Expressing what? The stigmatization of the defendant and the ICC’s institutional interests in the Ongwen case

Abstract The potential of international criminal trials to express the wrongfulness of mass atrocities and instil norms of appropriate behaviour within communities has been subject to a lively theoretical debate. This article makes an important empirical contribution by examining the limitations to the expressivist aspiration of international criminal justice in the context of the message communicated by the International Criminal Court’s Office of the Prosecutor (ICC-OTP) in the Ongwen case. A detailed analysis of the selection of charges, modes of liability, and the overall presentation of the Prosecutor’s arguments at trial suggests that the ICC-OTP’s limited capabilities to apprehend suspects and its dependency on state co-operation risk the excessive stigmatization of the few defendants available for trial for the purpose of demonstrating the Court’s capability of prosecuting notorious criminals. As the only apprehended commander from the Lord’s Resistance Army (LRA), Dominic Ongwen has been presented by the ICC-OTP as the ‘cause’ of crimes committed in Northern Uganda without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, the role of other actors in the conflict, or the significance of his own victimization as a child. Ongwen’s excessive stigmatization expressed the importance of the Ugandan investigation after a decade of showing no results. Yet, it also produced a simplistic narrative which failed to express the complexity of violence in Northern Uganda.


Introduction
In 2018, the ICC-OTP closed its arguments in one of its most notorious cases 1the 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. 2 The Prosecutor's case revealed a story of seemingly inhuman international criminal justiceselecting the suspects, the charges, and the scope of the cases. 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. 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. 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 14 and decides whether and how to present certain evidence and what questions to pose to witnesses. 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 victimperpetrator 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. 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. 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 sociopolitical environment on the Prosecutor's case; and Section 5 concludes. This article does not claim that Ongwen does not bear criminal responsibilitythis 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.

