptiveness of local communities could be precluded by the existence of ‘internal’ narratives whereby each community perceives itself as the victim of the crimes committed by other groups and evades responsibility for crimes committed by its own members. Footnote 64 It has been suggested that international trials could improve their communication with the afflicted communities by reaching out to them and explaining the reasoning behind judicial decisions. Footnote 65 Yet, comprehensive studies of the attitudes among afflicted populations have revealed that the expressivist potential of ICL has been lost to them, not because those communities fail to understand legal proceedings, but because of the entrenched feeling of a lack of local ownership over those proceedings. Footnote 66
Nevertheless, it has been acknowledged that there is room for reform that could, over time, improve the receptiveness of ICL’s messages. Some scholars have suggested that the ICL field should become more open about its ‘troubled past’ marked by power inequalities and that the discipline should demonstrate a commitment to change. Footnote 67 This would involve departure from the uncritical application of Western norms or ideals Footnote 68 and demonstrating greater sensitivity to the plurality of local cultures and laws. Footnote 69 ICL’s failure to accommodate non-Western norms of evidence and procedure has been described as ‘far from inevitable’, Footnote 70 which suggests a potential for reform.
Overall, ICL has been argued to hold an important potential to express the wrongness of mass atrocities. Yet, the expressivist goal has also been problematized in view of the failure of criminal trials to explain the role of structural factors in mass atrocities and the potential lack of receptiveness of ICL’s messages. To enhance ICL’s expressivist potential, it has been suggested that international trials should demonstrate the ability to differentiate between degrees of criminal responsibility for mass atrocities, sensitivity to the background circumstances of each defendant, and acceptance of non-Western perspectives of accountability. The following section discusses, however, the extent to which the pragmatic considerations of the ICC’s institutional survival could challenge the realization of meaningful expressivism.
3. The ICC-OTP’s pragmatic considerations: Demonstrating the Court’s effectiveness
Significantly high expectations have been vested in the ICC, perceived as the culmination of a long process of developing ICL since Nuremberg.Footnote 71 The Rome Statute has been considered the ‘pinnacle of the institutionalization and universalization’ of ICL enforcement. Footnote 72 Since its creation, the permanent international penal court has aspired to be ‘about much more than just punishing the perpetrators’.Footnote 73
However, over time, those high expectations have increasingly appeared unrealistic and commentators have pointed to the end of the ‘honeymoon’ for international criminal justice. Footnote 74 After a decade, the Court had served just one judgment, despite having spent nearly one billion US dollars.Footnote 75 The ICC-OTP recently experienced several significant defeats, including the acquittals of Congolese political figure Jean-Pierre Bemba GomboFootnote 76 and the former Ivoirian president Laurent Gbagbo.Footnote 77 While, in domestic settings, acquittals should still be perceived as a sign of a functioning court,Footnote 78 given the ICC’s promise to put an end to impunity for mass atrocities, such outcomes were not well-accepted by NGOs concerned that the victims’ suffering had not been recognized in those trials.Footnote 79 The Prosecutor has also experienced challenges in relation to opening investigations. Recently, ICC judges defined the requested proprio motu investigation in Afghanistan as ‘doomed to failure’Footnote 80 given the lack of state co-operation and the Prosecutor’s limited resources.Footnote 81
The ICC’s operational struggles have resulted in the disenchantment of many with international criminal justice. The difficulties of apprehending suspects due to the lack of an ICC police force and the reluctance of the US, China, and Russia to join the Court have led commentators to conclude that the ICC was ‘an unworkable ide[a] in the world we live in’.Footnote 82 Even proponents of the Court have cautioned that at the current rate of investigations and prosecutions the ICC risks remaining a ‘ruined monument to lost illusions’.Footnote 83 NGOs, which had been among the most ardent advocates of the Court’s establishment,Footnote 84 perceived the Court’s inability to deliver results in the face of increasing demands for international justice as a threat to its legitimacy. Footnote 85 Scholars have observed that even ICC officials have recognized that expectations of what the Court could achieve should be ‘managed’.Footnote 86
In order to survive as an institution within such a challenging context, the ICC has to demonstrate the significance of not just international criminal justice, but also its own as ICL’s necessary institutional embodiment. According to the ICC’s current president:
Even if prevailing circumstances seem to make impunity possible for the meantime, perpetrators and their accomplices will – now – have to recognise that their impunity will always be actionably illicit in the eyes of the world … as long as we have a permanent international criminal court that will ask questions of accountability …Footnote 87
In such context, the defendants standing trial at the Court become instrumental to communicating the ICC-OTP’s ability to hold at least some persons accountable for mass atrocities.
The scarcity of available defendants and the ICC’s institutional interests significantly limit the potential of ICC trials to communicate the wrongfulness and complexity of mass atrocities in a meaningful manner. It has been suggested that the fewer perpetrators a tribunal tries, the more evil they have to appear. Footnote 88 Recognizing the ICC suspects as ‘enemies of mankind’ increases the Court’s chances of obtaining international co-operation in investigations and arrests.Footnote 89 Consequently, the small number of persons available for international trials could result in charging any defendant with as much destruction as possible. Footnote 90 Notably, high-level defendants have proven particularly challenging to prosecute at the ICC. The Prosecutor has so far failed to link leadership figures, such as Bemba and Gbagbo, to the crimes committed on the ground by their subordinates or supporters.Footnote 91 The diminishing opportunities of convicting high-level defendants, risks subjecting the lower-ranking ones, who have been present on the ground and are more likely to be proven guilty, to bear an even higher proportion of the stigma associated with the collective conduct.
