Case Comment: The Prosecutor v. Dominic Ongwen (Ongwen Case)

Source: ICC

On Feb. 2021 the chamber of the International Criminal Court held the Dominic Ongwen for count of 61 crimes against humans and wars crimes and therefore, sentenced Dominic 25 year of imprisonment. This judgement had diverging and conflicting views around the jurists. This article talks about the incompetency of International Criminal Court in regarding to how the ICC neglected the root cause if the crimes that happened in the case of Dominic.

Ongwen Case
The Prosecutor v. Dominic Ongwen
(ICC-02/04-01/15)

INTRODUCTION

Lord’s Resistance Army (LRA) was a radical Christian militant group which was founded by Joseph Kony, a self – proclaimed prophet. This group was mainly formed to establish Christianism in the state of Uganda. The one of the main aims of the LRA was to incorporate the 10 commandments of the Christianity in the constitution of Uganda. The resistant group of LRA was in a continuous fight with the former president of Uganda Yoweri Museveni. The LRA committed crimes including mass killing, rape, torture, abduction etc. The LRA was also massively involved in the abduction of children and turning them into the child soldiers.

Diminic Ongwen was an ex – child soldier and the former commander of the Lord’s Resistance Army (LRA). Ongwen was about 9 years old when he was abducted by the LRA in Northern Uganda. He was abused for a long period of time and was forced to see the LRA persons ruthlessly taking life of the innocent civilians. Ongwen was trained by the most senior commanders of the LRA which in turn made him one of the most ruthless leaders. Under the command of the Ongwen, the LRA had executed many attacks including one of the most brutal attacks in the history of Uganda, taking the example of Makombo Massacre which was carried out by the LRA under the command of Ongwen in 2009. The militant group took the lives of more than 350 civilians, and around 250 civilians (80-100 children) were kidnapped and abducted. In 2015, Ongwen was trapped by the rebels of the Central African Republic, and was handed over to the US Army later on.

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Relation between The Child – Soldiers and The Mental Health

It is not a difficult task to draw the connection between the child soldiers and the mental illness they face upon. It is hard to disagree that a child soldiers enforced in a rebel armed groups experiences several traumas due to which they become the victim of mental illness like depression and post-traumatic stress disorder (PTSD) etc. In a research paper titled The Psychological Impact of Child Soldiering, it was stated that the children who are recruited in the rebel group as a child soldier are exposed to the continuous violence. These children have no choice but to live in that devastating condition and this becomes the reality and meaning of life to them. This continuous exposure of violence leads to traumatic stress in the children at a young age due to which they become victim of the mental diseases. Moreover, Dr Schauer in her paper also submitted that this long- term experience of continuous violence interferes and hinders the mental development of the children. Therefore, we can conclude that the child soldiers suffer from several mental diseases and the adult actions of these child soldiers are based on the traumatic ineradicable incidences

International Criminal Law on Mental Health

According to the Article 31 (1)(a) of the ICC statute, it is stated that is a person suffers from a mental disease or defect that destroys his capacity to differentiate between the unlawfulness or nature of his or her conduct then in that case the person would not be liable for his criminal offences.

Even till now the International Criminal Court is silent on the procedure for the admissibility of the psychiatric examinations as evidence. There are no guidelines regarding the methods which have to be followed by the psychiatrics while examining the defendant for the mental condition. The law is silent on the guidelines through which the reliability of the psychiatric examinations can be checked. Moreover, the law is also silent on the aspect of burden of proof regarding the mental condition of the defendant. The law did not determine how either of the party can examine the defendant. There are no guidelines through which the examinations of the psychiatric can be evaluated, so to establish a legit conclusion. 

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Analysis of the Case

In the case of Prosecutor v Ongwen, the defendant, Ongwen was himself a victim of child soldier who was abducted by the LRA and by the period of time he became the commander of that group. The on 4th February, 2021 ICC passed a long-awaited judgement in which they held the Ongwen liable for 61 counts of crimes against humanity, war crimes, including murder, torture, slavery, forced child soldiers, and, sexual and gender-based crimes. In the history of ICC, it was a first case in which the defendant was charged with the same crimes which was done against him.