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. 18 Retributionpunishing the guilty according to their just dessertis among the most straightforward purposes of criminal law, 19 but balancing the wrongs of mass atrocities with punishment is said to be 'unthinkable' 20 as 'no punishment can fit the most horrendous international crimes'. 21 Further attempts have been made to justify international trials as contributors to the deterrence of mass atrocities. 22 However, the low prospects of being prosecuted by an international tribunal are considered unlikely to enter the rational calculations of individual actors. 23 Such obstacles have led an increasing number of scholars to consider a justification which appears especially fitting in the ICL context: the 'expressivist' 24 or 'symbolic' power of punishment. 25 From this perspective, international prosecutions strengthen the 'faith in the rule of law among the general public'. 26 This is said to occur by framing the judgments of international 18 I. Tallgren 24 Sander (2019), supra note 5; Drumbl (2007), supra note 5, at 173-4; Sloane, supra note 5, at 83-4; Stahn, supra note 5, at 279-80. tribunals as a symbol of the universal condemnation of mass atrocities that is relatable to the general audience. 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. 28 Hence, expressivism could be understood as a form of 'pre-deterrence', 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. 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. 31 But the communicative power of international punishment has not always been interpreted in 'benign terms'. 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'. 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. 34 Yet, criminological research has suggested that it does not take 'intrinsically evil people' to commit atrocious crimes, 35 reflecting on Hannah Arendt's early observations on the 'banality of evil'. 36 Mass atrocities have generally been explained with the combined effect of agencythe choice to act in a particular mannerand structural factorse.g., human beings' general predisposition to obedience and conformity with group norms, and the existence of harsh conditions of life. 37 Furthermore, it has been observed that during mass atrocities, individual persons seldom fit a particular category, such as 'victim', 'perpetrator', or 'bystander'. 38 Those roles are often 'accumulated' as individuals act in a different manner according to the fast-changing situation. 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. 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' 41 or 'victims'. 42 The focus on agency has also been argued to obscure the role of structural 27 Aksenova, supra note 6, at 485. 28 Akhavan, supra note 6, at 12-13; Damaška, supra note 5, at 345. 29 Aksenova, supra note 6, at 491. 30 Ambos (2013), supra note 20, at 72. 31 Aksenova, supra note 6, at 489. 32 Sander (2019), supra note 5, at 857. 33 Nouwen and Werner, supra note 13. See also L. Corrias and G. Gordon, 'Judging in the Name of Humanity: International Criminal Tribunals and the Representation of a Global Public', (2015) 13 JICJ 97; I. Tallgren factors, such as colonialism, neo-liberal economic policies, and global capitalism in enabling the socio-economic conditions that are considered conducive to mass atrocities. 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. 44 It has often been argued that lower-level perpetrators should not be deemed as blameworthy as leadership figures, 45 or the 'big fish' in international criminal justice. 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. 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'. 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. 49 While the agency of victim-perpetrators is not denied, it has been described as a form of 'constrained' agencyvictim-perpetrators are said to be choosing from a set of options constrained by their former victimization and/or ongoing vulnerability to victimization. 50 It is argued that, while such persons could bear criminal responsibility, their special personal circumstances could mitigate the degree of punishment 51 and prevent the imposition of the most 'radical' degree of stigma. 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, 53 and avoid the 'easy' stereotyping of all defendants as 'enemies of mankind'. 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'. 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'. 56 But the actual existence of such a community has been questioned. 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. 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. 59 In fact, 'deep disagreement' is said to exist internationally regarding  Sloane, supra note 5, at 65. 49 Stolk, supra note 13, at 690-1; Bikundo, supra note 13, at 30. 50 Anderson, supra note 38, at 144. 51 Sloane, supra note 5, at 87. 52 Stolk, supra note 45, at 154. 53 Drumbl, supra note 7, at 243-4. 54 Stolk, supra note 45, at 155. 55 Sloane, supra note 5, at 48. Corrias and Gordon, supra note 33, at 104-8; Tallgren (2015), supra note 33, at 138. 59 Corrias and Gordon, ibid., at 108. the appropriateness of international trials as means to address atrocities. 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'. 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. 62 Another logical recipients of the messages communicated by international trials appear to be the communities afflicted by violence. 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. 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. 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. 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. 67 This would involve departure from the uncritical application of Western norms or ideals 68 and demonstrating greater sensitivity to the plurality of local cultures and laws. 69 ICL's failure to accommodate non-Western norms of evidence and procedure has been described as 'far from inevitable', 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. 'pinnacle of the institutionalization and universalization' of ICL enforcement. 72 Since its creation, the permanent international penal court has aspired to be 'about much more than just punishing the perpetrators'. 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. 74 After a decade, the Court had served just one judgment, despite having spent nearly one billion US dollars. 75 The ICC-OTP recently experienced several significant defeats, including the acquittals of Congolese political figure Jean-Pierre Bemba Gombo 76 and the former Ivoirian president Laurent Gbagbo. 77 While, in domestic settings, acquittals should still be perceived as a sign of a functioning court, 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. 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' 80 given the lack of state co-operation and the Prosecutor's limited resources. 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'. 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'. 83 NGOs, which had been among the most ardent advocates of the Court's establishment, 84 perceived the Court's inability to deliver results in the face of increasing demands for international justice as a threat to its legitimacy. 85  ICC officials have recognized that expectations of what the Court could achieve should be 'managed'. 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 willnowhave 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 : : : 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. 88 Recognizing the ICC suspects as 'enemies of mankind' increases the Court's chances of obtaining international co-operation in investigations and arrests. 89 Consequently, the small number of persons available for international trials could result in charging any defendant with as much destruction as possible. 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. 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. 92 It has been observed that the ICC is 'entirely dependent' on state co-operation to conduct investigations and apprehend suspects. 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, 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 prosecutionagainst the 'friends of the international community'the warring parties whose political and military interests align  Stolk, supra note 13, at 691 (emphasis added). 89 Nouwen and Werner, supra note 13, at 963. The Bemba Appeals Chamber found by majority that the accused's material ability to control his subordinates as a 'remote commander' had not been established beyond reasonable doubt. Bemba Decision, supra note 76, paras. 171, 191-2. In Gbagbo the Prosecutor failed to establish that the former president had contributed to the crimes committed by his alleged supporters. Gbagbo and Blé Goudé Decision, supra note 77, at 3, lines 3-17. 92 Damaška, supra note 5, at 360-1. with the ICC-OTP's investigation. 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 Ongwenand 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 outin 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. 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. 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. 97 In 2005, the Court issued arrest warrants against five LRA commanders: Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen, 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 95 Nouwen and Werner, ibid. 96 Nouwen, supra note 94, at 114. 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, 99 it did not start proceedings against the government or the UPDF, stressing that the LRA's crimes were of higher gravity. 100 Yet, the government's policy of forcibly relocating the Acholi population into camps for internally displaced persons (IDPs) has had devastating consequences 101 and UPDF abuses have been well documented. 102 The decision to prosecute only the LRA raised concerns over politicizing justice. 103 While the OTP seemed to be following a pragmatic 'sequenced' approachprosecuting firstly the cases made 'feasible' by the availability of government co-operation and then proceeding with the more challengingto-investigate cases 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 2006 105 and intensified on a regional level after the Court issued arrest warrants against former Sudanese President Al-Bashir 106 and opened a proprio motu investigation in Kenya. 107 Despite the arrest warrants, the GoU hosted Al-Bashir twice, 108 and Uganda's President even stated that he no longer supported the ICC. 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. 110 The African Union increasingly challenged the ICC 111 and set out to create its own African Criminal Court. 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, 113 and in 2017 Burundi became the first country to leave the ICC. 114 99 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, 115 proved unpopular with NGOs as it was seen to fail to fully reflect victims' suffering. 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, 117 Otti was considered dead, 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. 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. 120 Ugandan agencies helped the prosecution to break the codes used by the LRA and identify commanders by their voices. 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.