Another limitation to the expressivist potential of ICL stemming from the ICC-OTP’s pursuit of its institutional interests is the potential politicization of the messages sent to the aspired-to international community.Footnote 92 It has been observed that the ICC is ‘entirely dependent’ on state co-operation to conduct investigations and apprehend suspects.Footnote 93 If the Court was to accommodate state interests by avoiding prosecutions against certain actors on which the ICC-OTP relies for co-operation, as many have suggested to be the case, Footnote 94 this could lead to focusing exclusively on the few available defendants as the ultimate causes of violence, without due regard to the multiplicity of actors involved in mass atrocities. The excessive stigmatization of the defendants could thus produce a simplistic representation of the reality of mass atrocities by juxtaposing the perceived ‘enemies of mankind’ – the few individuals selected for prosecution – against the ‘friends of the international community’ – the warring parties whose political and military interests align with the ICC-OTP’s investigation.Footnote 95 This article goes beyond the level of case selection and examines the seeming influence of the Prosecutor’s dependency on government co-operation on the decisions concerning the content of the selected cases.
The rest of this article examines the limitations imposed by the ICC’s pragmatic considerations on the expressivist potential of the Ongwen trial. On the one hand, being the only apprehended LRA suspect for over a decade, Ongwen presented the only tangible opportunity for the ICC-OTP to demonstrate effectiveness in relation to the its symbolic first investigation in Uganda, which risked the defendant’s excessive stigmatization. On the other hand, several factors would suggest the mitigation of Ongwen’s stigmatization if the proportionality aspirations of expressivism were upheld – Ongwen’s lower rank vis-à-vis the other LRA suspects and his abduction and victimization by the LRA at an early age. The presentation of the defendant in Ongwen then would be particularly elucidating for the limits of the expressivist aspirations of international criminal justice in practice. If the Prosecutor had engaged with the continuities of violence during Ongwen’s life, that have transformed the former victim into an alleged perpetrator, and expressed condemnation of the defendant that is proportionate to his conduct, the trial could have communicated a strong message about the complexities of mass atrocities and resonated with the understandings of the conflict held by local communities in Northern Uganda. However, as will be discussed, the Prosecutor instead conferred upon the defendant the stigma associated with the LRA overall, seemingly as a result of the pragmatic decisions to demonstrate the ICC’s ability to effectively prosecute notorious criminals.
The following section first analyses the practical challenges faced by the ICC-OTP during the Ugandan investigations, which resulted in the apprehension of only one LRA suspect – Dominic Ongwen – and the international pressure on the Court to deliver successful prosecutions, which appear to have influenced Ongwen’s excessive stigmatization as the enemy of mankind in relation to the atrocities in Northern Uganda. Next, the section examines the various ways in which Ongwen’s dehumanization has played out – in the selection of charges and the modes of Ongwen’s alleged criminal responsibility, and in the reluctance to engage with the complexities of Ongwen’s past victimization. The main implications observed are the seemingly disproportionate degree of the stigma associated with the LRA’s overall criminal conduct that is currently vested upon Ongwen and the simplification of the roots of violence in Northern Uganda.
4. ICL expressivism v. ICC-OTP expressivism: The Ongwen case
4.1 The ICC’s challenging socio-political environment
In its early days in 2003 the ICC-OTP received a referral letter from the GoU concerning crimes committed by the LRA against the Acholi civilian population in Northern Uganda.Footnote 96 This appeared to be a promising opportunity for successful prosecutions, as the ICC-OTP considered that self-referrals expressed states’ ‘political will’ to co-operate in investigations.Footnote 97 In 2005, the Court issued arrest warrants against five LRA commanders: Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen,Footnote 98 which became the highly symbolic first ICC case. From an expressivist perspective, the Prosecutor’s original strategy appeared sound – bringing charges against several persons at various levels within the LRA command, which reflected the different degrees of their involvement in its criminal activities and implied a different degree of condemnation. Rather than charging all these commanders with the same conduct, as will be discussed in the next section, each arrest warrant specified a different number of charges concerning crimes committed in the context of specific LRA attacks.
However, early signs of compromising proportionality by focusing excessively on one side of the conflict appeared in the selection of defendants. While the ICC-OTP declared its commitment to investigate all crimes,Footnote 99 it did not start proceedings against the government or the UPDF, stressing that the LRA’s crimes were of higher gravity.Footnote 100 Yet, the government’s policy of forcibly relocating the Acholi population into camps for internally displaced persons (IDPs) has had devastating consequencesFootnote 101 and UPDF abuses have been well documented.Footnote 102 The decision to prosecute only the LRA raised concerns over politicizing justice.Footnote 103 While the OTP seemed to be following a pragmatic ‘sequenced’ approach – prosecuting firstly the cases made ‘feasible’ by the availability of government co-operation and then proceeding with the more challenging-to-investigate casesFootnote 104 – it did not bring charges against other actors within the Ugandan conflict.
