Where the Roads Meet: The Relationship between International Criminal Law and International Environmental Law

Posted on April 7, 2021 by Mark Kersten

David Krott joins JiC for this guest post on the nexus between international criminal law and international environmental law. David is as a research assistant at the FH Aachen (Germany) and am PhD candidate at the Vrije Universiteit Brussels, specialising in international environmental criminal law.

Climate change: New UK law to curb deforestation in supply chains - BBC News
(Photo: BBC)

In the light of the growing threat of climate change, a rapidly burning rainforest in South America and South-East Asia, polluted rivers in the Arctic, and other environmental and ecological crises, international environmental law is searching for answers to condemn global environmental harm. Some of those answers might lie within the sphere of international criminal law.

The International Criminal Court (ICC) does not have a distinct legal mandate to look into international environmental harmful conducts. Nevertheless, the pressure to codify the connections between the environment and criminal conduct is growing. This post discusses the nexus between international criminal law and international environmental law, as well as the role that activism and institutions are playing in the developing interplay between these two regimes.

Why the relationship between international criminal law and international environmental law matters

Even though the areas of international criminal law and international environmental law are two distinct areas of international law, they do present close connections. Serious harm to the environment constituted by human action may result in “potential criminal conduct”, such as illegal logging or the illegal disposal of hazardous waste. The resulting destruction of local ecosystems can have major global consequences. This can be outlined by the deforestation of the world’s rainforests in Brazil and several countries across South-East Asia. This not only destroys one of the most vivid ecosystems on the planet but contributes to rising temperatures on a global level. Furthermore, the slash-and-burn method used causes health issues, not only for local inhabitants but also for citizens of neighbouring states. 

The earth is constituted of a global net of interrelated ecosystems. Widespread environmental harm or the degradation of ecosystems is inherently transboundary/global. The most vivid example of this interconnectedness of the world’s ecosystems is climate change. The connectivity can be described with the following example: The emission of industrial CO2 in Europe leads to thawing permafrost in the Arctic. This in turn accelerates the release of climate gases into the atmosphere fuelling the melting of the polar ice caps, which results in the potential submersion of whole island nations in the Pacific. The planet’s natural systems are brought out of balance by human activity. These activities might not be criminal per se, but a number of the behaviours in question do bear the potential to be called a crime and even an international crime. An issue here is that the terms of ecocide or international environmental crimes do not have a universally agreed-upon definition. They therefore lack legal consensus. International environmental crimes are more of a collective term for transboundary environmental harm in general (e.g. illegal trade in wildlife, illegal logging, waste handling abuses, whaling or extraction of conflict minerals). 

While a commonly agreed international framework governing this delicate area of international criminality remains elusive and there is no distinct “Convention on International Environmental Crime, a growing number of multilateral environmental agreements (MEAs) have come to life that are of relevance to thinking about the relationship between international criminal law and environmental law. Some of the existing MEAs refer to the connection between criminal actions and the environment. For example, the “Basel Convention on the control of transboundary movements of hazardous waste” describes in Article 9 certain transboundary movement of hazardous wastes as “illegal”. The implementation and enforcement of this and similar “criminal” provisions are thus left to the signing parties. Sufficient international oversight in this regard is missing.

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Posted in Ecocide, Environment, Guest Posts, International Criminal Court (ICC), International Criminal Justice | Tagged | 3 Comments

The United Nations and Sri Lanka: A Human Rights Saga

Posted on March 23, 2021 by Mark Kersten

Thamil Venthan Ananthavinayagan joins JiC for this guest post on the United Nations, Human Rights, and Sri Lanka. Thamil, LLM. (Maastricht University), PhD (NUI Galway), is the incoming Teaching Associate in IHRL at University of Nottingham. Prior to this lectureship at GCD, he worked as a Fellow and research assistant to the Irish Centre for Human Rights in Galway, Ireland.

Soldiers from the Sri Lanka army stand next to anti-aircraft gun (Photo: DW)

The United Nations and Sri Lanka: if this was an international novel, it would be one with many chapters of deceit and mistrust, but also elating seasons of hope and confidence. The island nation joined the UN in 1955. I have written extensively on Sri Lanka and the UN, culminating in a book on the international human rights engagement of the United Nations with Sri Lanka. The engagement with its Charter-based and treaty-based bodies had been long and extensive. In the end, I concluded that the human rights corpus has been used by the UN and Western powers as a tool for the furtherance of a neo-colonial agenda, setting the stage for geopolitical influence and neoliberal world order in the Global South. Meanwhile, the (Sinhala) Third World elite of the country had conveniently employed international human rights law as a strategic asset and diplomatic bargaining tool.