This judgement of the ICC created some polarizing views. Many jurists and the Human Right Activist criticised this judgement. These jurists and activist have a totally different point of view. They saw Ongwen as a helpless person, who was abducted when he was child, was taught to commit crimes, was abused and had faced a lot of outrageous acts.

In the judgement passed by the ICC, the judges drew a line between the past traumatic experience of the defendant and the present crimes of the defendant. The judges neglected the connection between the past victimisation of the defendant and the crimes he committed thereafter in his adulthood. The judges stated that “ Ongwen experienced much suffering in his childhood and youth” but the crimes committed by Dominic Ongwen were as a fully responsible adult and as a commander of the LRA.

Moreover, the court rejected the appeal of the defendant that the Ongwen was suffering from mental disorder while he was the commander of LRA. The court held that

The overwhelming evidence paints a picture of Dominic Ongwen as a person in full possession of his mental abilities. He is described by his subordinates as an extremely capable fighter and commander whom they loved to follow. He planned his attacks carefully and assessed the risks together with his officers. He was repeatedly lauded by other commanders, including Joseph Kony, for his ‘good work’”.

The court held that since the Ongwen has planned the attacks therefore he was not mentally ill and therefore, would not be granted protection under the Article 31(1)(a) of the ICC statute. The court in this case totally marginalized the other perspective. The judges neglected the fact that the Ongwen’s present actions were the effect of his traumatic childhood he suffered while serving as a child soldier in LRA. As in turn, The International Criminal Court sentenced the Ongwen with 25 years of imprisonment.

The judgement was silent on the fact that while seeing the traumatic upbringing of the Ongwen, why the court didn’t include the restorative aspect with the sentence. According to the Rule 145 if the Rules of Procedure it is clearly stated that, the judges should consider the background and circumstances of the convicted person, including their education and social-economic condition and background.

The judges of the ICC did not consider the complexities present in the Ongwen case. The court failed to consider the fact that Ongwen himself was a victim of all these crimes and if he was rescued at an early stage, he himself would be seeking justice. The judges of the ICC were not impartial while evaluating the evidences of both the sides and didn’t give them equal weightage. The case of Dominic was not a normal case and, in this case, he needed more of counselling than that of 25 years of imprisonment.

WHAT SHOULD HAVE DONE

Prosecuting Ongwen in the International Criminal Court was not at par with international criminal justice standard. Some are of the view that the local courts of the Uganda are handling this issue more sensibly. The courts of Uganda have a contrasting point of view, than that of the ICC. The local courts of Uganda are seeing the returned LRA fighters as a victim and not of totally a culprit. The courts of Uganda have opted modernised way to tackle this sensitive issue by providing the immunity to the former fighters of the LRA. The judges were of the view that “The victims have clearly stressed that they are concerned with justice, with seeing their communities rebuilt and receiving reparations, not with a prison sentence in the Hague,”

CONCLUSION

The case of Dominic Ongwen depicts that there is an utmost need for redefining the procedural and evidential laws that are currently followed by the ICC. In the Ongwen’s case, the International Criminal Court completely neglected the fact that actions in the adulthood are somehow majorly dependent on the childhood learnings. The court failed to take due care while handling the Ongwen’s case. Rather than sentencing 25 years of imprisonment the court could have been gone towards the side of rehabilitation. Rehabilitating the defendant in this case could have helped Ongwen to overcome his mental situation and traumas. Putting him behind the bars for 25 years would make the situation worse and would not be beneficial for anyone. Moreover, the statutes of ICC should be made clearer and more precise about the admissibility of the experts and the procedure and methods that has to be followed while examining the defendant for the mental condition.

Author

Abhinav Kumar is student of B.A.LL.B (Hons.) at Vivekananda’s Institute of Professional Studies, GGSIPU,

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