The charges against Ongwen
The 2005 LRA arrest warrants included 33 counts of crimes 122 in connection to six LRA attacks. 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, Kony 124 and Otti were charged with all counts in relation to all six attacks. 125 Odhiambo was charged with nine counts 126 and Lukwiya with three counts. 127 Ongwen's arrest warrant included seven counts of crimes in relation to one attack onlythat on the Lukodi IDP Camp. 128 He was mentioned last when then Prosecutor Moreno-Ocampo discussed the case 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, 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. 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. 132 The final DCC included 70 133the 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. 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, 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 Lukodi 136 and allegations of recruiting and using child soldiers. 137 The Prosecutor held further that Ongwen had personally abused women in his household 138 and distributed women to other LRA fighters. 139 124 Ibid., para. 14. 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), 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. 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. 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. 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. 144 In Ongwen, the ICC judges agreed with the Prosecutor that forced marriage was a distinct crime, 145 which was perceived as an achievement for gender justice and earned NGOs' valuable approval. 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 wivesto abstract categories such as 'enslavement', 'sexual slavery', and 'forced marriage', the difference between which would be probably hard to discern by a nonspecialist 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. 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. 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 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. 149 New evidence could arise over time that supports adding charges, as specified in Ongwen. 150 Consequently, the analysis of Ongwen supports one of the main theoretical propositions made by the scholarship on expressivismthat the technical nature of the Western legal tradition poses an important limitation to the didactive potential of international trials. 151

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. 152 The Nuremberg and Tokyo tribunals did not distinguish between principals and accessories. 153 The UN tribunals were criticized for insufficiently differentiating between the criminal responsibility of the participants within a 'joint common enterprise'. 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. 155 The ICC considers principals those who have decisive influence on the crime's commission. 156 The person acting 'through another' person, the 'indirect perpetrator', is considered a principal perpetrator even if she is not the physical perpetrator. 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. 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'. 159 The physical perpetrator thus becomes 'a mere gear' in a machine controlled by the indirect perpetratorthe mastermind. 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, 161 dehumanizes both the physical perpetratorswho appear almost as 'soulless humans' 162and 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 149 Sander, supra note 64, at 599. 150 Transcript 26, supra note 3, at 41, line 22. 151 Sander, supra note 42, at 1017. Van Sliedgregt, supra note 71, at 71-2. 157 Ibid., at 63-4. 158 Katanga and Ngudjolo Confirmation, supra note 147, para. 498. 159 Ibid., para. 512. 160 Ibid., para. 515. accessory liability. 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. 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, 165 kill people, 166 burn houses, 167 abduct and beat women, 168 and conscript children into the Sinia brigade. 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) 170 in connection to 59 charges. 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. 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'. 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.' 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.