Sri Lanka has willingly engaged in this human rights game: the lifting of autocratic policies in the 1970s came with the opening of the domestic market to foreign investors in order to align them with the requirements of the International Monetary Fund and World Bank. Human rights advocacy was tethered to neoliberal values and geopolitical state interests. To this end, many actors in the region and the Tamil diaspora in the Western countries have instrumentalised the suffering of the war victims for political gain. 

Sri Lanka will be always entangled in its colonial and postcolonial past, which contributes to the contradictions of its present and future. This article discusses the role of the UN and its manipulation by powerful actors to influence the political happenings on the island. I explain the driving narratives for non-governmental organisations, foreign and native, to intervene in Sri Lanka. Finally, this post will sum up the shallow human rights discourse in Sri Lanka, while proposing ways forward in achieving global justice from the distinct viewpoint Third World Approaches to International Law (TWAIL). 

Human rights is the instrument of the hegemon

Sri Lanka’s lack of retrospective insight on accountability for the war crimes is once again being tabled before the UN Human Rights Council. The lack of post-war justice is striking. Yet it is part of a larger strategy of the island nation when it engages with the international institutions. Sri Lanka is a post-war, but surely not post-conflict, country. 

In its January report  on Sri Lanka, the UN High Commissioner for Human Rights wrote that: 

The Human Rights Council therefore is – once again – at a critical turning point in its engagement with Sri Lanka. Twice before, the Council has leant its support to domestic accountability and reconciliation initiatives, culminating in resolution 30/1.  The Government has now demonstrated its inability and unwillingness to pursue a meaningful path towards accountability for international crimes and serious human rights violations, and signalled instead a fundamentally different approach which focusses on reparation and development, but threatens to deny victims their rights to truth and justice and further entrench impunity.”

Once again, the UN has attempted to steer the current Sri Lankan government in its ideological outlook towards accountability for human rights abuses.  It is at this juncture of international human rights advocacy that the Tamil Tiger offshoots and their supporters are using Western media, Western institutions, research outlets and their apparatus’ for the furtherance of their own politics. The utilisation of liberal and cosmopolitan normative frameworkshave helped them to generate support from the Western hemisphere. Against this backdrop, the latest draft resolutiontabled before the UN Human Rights Council is yet again being spearheaded by Western nations. The aim of this resolution is to recommit the Sri Lankan government to transitional justice, promotion of civil and political rights, a new constitution and an international accountability mechanism: all core demands from the Report of the United Nations High Commissioner for Human Rights in 2015._The UN is the playfield between Western powers and their allies and China and its allies for geopolitical and economic bargaining: it was never about human rights or the plight of the marginalised communities on the ground. The victims and marginalised are robbed of their agency and their subaltern voices are expropriated: human rights advocacy in light of post-war justice was always about geopolitics, trade and militaristic securitisation of the Indian Ocean. 

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Posted in Guest Posts, Human Rights, Sri Lanka | 2 Comments

Arenas of Interaction: The Relationship between International Criminal Law and International Human Rights Law

Posted on March 17, 2021 by Mark Kersten

The following is a guest post by Emily Tsui. Emily is a Juris Doctor/ Master of Global Affairs candidate at the University of Toronto. The following is the author’s reflection of her experience at the 2021 Online Winter Courses of the Hague Academy of International Law. This blogpost and the author’s attendance at the Hague Academy are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

In the International Criminal Court’s (ICC) recent and lengthy trial judgment in the case of Dominic Ongwen, the Trial Chamber made several references to the jurisprudence of human rights courts, instruments, and documents. These references included 12 citations to the European Court of Human Rights (ECtHR); 14 citations to the Inter-American Court of Human Rights (IACtHR); several citations to instruments such as the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Convention on Consent to Marriage; and multiple citations to various reports by the United Nations (UN) High Commissioner for Human Rights. The references highlight one way of how the ICC engages with human rights law in its work in adjudicating international criminal cases. The following post discusses why the relationship between international criminal law and international human rights law matter, and the crucial role that human rights activists and institutions have in developing this relationship. 