Subsequent developments in the ICC’s socio-political environment have made the recognition of potential government involvement in the Prosecutor’s cases in general even more challenging. The ICC co-operation with the GoU and other African countries deteriorated over time. Disagreements between the ICC and the GoU began with the Juba peace talks between the government and the LRA in 2006Footnote 105 and intensified on a regional level after the Court issued arrest warrants against former Sudanese President Al-BashirFootnote 106 and opened a proprio motu investigation in Kenya.Footnote 107 Despite the arrest warrants, the GoU hosted Al-Bashir twice,Footnote 108 and Uganda’s President even stated that he no longer supported the ICC.Footnote 109 Many African governments appeared concerned with the stigmatization of only African leaders as the perpetrators of mass atrocities and the perception of ICC bias against Africa gained traction in regional discourses.Footnote 110 The African Union increasingly challenged the ICCFootnote 111 and set out to create its own African Criminal Court.Footnote 112 Meanwhile, two ICC defendants united in a coalition and won the Kenyan elections on a platform which, inter alia, portrayed the ICC as a neo-imperialist institution,Footnote 113 and in 2017 Burundi became the first country to leave the ICC.Footnote 114
The challenges of obtaining state co-operation, however, have not alleviated the pressure on the ICC-OTP, now into its second decade of operation, to demonstrate results. Not only did human rights activists demand prosecutions, but they demanded prosecutions for a broad set of crimes. The first ICC-OTP strategy, which consisted of ‘focused investigations’ targeting only a sample of crimes per case, Footnote 115 proved unpopular with NGOs as it was seen to fail to fully reflect victims’ suffering.Footnote 116
In such a turbulent context, Ongwen was apprehended in 2015. During the decade since the LRA arrest warrants were issued, the prospects of expressing the power of the rule of law by punishing the alleged perpetrators of the atrocities in Northern Uganda had been gradually decreasing. Lukwiya and Odhiambo had died,Footnote 117 Otti was considered dead,Footnote 118 and the prospects of capturing Kony were diminishing. Yet, Ongwen’s apprehension provided an opportunity for demonstrating the importance of the Ugandan investigation. Ongwen’s trial transformed the LRA cases from a failure of the ICC-OTP into a symbol of the Court’s persistence, as evident in Prosecutor Bensouda’s statements:
The wheels of justice may turn slowly but turn, they surely will … Let us embrace the independent and impartial judicial process offered by the Court as a means of bringing healing and closure for victims of mass crimes and to ensure the atrocities that devastated communities in Northern Uganda will never happen again.Footnote 119
Furthermore, the Ongwen case could establish the Court’s effectiveness while avoiding further confrontations with African governments, as it involved a rebel instead of a state official. In fact, the GoU provided materials to support the charges, including intercepted LRA radio communications.Footnote 120 Ugandan agencies helped the prosecution to break the codes used by the LRA and identify commanders by their voices.Footnote 121 Yet, the GoU’s bold decision to host Al-Bashir as the Ongwen proceedings were unfolding may have made the ICC-OTP cautious about losing Ugandan assistance.
This complex socio-political environment within which the ICC operates led to the instrumentalization of Ongwen as a means to demonstrate the effectiveness of the ICC-OTP and its potential for co-operation with African governments. However, this instrumentalization obstructed ICL’s expressivist aspirations by leading to Ongwen’s disproportionate stigmatization through the selection of charges and the characterization of his criminal responsibility, which ultimately cast Ongwen as the ‘cause’ of suffering in Northern Uganda.
4.2 The charges against Ongwen
The 2005 LRA arrest warrants included 33 counts of crimesFootnote 122 in connection to six LRA attacks.Footnote 123 The arrest warrants demonstrated sensitivity to the degree of criminal responsibility of the different suspects. As the persons holding the highest positions in the LRA, KonyFootnote 124 and Otti were charged with all counts in relation to all six attacks.Footnote 125 Odhiambo was charged with nine countsFootnote 126 and Lukwiya with three counts.Footnote 127 Ongwen’s arrest warrant included seven counts of crimes in relation to one attack only – that on the Lukodi IDP Camp.Footnote 128 He was mentioned last when then Prosecutor Moreno-Ocampo discussed the caseFootnote 129 and attracted the least attention among the LRA suspects. When Ongwen was apprehended, his case was severed from the case against the rest of the LRA suspects, Footnote 130 which enabled the Prosecutor to build a case specifically against Ongwen.
The ‘narrative’ of the case considerably transformed, seemingly as a result of the unavailability of other LRA suspects for trial.Footnote 131 The new case against Ongwen had significant implications for the degree of stigma which the accused was to bear. In September 2015 the ICC-OTP filed a notice on the intended charges against Ongwen involving 67 counts.Footnote 132 The final DCC included 70Footnote 133 – the largest set of charges at the ICC. The number of charges was remarkable. For comparison, the Milošević trial, which raised much attention due to the high number of charges, involved 66 counts. Ongwen surpassed that number, even though the former case concerned a head of state and included allegations of crimes committed during three different wars, over nearly a decade.Footnote 134 While Ongwen had entered the ICC bearing the stigma of allegations concerning seven counts of crimes committed in the course of one attack, he now appeared as a person of the same rank as some of the most notorious international defendants.
The charges listed in the DCC against Ongwen differed from those in the arrest warrant not only in terms of quantity but also in quality. The DCC charges reflected crimes committed by the organization as a whole and bore particular resemblance to the charges against the leader –Kony. The narrative originally used by the ICC-OTP around Kony was redeployed for the case against Ongwen after his apprehension. Moreno-Ocampo had argued that Kony had ordered attacks against civilians and abductions of children, held abducted girls in his household, and distributed women to LRA commanders,Footnote 135 themes that became central to Ongwen in 2015. The Prosecutor added to the charges against Ongwen, attacks on three other IDP camps apart from LukodiFootnote 136 and allegations of recruiting and using child soldiers.Footnote 137 The Prosecutor held further that Ongwen had personally abused women in his householdFootnote 138 and distributed women to other LRA fighters.Footnote 139 Overall, the new charges were no longer limited to one attack, but reflected patterns of LRA criminality: systemic attacks, abductions of children, and the abuse of women.