176
Kony Arrest Warrant, supra note 123, para. 8. 177 Lukwiya Arrest Warrant, supra note 127, para. 8. 178 Odhiambo Arrest Warrant, supra note 126, para. 9. 179 Ongwen Arrest Warrant, supra note 128, para. 8. 180 Investigation, supra note 175, at 8. as a battalion commander. 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'. 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. 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', 184 Ongwen had enjoyed full 'discretion about how to carry out the attacks that his troops conducted'. 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. 186 Many LRA members believed that Kony could read their minds and anticipate their attempts to escape. 187 Ongwen had himself been abducted by the LRA as a child 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' 189 and the original author of the orders to commit crimes, 190 which were then 'relayed' down the chain of command by 'senior LRA commanders'. 191 The ICC-OTP further noted that LRA commanders, including Ongwen, occasionally reported incorrectly the results of their attacks 'to avoid Kony's wrath' 192 and that Ongwen had to request permission from Kony to conduct attacks. 193 Nevertheless, the Prosecutor maintained that Ongwen had also exerted power over the crimes' commission, which justified charging him as a principal perpetrator, 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. 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 181 Transcript 26, supra note 3, at 56, lines 15-17. 182 Transcript 26, ibid., at 17, lines 4-6. 183 perpetrator Ongwen had 'cause[d]' his subordinates to commit the crimes. 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. 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, 198 such as the NRA abuses in Namokora 199 and in Burcoro. 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. 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. 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, 203 and resonated with the long history of portraying African warlords as 'savages'. 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'. 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 perpetra-196 DCC, supra note 2, para. 13 (emphasis added). 197 tor, 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. 207 It has been acknowledged that Organisationsherrschaft fails to reflect on different degrees of control over the crime, 208 which has important implications for defining the criminal responsibility of midlevel 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. 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. 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.

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. 211 Not only did Ongwen reject the status of a perpetrator, but he considered himself an LRA victim. 212 As the defendant did not fit the traditional 'perpetrator' concept, Ongwen challenged ICL's 'black-and-white' concepts of guilt and innocence. 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. 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. 215 The defence's argument that Ongwen had acted under duress while at the LRA, 216 subjected to systematic indoctrination and threats made by other persons, including by 206 DCC, supra note 2, paras. 9-13. Defence Brief, supra note 188, paras. 1-2. 212 Transcript 26, supra note 3, at 17, lines 12-13. 213 Branch, supra note 7, at 34; Drumbl, supra note 7, at 218. 214 See Stolk, supra note 45, at 154. 215 Transcript 26, supra note 3, at 37 lines 1-10; Ongwen Confirmation, supra note 130, para. 150. 216 Defence Brief, supra note 188, paras. 50-57.
Kony, 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, 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, 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'. 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 221 and argued that he initiated operations 222 and abused women 'enthusiastically'. 223 The Prosecutor underlined that, despite his own victimization, Ongwen used child soldiers. One witness testified that when he met the accused in 2006, 224 Ongwen refused to release the children escorting him. Ongwen allegedly responded: 'You call them children. I call them my soldiers.' 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' 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'. 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 217 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. 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'. 229 However, acknowledging the LRA's complicated political relationship with civilians would have disrupted the narrative of the government's innocence. 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. 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.

Conclusions
This article problematized the expressivist aspirations of international criminal justicea topic of lively theoretical debatefrom 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'. 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'. 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 228 might reduce the stigma of being accused of international crimes, 234 in practice it has been the other way aroundthe 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 stigmatizationfirstly, 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 responsibilityunless 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 cooperation of some governmentsthat 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, 235 and whether Ongwen should have been tried in Uganda instead. 236 Scholarly works have also expressed concerns with the 234 Stolk, supra note 45, at 154. 235 Drumbl, supra note 7, at 240; Owor Ogora, Just or Unjust, supra note 183. inability of the Prosecutor's narrative to engage in a meaningful way with Ongwen's victimperpetrator identity. 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 ferociousa 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. 238 The Ongwen case further reaffirms the image of the 'enemy of mankind' as non-white, male, strong, gruesome, and particularly barbaric 239an 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 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)'. 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. 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. 237 Drumbl, supra note 7; Branch, supra note 7; Bouwknegt and Nistor, supra note 40, at 92-3. 238 Tallgren, supra note 18, at 593-4; Bikundo, supra note 13, at 29. 239 Schwöbel-Patel, supra note 43, at 256-7; Mutua, supra note 204.