Why the relationship between international criminal law and international human rights law matters

International criminal law and international human rights law are distinct but related branches of law. As the International Law Commission’s (ILC) Report on Fragmentation noted, international human rights law aims to “protect the interests of individuals”, while international criminal law “gives legal expression to the fight against impunity.” As the ILC observes, these distinct branches of law emerge out of the practice needs of specialization, rather the intentional creation of distinct regimes. These two fields are deeply linked in substance. For example, serious human rights violations may constitute crimes against humanity under international criminal law. As such, it is logical that interactions between these two fields of law occur.

Various courts and tribunals have furthered the link between international human rights law and international criminal law, which helps to create a coherent body of law across different international forums to bring justice to individuals whose rights have been violated. At the ICC, the relationship between the two fields is given effect under Article 21(3) of the Rome Statute, which allows the ICC to consider “internationally recognised human rights.” Article 21(3) is considered a welcome provision that allows for the interaction of these two regimes by formally permitting the interaction between the two fields of law. 

As noted above, the trial judgment of Dominic Ongwen made reference to decisions of several international courts and tribunals, including the jurisprudence of the ECtHR, IACtHR, and the African Commission of Human Rights in its discussion of what constitutes torture (par. 2701). These references help the Trial Chamber to show that there is a broad consensus in international courts that the severity of torture may be met by a single act or by a combination of acts reached as a whole. This practice of international criminal courts and tribunals in referencing cases of human rights tribunals is not new to Dominic Ongwen’s case, but rather is a long-standing practice. Institutions like the International Criminal Tribunal for the Former Yugoslavia (ICTY) have long used human rights law in its jurisprudence. 

Under international human rights law, the IACtHR cross-references the jurisprudence of the ICTY and the Special Court for Sierra Leone. For example, in Almonacid-Arellano et al. v. Chile, the IACtHR referenced the ICTY’s decision in Prosecutor v. Tadic, among others, to conclude that “a single act of murder committed as part of a widespread or systematic attack against civilians is sufficient for the configuration of a crime against humanity.” The result of this system of cross-referencing between courts is that perpetrators of crime cannot escape accountability depending on the forum. It also means that international criminal law is available in a larger number of forums as it applies to human rights courts and tribunals.

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Posted in Guest Posts, Human Rights, International Criminal Court (ICC), International Criminal Justice | 2 Comments

Canada’s Pursuit of Syria over Torture May be Symbolic. But Here’s Why It Matters

Posted on March 11, 2021 by Mark Kersten
(Image:  Amnesty International / Mohamad Hamdoun)

Last month marked the tenth anniversary of the brutal civil war in Syria. The number of atrocities committed over that span is bewildering. In all probability, every single human rights violation and international crime enshrined in international law has been perpetrated in Syria during the last decade, most repeatedly. Yet ten years on, accountability for those atrocities has been minimal, an embarrassing blemish on the reputation of all states that stand for international justice. Canada’s decision to join an effort to bring Syria to the International Court of Justice (ICJ) over human rights violations and torture won’t change that. But it is an important decision at a crucial juncture for Syria.

On 4 March, the Canadian government announced that it “has requested formal negotiations, under the United Nations Convention Against Torture, to hold Syria accountable for the countless human rights violations it has inflicted on the Syrian people since 2011.” What this means, in short, is that Canada is joining a bold initiative by The Netherlands to eventually bring Syria before the ICJ over the regime of Bashar al-Assad’s wanton programme of systematic torture and atrocity.

What this does not mean is that any Syrian perpetrator will find themselves hauled before a judge to answer for war crimes, crimes against humanity, or genocide. Canada’s move may end up being largely symbolic. But symbols matter, and right now keeping faith that justice for atrocities in Syria alive is crucial. So too is ensuring that Syria’s government remains a pariah.

An uncomfortable truth for advocates of human dignity and rights is that Assad has effectively won the war in Syria. There will no doubt continue to be intermittent hostilities. But the dream of a democratic Syria without Assad at the helm has largely been quashed – at least for now. A leader with comparable blood on his hands to any dictator or despot in human history is safe, for the time being, in his palaces. And he has friends working for him. 

Right now, Russian President Vladimir Putin is working closely with counterparts in Syria to rehabilitate Assad’s reputation. To think that that is impossible is sadly naïve. It’s also potentially dangerous.