The expansion of the set of charges against Ongwen, which also occurred in other ICC cases (albeit not to the same degree),Footnote 140 seemed to be influenced by the calls of human rights activists demanding the condemnation of specific crimes at the ICC. The OTP was highly criticized for excluding sexual and gender-based crimes (SGBC) from the charges in Lubanga.Footnote 141 The lack of stigmatization at the Court of such crimes has been perceived by gender justice advocates as signalling that SGBC are of lesser importance than other international crimes.Footnote 142 By contrast, the Ongwen charges have served to condemn a large set of SGBC. The Prosecutor expanded the SGBC charges by adding allegations of the crime of ‘forced marriage’ in addition to those of sexual slavery.Footnote 143 The Special Court for Sierra Leone had left an inconclusive legacy regarding the crime, with some Chambers treating it as a distinct crime and others as subsumed within the notion of sexual slavery.Footnote 144 In Ongwen, the ICC judges agreed with the Prosecutor that forced marriage was a distinct crime,Footnote 145 which was perceived as an achievement for gender justice and earned NGOs’ valuable approval.Footnote 146
While charging Ongwen with so many SGBC might signal to NGOs that the ICC-OTP is able to successfully prosecute such crimes, it obstructs the socio-pedagogical aspirations to express the wrongfulness of such crimes. The focus of the case shifted from the actual events – Ongwen’s alleged violence against his wives – to abstract categories such as ‘enslavement’, ‘sexual slavery’, and ‘forced marriage’, the difference between which would be probably hard to discern by a non-specialist audience. The excessive stigmatization of Ongwen as the alleged perpetrator of SGBC through such charging practices risks conveying the problematic message that a human being could never perpetrate such acts. By allowing the case to be influenced by human rights NGOs’ politics, the ICC-OTP (intentionally or not) impeded its socio-pedagogical potential.
From an expressivist perspective, the significant stigmatization resulting from the large set of charges against Ongwen could have been offset by ensuring that it was proportionate to the defendant’s degree of criminal responsibility for the overall LRA criminal conduct. Yet, it is not clear that has been the case. As observed by ICC judges, criminal responsibility for international crimes often rises in tandem with the defendant’s rank. Footnote 147 Not only did the Ongwen DCC contain the same themes of crimes as the case against the LRA’s infamous leader, but Ongwen ended up being charged with more than twice the number of charges as Kony.Footnote 148 While it is possible that Kony will one day stand trial at the ICC, it is unclear whether increasing the quantity of charges against the LRA’s leader would make the charges against Ongwen seem proportionate because, in terms of the quality of charges, Ongwen already bears the stigma of standing trial for a variety of the most heinous LRA conducts.
Notably, the disproportionate charging is not prima facie a source of concern from a strictly legal perspective. International prosecutors are not obliged to charge different defendants consistently in relation to the same factual incidents.Footnote 149 New evidence could arise over time that supports adding charges, as specified in Ongwen. Footnote 150 Consequently, the analysis of Ongwen supports one of the main theoretical propositions made by the scholarship on expressivism – that the technical nature of the Western legal tradition poses an important limitation to the didactive potential of international trials.Footnote 151
4.3 Ongwen’s criminal responsibility
The degree of Ongwen’s stigmatization was further increased when the Prosecutor alleged that the defendant was the principal perpetrator of the crimes committed by LRA troops under his command, rather than a mere accessory to them. The status of the principal perpetrator caries unique stigma.Footnote 152 The Nuremberg and Tokyo tribunals did not distinguish between principals and accessories.Footnote 153 The UN tribunals were criticized for insufficiently differentiating between the criminal responsibility of the participants within a ‘joint common enterprise’.Footnote 154 By contrast, ICC jurisprudence has distinguished between principal liability pursuant to Article 25(3)(a) ICC Statute and accessory liability pursuant to Article 25(3)(b)-(d) ICC Statute.Footnote 155 The ICC considers principals those who have decisive influence on the crime’s commission.Footnote 156 The person acting ‘through another’ person, the ‘indirect perpetrator’, is considered a principal perpetrator even if she is not the physical perpetrator.Footnote 157
The ICC’s differentiative approach generates a powerful discursive tool for presenting the defendant’s criminal responsibility. To establish the indirect perpetrator’s control over the crime, the ICC uses the control over an organization (Organisationsherrschaft) theory.Footnote 158 The indirect perpetrator should control a hierarchical power apparatus with numerous subordinates, to ensure that her orders would be carried out ‘if not by one subordinate, then by another’.Footnote 159 The physical perpetrator thus becomes ‘a mere gear’ in a machine controlled by the indirect perpetrator – the mastermind.Footnote 160 This mechanized model, which corresponds with the image of anonymous bureaucracies indulging in mass atrocities created in the aftermath of the Second World War,Footnote 161 dehumanizes both the physical perpetrators – who appear almost as ‘soulless humans’Footnote 162 – and the indirect perpetrator portrayed as a powerful mastermind with seemingly unhuman level of control over the rank-and-file. The unnatural image of the indirect perpetrator controlling a criminal organization is enhanced by the fact that, according to ICC judges, the act of issuing orders in any context different from such a criminal apparatus constitutes merely accessory liability.Footnote 163 Characterizing the defendant’s criminal responsibility as principal liability based on the Organisationsherrschaft theory, thus, appears to confer a higher degree of stigma compared to accessory liability for issuing orders.
