The prosecution of war criminals is not a novel concept. It can be traced all the way back to the ancient Greeks, who kept detailed accounts of such prosecutions.[1] Throughout the course of history, this body of international criminal law has undergone a significant metamorphosis by codifications such as the Hague Conventions and through the creation of customary law by tribunals like the ICTR and the ICTY. The fundamental disadvantage of this piece-meal approach to international criminal law, however, was the lack of a coherence in adjudicating crimes occurring during times of conflict. It soon became apparent that the ad hoc tribunals – such as the ICTY and ICTR – were insufficient due their circumscribed temporal, territorial, material, and personal jurisdiction.[2]
For this reason, the creation of the International Criminal Court ( “ICC”) with its body of law distinct from the customary international law was deemed to be essential. This does not mean that the International Criminal Court has unlimited jurisdiction, it simply goes to say that an institution like the ICC with more extensive jurisdiction is necessary to coherently and effectively adjudicate war crimes committed around the world. Since its establishment in 2002, the ICC has been developing its jurisprudence to effectively adjudicate in conflicts all around the world.
The delivery of the judgment in The Prosecutor v. Dominic Ongwen, on February 4, 2021, before Trial Chamber IX in the Hague, marked an important milestone as long-awaited answers to questions of law were provided. This case and its significance for ICC law will be discussed in the paragraphs to come. Before delving into the significance of the ICC judgement, however, it could prove useful give an insight into who Dominic Ongwen is, followed by an explanation of the facts leading up to The Prosecutor v. Dominic Ongwen.
Dominic Ongwen was abducted by the Lord’s Resistance Army (LRA) when he was somewhere between 9 to 14 years of age in Uganda. In the LRA he was trained as a child soldier.[3] This training consisted of committing various egregious acts including mutilating, murdering, and raping civilians. Ongwen followed superior orders with unprecedented diligence and loyalty. This resulted in him quickly moving through the ranks of LRA to become one of the main figures of the movement. Eventually, he secured a position as one of the commanders of the Sinai brigade.[4] Additionally, he became one of the right-hand men to Joseph Kony, the notorious leader of the LRA.
In December 2003, Uganda referred the conflict within its borders to the Prosecutor of the ICC. From this time on the ICC, acting under article 14 juncto art. 25 of the Rome Statute, was competent to adjudicate over the crimes committed in Northern Uganda by, among others, Ongwen. However, it was not until January 6, 2015 that the United States Special Forces, alongside the African Union Regional Task Force, captured Ongwen and placed him under ICC custody.[5]
The Ongwen trial started on December 6, 2016 and ended when the final verdict was rendered by presiding Judge Bertram Schmitt on February 4, 2021. Ongwen was found guilty on 61 of the alleged 70 counts of Crimes Against Humanity and War Crimes. The trial revolved around the central question of whether Ongwen was to be held fully accountable for the charges levelled against him or whether he was to be considered a victim of the LRA. As a result, the Rome Statute’s grounds for exclusion of criminal liability played an important role.
The ICC’s verdict is important for International Criminal Law for several reasons. First, the ICC answered the question of on whom the burden of proof order rests to prove mental incapacity in accordance with article 31 (1)(a) of the Rome Statute. Previously, the ICC had never ruled on mental incapacity as a ground for exclusion of criminal responsibility, and, therefore, the question of whether the burden of proof rested on the defense or the prosecution remained unanswered. The ICC confirmed in its judgment that, in line with article 66 (2) and (3) of the Rome Statute, the burden of proof rests upon the prosecuting party to prove beyond reasonable doubt that the material elements laid out in article 31 (1)(a) of the Rome Statute have been proven.[6] In so ruling, the ICC filled an important gap within its jurisprudence, forming a precedent for cases to come.
A second reason the Ongwen case before the ICC is important is because it substantially narrowed the definition of duress as a ground of exclusion of criminal liability. This predominantly affected the first material element that must be fulfilled to prove duress: namely, that there must be a threat of imminent death or bodily harm against a person. The ICC ruled, in line with art. 31(1)(d) of the Rome Statute, that duress as a ground for exclusion of criminal liability cannot be interpreted as providing blanket immunity to individuals forming part of a strict disciplinary regime who did not initially join voluntarily.[7] The court elaborated on this by stating that in this case, Mr. Ongwen went even further than was required of him, which evidenced that the circumstances were not beyond his control. Therefore, even though Ongwen was threatened, the ICC believed that his conduct evidenced that he was also intrinsically motivated rather than motivated by the imminent threat of death of bodily harm.[8]
Lastly, apart from the momentous importance in refining the grounds of exclusion of criminal liability within international criminal law, the ICC’s judgement proved significant because of its key role in providing relief to the roughly 4100 victims and their families whose lives have never been the same since they were confronted with the horrors of the LRA under the leadership of Joseph Kony and Dominic Ongwen.[9] Although a long way must still be tread and the wounds still remain fresh for the victims, recognition of this by means of the ICC judgement could prove to be the first step towards healing. Moreover, the judgment could also prove important in restoring the faith of states, like the United States, in the jurisdiction of the ICC.[10] This is important as the ICC ultimately relies on state cooperation, which is evidenced by the principle of complementarity worded in the preamble of the Rome Statute.
In conclusion, the ICC’s judgment shines as a beacon of hope resonating to the world that war crimes, crimes against humanity, crimes of aggression, and genocide will by no means be tolerated.
[1] William A Schabas, An Introduction to the International Criminal Court: (Cambridge University Press 2011) 1.
[2] Ibid. 12.
[3] Erin K. Baines, ‘Complex Political Perpetrators: Reflections on Dominic Ongwen’ (2009) 47 The Journal of Modern African Studies 163.
[4] The Open Society Initiative, ‘The Trial of Dominic Ongwen at the ICC: The Judgement’ February 2021.
[5] ‘Q&A: the LRA Commander Dominic Ongwen and the ICC’ (Human Rights Watch, 27 January 2021) <https://www.hrw.org/news/2021/01/27/qa-lra-commander-dominic-ongwen-and-icc#_How_did_the> accessed 11 February 2021.
[6] The Prosecutor v. Dominic Ongwen, par. 2455.
[7] Ibid. par 2669.
[8] Ibid. par 2582.
[9] Case Information Sheet: The Prosecutor v. Dominic Ongwen International Criminal Court, 4 February 2021)
[10] Ned Price, ‘ Welcoming the Verdict in the Case Against Dominic Ongwen for War Crimes and Crimes Against Humanity’ (US Department of State, 4 February 2021)