Take Libya, for example. Few heads of state have been as castigated as Libya’s Muammar Gaddafi in the 1980s and 1990s. The “mad man” of the Middle East was despised due to his sponsorship of terrorist organizations abroad and his repressive rule at home. 

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Posted in Canada, International Court of Justice (ICJ), Syria, The Netherlands, Torture | 1 Comment

Polite Hypocrisy? The Rocky Road Ahead for Biden and the ICC

Posted on March 5, 2021 by Mark Kersten
Joe Biden to make third run for White House

If you listen closely, you might just hear a collective sigh of relief from advocates of international justice and staff at war crimes tribunals.

Finally, the Trump administration is gone, and its vicious attacks on the International Criminal Court (ICC) are over. But before popping the champagne, it is worth asking: how will the new administration of President Joe Biden approach the ICC?

All signs point towards a return to piecemeal engagement, where Washington uses the Court when it suits its interests and undermines it when it does not. Biden has said the U.S. is “back”. But on international justice, there’s a need to be different – and better.

A tumultuous relationship

The relationship between the US and the Hague-based Court has always been tumultuous. While the US has never been a member of the ICC, ever since the adoption of the Statute of the Court (Rome Statute) in 1998, every American administration has affected the Court and also been affected by it.

President Bill Clinton’s administration participated in the negotiations that led to the creation of the court, and influenced its eventual jurisdiction. But it also had serious reservations about the emergence of an independent court that Washington cannot control through the United Nations Security Council. Clinton signed the Rome Statute in 2000, but did not send it to Senate to be ratified.

When George W Bush came to power, he immediately embarked on a hostile campaign against the Court. He officially renounced the Rome Statute, citing fears that the Court may unfairly prosecute American citizens for “political reasons”. He pressured governments around the world to enter into bilateral agreements that required them not to surrender US nationals to the ICC. He also signed into law the American Service Members’ Protection Act, which legally prohibited several forms of cooperation between Washington and the ICC, and authorised the US President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. This authorisation, which meant Washington could use military force against the Court, led the law to be nicknamed “the Hague invasion act”.

The US attitude towards the ICC softened during the administration’s second term, when Bush realised that the Court could actually serve American interests in places where US nationals are unlikely to be the target of prosecution, such as Africa. As a result, the Bush administration did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005.

When the Obama administration took over, it stated its intent to “positively engage” with the Court. Indeed, Washington’s rhetoric towards the ICC improved significantly under Obama’s leadership, and American diplomats started attending ICC conferences and cooperating with the Court. The administration, however, made clear that this cooperative attitude has its limits, and Washington would only support ICC investigations and prosecutions that also serve American interests.

During the Obama years, American cooperation was invaluable for the Court. By sharing evidence and ensuring that the Court’s warrants are enforced, Washington helped the ICC get people into the dock and successfully complete several investigations.

But the Obama administration’s partial engagement with the Court also worried many who felt that it promoted selective justice. Indeed, during this period the US had more of an influence on the ICC – and more of the Court’s attention – than any of the states that actually joined the institution. As a result, crimes committed by the US itself and its allies continued to remain beyond the Court’s reach, while those that lacked US support were readily investigated by ICC.

Then came Donald Trump. The Trump administration was hostile towards the Court from the very beginning. Trump’s Secretary of State, Mike Pompeo, regularly derided the Court as a threat to the US that needs to be isolated and even publicly referred to it as a “kangaroo court”. His one time National Security Adviser, John Bolton, declared in a speech to the Federalist Society that the court is “dead” to Washington. His so-called Ambassador at Large for Global Criminal Justice, Morse Tan, meanwhile, openly stated that under Trump’s leadership “the US would seek the dissolution of the court.”

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Posted in Donald Trump, International Criminal Court (ICC), International Criminal Justice, United States | Tagged | 1 Comment

Can Colombia’s Special Jurisdiction for Peace be considered slow? A preliminary comparative study of trials for international crimes

Posted on March 3, 2021 by Mark Kersten

Shoshana Levy is a lawyer in International Criminal Law and International Humanitarian law, expert on transitional justice and on Colombia’s transition to peace. The opinions expressed in this article are solely her own.