The OTP took this approach after Ongwen’s apprehension. Many of the charges involved allegations that Ongwen had ordered his troops to commit crimes. The 2005 arrest warrant characterized Ongwen’s criminal responsibility as accessory liability pursuant to Article 25(3)(b) of the ICC Statute.Footnote 164 In the DCC and at trial, the ICC-OTP continued to rely on evidence of Ongwen’s orders, alleging that Ongwen had ordered his subordinates to pillage camps,Footnote 165 kill people,Footnote 166 burn houses,Footnote 167 abduct and beat women,Footnote 168 and conscript children into the Sinia brigade.Footnote 169 Unlike in the arrest warrant, however, in 2015 the ICC-OTP characterized Ongwen’s orders in the first instance as principal liability in the form of indirect perpetration or indirect co-perpetration (acting jointly with other co-perpetrators)Footnote 170 in connection to 59 charges.Footnote 171 Consequently, in the DCC the Prosecutor adopted the language of Organisationsherrschaft, the ICC approach to distinguishing orders constituting principal liability from orders constituting accessory liability. The LRA was presented as a mechanized hierarchical apparatus where troops automatically complied with the leadership’s orders. Footnote 172 The legal discourse of Organisationsherrschaft transformed Ongwen from a brigade commander into one of the LRA’s masterminds. The original arrest warrant defined his criminal responsibility in simple terms: ‘in his capacity as a Brigade Commander … Dominic Ongwen ordered the commission of several crimes’. Footnote 173 The 2015 DCC presented a far more comprehensive narrative: ‘He mobilized his authority and power in the LRA … to secure compliance with his orders and cause his subordinates to carry out the conduct.’ Footnote 174 By defining Ongwen’s criminal responsibility as principal liability in the DCC, the Prosecutor presented him as one of the most notorious LRA commanders.
Yet, as with the selection of charges, Ongwen’s principal perpetrator status appeared to carry disproportionate degree of stigmatization compared to other LRA commanders. As described in the arrest warrants, Ongwen had held lower rank than the other suspects. At the top of the LRA had been the ‘High Command’, followed by the commanders of its four brigades: Gilva, Sinia, Trinkle, and Stockree, each composed of a number of battalions.Footnote 175 Kony had been the leader, Otti – the Vice Chairman,Footnote 176 and Lukwiya – the Army Commander.Footnote 177 Odhiambo had served successively as commander of two brigades and as Deputy Army Commander.Footnote 178 As a Commander of the Sinia brigade,Footnote 179 Ongwen had occupied the lowest rank among the five.Footnote 180 Moreover, during the 2003 Pajule attack, included in the DCC, Ongwen had still been serving as a battalion commander.Footnote 181 Ongwen himself apparently considered that the highest degree of criminal responsibility fell on the leadership figure and stated at the trial opening that: ‘the charges I do understand as being brought against LRA but not me, because I’m not the LRA. The LRA is Joseph Kony’.Footnote 182 Some civil society representatives in Northern Uganda also observed that more senior commanders had not been brought to trial and that Kony should instead be held responsible for LRA crimes. Footnote 183
To counter any doubts in Ongwen’s criminal responsibility as a principal perpetrator, at trial, the ICC-OTP specified that, instead of being ‘under Kony’s thumb’,Footnote 184 Ongwen had enjoyed full ‘discretion about how to carry out the attacks that his troops conducted’.Footnote 185 Yet, this does not imply that Ongwen had held the same degree of control over the LRA’s crimes, and hence should bear the same degree of stigma as Kony. Research into the LRA has found that for years the cult of Kony’s personality has been reinforced by the belief in his mystical supernatural powers and fear of his ruthless responses to defections.Footnote 186 Many LRA members believed that Kony could read their minds and anticipate their attempts to escape.Footnote 187 Ongwen had himself been abducted by the LRA as a childFootnote 188 and despite his progress within its hierarchy, it is difficult to imagine that the young commander had not feared Kony’s mystical powers or had enjoyed the same authority as the notorious leader. The prosecution acknowledged that Kony had been the LRA’s ‘undisputed leader’ Footnote 189 and the original author of the orders to commit crimes, Footnote 190 which were then ‘relayed’ down the chain of command by ‘senior LRA commanders’. Footnote 191 The ICC-OTP further noted that LRA commanders, including Ongwen, occasionally reported incorrectly the results of their attacks ‘to avoid Kony’s wrath’Footnote 192 and that Ongwen had to request permission from Kony to conduct attacks.Footnote 193 Nevertheless, the Prosecutor maintained that Ongwen had also exerted power over the crimes’ commission, which justified charging him as a principal perpetrator, Footnote 194 regardless of the potential excess of stigma which that label carried by virtue of treating Ongwen’s criminal responsibility for LRA crimes on an equal footing with Kony’s. Therefore, the expressivist potential of the Ongwen case to explain the complexities of violence in Northern Uganda has been limited by the ethnocentric bias of Western legalism towards evidence demonstrating material control, rather than the mystical structures of power.Footnote 195
Another implication from the instrumentalization of the defendant for the purposes of the Court’s institutional interests was the simplified depiction of the politics of violence in Northern Uganda in the Prosecutor’s narrative. The ICC-OTP alleged that, as a principal perpetrator Ongwen had ‘cause[d]’ his subordinates to commit the crimes. Footnote 196 Consequently, the role of other actors apart from the LRA who had exacerbated the crisis in Northern Uganda was completely excluded from the Prosecutor’s narrative. One ICC-OTP witness testified that he was unaware of UPDF atrocities. Footnote 197 This triggered criticism from members of local communities, recollecting that the National Resistance Army (NRA), the UPDF’s predecessor, had committed crimes against civilians even before the LRA became operational, Footnote 198 such as the NRA abuses in Namokora Footnote 199 and in Burcoro. Footnote 200 The exclusive focus on Ongwen as the ‘cause’ of suffering in Northern Uganda also obfuscated the role of government policies in enabling and perpetuating violence in terms of rendering civilians vulnerable to LRA attacks by encamping them in poorly protected villages. Footnote 201 The poor water and sanitation conditions in those camps also led to the spread of diseases. Reportedly, malaria and AIDS were the most frequent causes of death among civilians, with violence coming third.Footnote 202
The narrow focus on LRA violence, with Ongwen stigmatized as the personification of that violence, might have strengthened state co-operation with the ICC-OTP, but it also expressed to the aspired-to international community the message that the roots of mass atrocities could be traced to the cruel plots of a few individuals, Footnote 203 and resonated with the long history of portraying African warlords as ‘savages’. Footnote 204 Burdening the defendant with a disproportionate degree of stigma for mass atrocities could undermine the confidence of local communities in international justice because the abyss between legal presumptions of decontextualized individual criminal responsibility and local recollections of suffering could be perceived by the affected communities as an ‘impunity gap’. Footnote 205 Furthermore, the ICC-OTP’s reductionist approach alleviates any pressure on the aspired-to international community of mankind to take measures regarding systemic dimensions of suffering during mass atrocities, including by monitoring government policies and the implementation of humanitarian programs.
While the characterization of Ongwen’s criminal responsibility as a principal perpetrator might seem disproportionate and politicized, just as with the selection of charges, it did not violate the legal requirements of ICC jurisprudence. The Prosecutor complied with the requirement to present evidence of Ongwen’s control over the crime in order to charge him as a principal perpetrator,Footnote 206 but she did not have to prove that Ongwen had been a principal perpetrator at the same level as other LRA suspects. According to ICC jurisprudence, persons at various positions within an organization’s hierarchy could be deemed principals to the respective crime.Footnote 207 It has been acknowledged that Organisationsherrschaft fails to reflect on different degrees of control over the crime,Footnote 208 which has important implications for defining the criminal responsibility of mid-level commanders. They have to be ‘interchangeable’ in order to secure the control of the top leadership over the organization, but their replaceability impedes their control over low-ranking members, as their orders could at any point be invalidated from above. Footnote 209 Nevertheless, despite the failure of the ICC’s legal requirements for establishing principal liability to reflect degrees of blameworthiness, and consequently, stigmatization, many have perceived those requirements to be better in comparison to those imposed by the Court’s predecessors in terms of compliance with criminal law principles. Footnote 210 Thus, Ongwen has demonstrated once again that strict compliance with legal requirements does not protect the few available-for-trial defendants from excessive stigmatization and instrumentalization for the ICC-OTP’s institutional interests, and could in fact preclude the expressivist potential of ICC trials.
4.4 The child soldier turned ‘enthusiastic’ perpetrator
Yet, despite the seeming impact of the Court’s socio-political environment which had rendered Ongwen the only apprehended LRA commander and challenged the recognition of other actors in the trial narrative, the significant degree of stigmatization conferred upon Ongwen was not preordained. According to the defence, Ongwen was himself abducted by the LRA at the age of nine. Footnote 211 Not only did Ongwen reject the status of a perpetrator, but he considered himself an LRA victim. Footnote 212 As the defendant did not fit the traditional ‘perpetrator’ concept, Ongwen challenged ICL’s ‘black-and-white’ concepts of guilt and innocence.Footnote 213 It has been suggested that by virtue of Ongwen’s peculiar background circumstances the Prosecutor would not engage in excessive stigmatization of that particular defendant.Footnote 214 Yet, Ongwen’s objectification for the purpose of demonstrating the importance of the ICC-OTP’s work resulted in such excessive stigmatization that the defendant no longer appeared ‘human’.
The dehumanization of Ongwen was both passive and active. It was passive in the sense that neither the Prosecutor, nor the judges expressed willingness to engage with the question of the continuities of violence in the defendant’s past. Rather, both judges and prosecution appeared interested in the matter only in relation to the question of whether, regardless of Ongwen’s past victimization, he could still be held criminally responsible. It was briefly observed that Ongwen’s past victimization did not absolve him from criminal responsibility for the crimes he had committed as an adult. Footnote 215 The defence’s argument that Ongwen had acted under duress while at the LRA, Footnote 216 subjected to systematic indoctrination and threats made by other persons, including by Kony, Footnote 217 was examined in the same legalistic manner. The judges were interested only in whether the LRA’s brutal regime had constituted ‘a threat of imminent death or continuing or imminent serious bodily harm’ against Ongwen, Footnote 218 quoting verbatim the Rome Statute requirements for establishing duress. Once it was established that the facts presented by the defence did not meet that legal standard,Footnote 219 their potential significance for shedding light on the system of indoctrination within which the defendant had been brought up appeared irrelevant for the judges. As Drumbl observes, the judges in Ongwen departed from their colleagues in Lubanga where the defendant was charged with recruiting and using child soldiers. In that case the judges emphasized the pernicious ongoing effect of early-age conscription in an armed group. By contrast, the judges in Ongwen examined the defendant’s agency ‘as if he had never been a child, let alone a child in the LRA’. Footnote 220 Consequently, ICC judges appeared to recognize the impact of childhood victimization when it came to the victims of crimes, but not the defendant on the dock. Overall, Ongwen’s past victimization was reduced to a potential hurdle to his prosecution, which once overcome, opened the door to treating the defendant as no different than any other accused of international crimes.