SJP President Eduardo Cifuentes, Former SJP President Patricia Linares, ICC Prosecutor Fatou Bensouda and ICC Deputy Prosecutor, James Stewart. (Photo: ICC website)

The Special Jurisdiction for Peace (SJP), Colombia’s transitional tribunal was set up to prosecute the perpetrators of crimes committed during the armed conflict between the FARC-EP guerilla and the Colombian government. Its slow pace is raising skepticism among some sectors of Colombian society. Almost three years after its official creation, the SJP has not yet handed down its first sentence. In a deeply polarized sociopolitical context, Colombian President Iván Duque has repeatedly expressed ardent criticism regarding the pace of the SJP, declaring that it “can no longer provide excuses for not acting with greater speed”. But given its mandate and the immense scope of its jurisdiction, is the SJP’s work actually slow?

The widest temporal jurisdiction for a transitional criminal tribunal

The SJP has jurisdiction over the serious Human Rights and International Humanitarian Law violations committed prior to the signing of the Peace Agreement in December 2016 and in the context of the armed conflict in Colombia. The war was one of the longest-lasting contemporary armed conflicts to date. 

The outbreak of violence in Colombia was reported in 1948, while the official creation of the FARC-EP guerrilla dates back to 1964. With a temporal jurisdiction covering over half a century of internal armed conflict, this transitional tribunal has by far the most ambitious scope of all courts with similar mandates. In comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up in 1993 and covered crimes committed since 1991. As for the International Criminal Tribunal for Rwanda (ICTR), it only examined the crimes committed during the year of the genocide in 1994. Likewise, the Special Court for Sierra Leone (SCSL) had a one-year temporal jurisdiction, and the Extraordinary Chambers in the Courts of Cambodia (ECCC) covered violations committed during the two-and-a-half-year period of Democratic Kampuchea.

In addition, the Special Jurisdiction for Peace does not solely aim to establish individual criminal responsibility. Rather, it seeks to interrogate large numbers of violations and their context, in order to shed light on the patterns of behavior and internal policies of both the FARC-EP and the Colombian military and identify the circumstances that promoted or facilitated them. It is the first time that such a deep and broad analysis has been carried out by the Colombian judiciary, allowing contextual elements to be legally characterized. As a result, “crimes against humanity” and “war crimes” can be named as such, and their perpetrators prosecuted correspondingly. 

The SJP has opened seven “macro cases” which, instead of focusing on one specific perpetrator, deal with reiterated patterns of conduct, including kidnappings committed by the FARC-EP (macro case 01), extrajudicial killings and forced disappearances committed by public forces (macro case 03), recruitment and use of child soldiers (macro case 07), systematic targetting of political opponents (macro case 06) and a range of violations committed in specific regions particularly affected by the armed conflict. As of January 2020, the Jurisdiction declared having examined over 60,000 criminal facts within these macro cases.

A transitional tribunal set up to deliver innovative restorative justice 

All international criminal tribunals established so far have relied on retributive grounds, where victims’ participation and right to redress were minor. The Peace Agreement signed by the FARC-EP and the Colombian Government on 1 December 2016, one of the most comprehensive peace agreements worldwide, provides for the “centrality of the rights of the victims”. The SJP created by the Peace Agreement is thus fundamentally different from other international criminal tribunals and courts established thus far, as its end is primarily restorative.

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Posted in Colombia, International Criminal Court (ICC), International Criminal Justice, Special Jurisdiction for Peace | Leave a comment

Justice in Conflict Celebrates 10 Year Anniversary!

Posted on February 22, 2021 by Mark Kersten

Dear readers, followers, friends,

Justice in Conflict is ten years old!

It was way back in February 2011 that this blog came to life, in the midst of the Arab Spring and the International Criminal Court’s intervention into Libya. I was a young PhD student who probably seemed too confident while struggling with a mild case of imposter syndrome. What better thing to do than start a blog!

It might seem cliché, but I could never have imagined then what the blog would become. I imagined it as a place where I would direct my spare energy and develop my thoughts on international criminal and transitional justice, as well as conflict and peace studies. I did not give much thought or have much aspiration that it would become much more. But it did.

That is in large part thanks to all of the readers who have engaged with the blog along the way. I owe a great deal to many people. Kevin Jon Heller was the first person to welcome me and the blog, with this “Welcome to the Blogosphere” post in February 2011. Others also welcomed JiC with open arms, and I have had such rich and engaged conversations on the politics and law of international criminal justice because of it. One thing that I have found particularly rewarding is that JiC became the place where other writers and observers wanted to publish and share their thoughts and their knowledge with our community. 