Establishing that Ongwen’s past victimization was no bar to his prosecution, by implication established that there was no bar to his dehumanization. The prosecution actively maintained that not only did Ongwen’s past fail to exculpate him, but the defendant also personally enjoyed committing crimes. The ICC-OTP emphasized Ongwen’s promotions after successful attacks Footnote 221 and argued that he initiated operations Footnote 222 and abused women ‘enthusiastically’. Footnote 223 The Prosecutor underlined that, despite his own victimization, Ongwen used child soldiers. One witness testified that when he met the accused in 2006, Footnote 224 Ongwen refused to release the children escorting him. Ongwen allegedly responded: ‘You call them children. I call them my soldiers.’ Footnote 225 Not only was the impact of Ongwen’s own abduction and upbringing within the LRA on his subsequent behaviour not examined, but his alleged conduct as an adult seemed to be interpreted as negating his past victimization. The image of the commander acting with ‘unwavering loyalty and ferocity’ Footnote 226 countered that of the victimized ex-child soldier. Consequently, in the Prosecutor’s narrative Ongwen emerged not merely as an ordinary perpetrator, rather than a victim-perpetrator, but as one of the cruellest perpetrators the Court had seen.
While the defendant’s excessive dehumanization may have not been an intended strategy by the ICC-OTP, it seems to be influenced by the pressure of demonstrating the latter’s ability to prosecute the figures most responsible for international crimes. Back in 2005, when the case concerned five LRA commanders, the ICC-OTP referred to Ongwen simply as a ‘Brigade Commander’.Footnote 227 It was only after Ongwen emerged as the most promising opportunity for completing a successful prosecution in relation to the Uganda investigation that the more vibrant, and more shocking, picture of his character was presented. The new image of Ongwen not only suggested that he was one of the persons most responsible for the LRA’s atrocities and, hence, the trial against him could bring meaningful justice for those crimes, but also enabled the Prosecutor to reconcile the extraordinary number of charges and Ongwen’s principal perpetrator status with his personal image. The high number of charges and the principal liability allegations simultaneously constructed the image of the ferocious commander and were justified by it. None would have been sustained without the other.
Moreover, emphasizing Ongwen’s ferocity had the effect of further decontextualizing violence and obfuscating the GoU’s role, as his putative eagerness to commit crimes excluded questions about his political motivations. This image was transferred onto the overall LRA: the depoliticized depiction of violence as an end for the organization was made to appear natural since one of its masterminds had allegedly personally enjoyed committing crimes, even though according to expert commentators, the LRA had a commonplace political ideology, which it combined with indoctrination and fear to control its members.Footnote 228 Scholars have defined the LRA as a rational organization, which employed violence as ‘a means to an end rather than an end in itself’.Footnote 229 However, acknowledging the LRA’s complicated political relationship with civilians would have disrupted the narrative of the government’s innocence.Footnote 230 President Museveni had for decades referred to the rebels in Northern Uganda as primitive criminals, denying the conflict’s political dimension and contrasting the opposition against the rational and modern government.Footnote 231 By suggesting that Ongwen has engaged in violence for its own sake and avoiding questions into his political beliefs, the ICC-OTP perpetuated that narrative.
Thus, Ongwen’s ferociousness and pleasure in violence became the keystone that held the Prosecutor’s case together. Focusing the narrative on those features of the defendant that differentiate him from all other persons who have lived in the same harsh environment but do not stand trial, enables the Prosecutor to make a more convincing case as to why that person deserves punishment. In Ongwen, the prosecution took the approach that enabled it to best structure the case against the defendant, a case that complied with ICL’s narrow legal requirements for conducting a fair trial, but offered a simplified and partial reading of the causes of violence and suffering in Northern Uganda to the aspired-to international community. Whether that case would be also successful for the purposes of conviction, however, is up to the Trial Chamber.
5. Conclusions
This article problematized the expressivist aspirations of international criminal justice – a topic of lively theoretical debate – from the perspective of the socio-political reality within which the ICC-OTP operates. As the Ongwen case has demonstrated, the pragmatic needs of the ICC to secure its institutional survival significantly limit the opportunities for pursuing expressivism in a meaningful way at the Court. In 2017 the US and Ugandan military ended their search for Kony, described by one commentator as ‘abandoning the international effort to bring him to justice’. Footnote 232 This could have been a major loss for the ICC-OTP, had the Court not already apprehended Ongwen. As a senior NGO official observed, Ongwen’s trial constituted ‘a significant first on justice for LRA atrocities’. Footnote 233 The inability to apprehend any other LRA suspects, especially Kony, transformed Ongwen into the symbolic representative of the LRA’s violent campaign at the Court, despite the fact that at the time relevant to the charges, Ongwen had held the lowest rank among the five suspects. While some commentators suggested that Ongwen’s own victimization as a child might reduce the stigma of being accused of international crimes,Footnote 234 in practice it has been the other way around – the excessive dehumanization of Ongwen in the Prosecutor’s narrative has negated the significance of his personal experience. The exclusive focus on the LRA’s crimes was seemingly compounded by the need to sustain the co-operation of the GoU during the proceedings. In effect, Ongwen emerged from the Prosecutor’s narrative as the ‘cause’ of the crimes committed in Northern Uganda, which led to double excess in stigmatization – firstly, by symbolically embodying the criminal responsibility of the entire LRA for the crimes and, secondly, by absorbing the impact of other causes of suffering such as UPDF abuses and government policies, which had devastated the civilian population.
The Prosecutor’s arguments in Ongwen not only failed to explain the complexities of violence in Northern Uganda, but also to move away from the Western norms of narrow legal rationality in the assessment of background information. The legalistic approach of the case demonstrated in both the Prosecutor’s narrative and the Pre-Trial Chamber’s reasoning compounded the impact of the pragmatic considerations to demonstrate the Court’s effectiveness and further precluded the realization of expressivism in a meaningful manner. Each aspect of the Prosecutor’s case against Ongwen complied with the requirements of establishing individual criminal responsibility. The complications stem from what the law does not require from the prosecution. The OTP is free to bring as many charges as desirable as long as they are supported by sufficient evidence but is not required to ensure that the quantity or quality of charges is proportionate to the role of the accused within the respective criminal organization. In fact, from a strictly legalistic perspective, this could be resisted as an instance of politicization of the law. Similarly, the ICC-OTP could charge the defendant as a principal perpetrator if the elements of principal liability premised on the notion of Organisationsherrschaft are established, but the doctrine itself fails to differentiate between the degree of criminal responsibility of principals at different levels of the organization. The implications of the legalistic approach, however, are most evident in the reductionist nature of individual criminal responsibility – unless the specific background circumstances of each perpetrator constitute a bar to prosecution, those facts are irrelevant for the determination of the guilt or innocence of the accused. It is in the silence of the law that the socio-political challenges faced during international prosecutions play out and result in the excessive dehumanization of the accused.
The analysis of Ongwen suggest that a first step to obtaining ICL’s expressivist aspirations in a socially beneficial manner should involve modesty from the ICC-OTP, in terms of acknowledging the lower rank of certain defendants, in order to reflect their participation in the crimes in a more proportionate manner. A more significant step would involve the readiness to lose the co-operation of some governments – that would enable a more balanced narrative of the causes of suffering. The ICC’s socio-political environment might render such an approach significantly challenging but as Ongwen demonstrates, the strategy of decontextualizing violence and overemphasizing the accused’s agency might not be a particularly successful one for the Court either.
The ‘messages’ communicated by the ICC-OTP through the Ongwen proceedings have been received with mixed reactions. Different audiences, as varied as local communities, civil society organizations, and international scholarship, have questioned the expressivist value of the trial. Local communities in Northern Uganda have debated not only whether Ongwen should be held criminally responsible in the first place, but also whether the measures taken against him have been proportionate, considering the broader context of violence,Footnote 235 and whether Ongwen should have been tried in Uganda instead.Footnote 236 Scholarly works have also expressed concerns with the inability of the Prosecutor’s narrative to engage in a meaningful way with Ongwen’s victim-perpetrator identity.Footnote 237
The Ongwen trial also sends a distorted message to the abstract ‘international community of mankind’: that atrocities, such as those committed in Northern Uganda, could only be perpetrated by someone exceptionally cruel and ferocious – a person who commits crimes with ‘enthusiasm’. The effect of the defendant’s stigmatization appears to be to ‘ease the frustration’ of the aspired-to international community by providing a simplistic explanation for otherwise incomprehensible events and to divert attention from the socio-political structures behind those events in which the general public might also be complicit. Footnote 238
The Ongwen case further reaffirms the image of the ‘enemy of mankind’ as non-white, male, strong, gruesome, and particularly barbaric Footnote 239 – an image produced by the overall selection of suspects at the Court. The Prosecutor’s geographical focus on Africa has been defended on legal or pragmatic grounds Footnote 240 but the selection of defendants has, nevertheless, been perceived by some as ‘arbitrary’ because the few Africans who have been prosecuted at the ICC do not have ‘the monopoly on international criminality (not even in Africa)’. Footnote 241 The exclusive focus on the alleged conduct of the few African nationals put on trial has obfuscated the role of developed countries in perpetuating the economies of violence and structures of inequality contributing to the commission of mass atrocities. Footnote 242 While the geographical focus of the ICC-OTP’s investigations has been gradually expanding, which could mitigate the association of the perpetrators of international crimes specifically with Africa, unless the Prosecutor engages with the complexities of violence peculiar to mass atrocities ICC trials will continue to produce simplistic narratives to the detriment of a few individuals.
Nevertheless, it would be misleading to suggest that the ICC’s institutional interests and the narrow legalistic focus on personal guilt inevitably prevent meaningful expressivism. While the Prosecutor’s ability to choose might be significantly constrained by the unavailability of state co-operation, the ICC-OTP still retains important power in formulating the messages that are being sent through international trials. To conclude that the excessive stigmatization of the few defendants available for trial is inevitable at the ICC would, therefore, absolve the OTP from any accountability for its choices regarding the selection of cases, their content and presentation. As the face of the Court, the ICC-OTP should take into consideration not only the legal implications of its arguments, but also their broader social impact. In fact, it might be in the ICC’s institutional interests to do so, as this could enable it to improve its communication with local communities and the global audience more generally.
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