Perhaps more than anything else, the blog opened doors for me to people, discussions, and opportunities that I otherwise never really dreamed of. I owe so much of that to my father, Gregory Kersten. As I wrote last year, he was the inspiration behind the blog. My dad rightly identified a young man with unspent energy and angst who needed an outlet. Without him, JiC would never have taken off.

JiC changed my life and I have changed alongside it. The blog started during my first year of my PhD studies. Since then I have worked for numerous NGOs, written a book that i goes to the heart of the subject of the blog, and now find myself back at law school, trying to identify new ways and tools to address political violence and mass atrocities. The blog has been a constant, a sort of journal where, to paraphrase, Joan Didion I wrote to learn what I think.

What I think now is that I am very fortunate to have learned along the way from all of you who have contributed with a post, a comment, a conversation, or a friendship. 

For that I will be forever grateful.

Thank you for coming along for the ride. Here’s to another 10!

Mark

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Victims and Perpetrators: Reclaiming the victim narrative from Dominic Ongwen

Posted on February 11, 2021 by Mark Kersten

Anushka Sehmi joins JiC for this contribution to JiC’s symposium on the life and trials of Dominic Ongwen. Anushka is a member of the external team of lawyers led by Joseph Manoba and Francisco Cox, representing 2,564 victims participating in the case against Dominic Ongwen before the International Criminal Court. The views below are provided in a personal capacity.

Resident of Northern Uganda during an ICC outreach event in Lukodi (Photo: ICC)

Warning: This article details acts of severe violence that some may find disturbing.

An especially long and hot day comes to an end in Gulu town, in northern Uganda. The sun is just starting to set. The unceasing gusts of wind leave a fine brown film of dust on my laptop. I promise myself to clean it once I get back to the hotel. My colleagues and I have just finished interviewing several victims participating in the case of Dominic Ongwen at the International Criminal court (ICC) in order to establish whether they would be interested in presenting evidence as witnesses in the trial.

One of the people we interviewed, Peter (pseudonym) describes in detail how he was abducted from Abok IDP camp in June 2004 by Dominic Ongwen’s Sinia Brigade. At the time, he was at home sleeping in the hut that he shared with his siblings and parents when the camp was attacked by the LRA. All he remembers is being woken up to the sounds of screams and gunshots. His parents and siblings were nowhere to be seen. Laden with a large bucket of salt that had been looted from the camp, Peter was forced to march long into the night along with the other camp residents who had also been abducted. Peter was 12 years old at the time and had been attending Abok Primary School prior to the attack. 

He described how, from the moment of their conscription, the new abductees were taught to live in terror. Punishments were inflicted publicly (and sometimes collectively), as a means of terrorising other recruits. Aspart of his initiation into the LRA, Peter was beaten every day with a cane in order to “remove the civilian” from him. After enduring two weeks of these beatings, Peter and others who had been abducted commenced their formal training.

During the interview, Peter pauses and then hesitantly mentions that one of his fellow abductees tried to escape after two weeks. The boy in question was around 15 or 16 years old. The would-be escapee was found by senior commanders in the group and dragged in front of a tree, near where Peter and two other boys who had been recently abducted were standing. The choice was simple: either beat this boy to death or be killed.

“I was scared. The boy was brought to me because I was the youngest.” 

Peter and the other two boys complied with the order and, using the wooden sticks they had been given as part of their training, hit the boy on his head repeatedly, eventually killing him. All he could think of at the time was that he would be killed if he did not comply with this order. The boy’s body was dragged away by two other abductees on the orders of one of the commanders. Tragically, this was not the only time Peter was forced to kill someone in this manner; it happened several times during his two years in the Sinia Brigade. 

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Posted in Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Tagged | 1 Comment

The moral and legal correctness of Dominic Ongwen’s conviction

Posted on February 10, 2021 by Mark Kersten

Paul Bradfield joins JiC for this post on the Ongwen verdict. Paul is an Associate Researcher at the Irish Centre for Human Rights at NUI Galway. He previously worked for the Office of the Prosecutor from 2013-2018. The views expressed here are entirely his own. The piece is part of our ongoing symposium on the life and trials of Dominic Ongwen.

Dominic Ongwen during the reading of his verdict at the International Criminal Court (Photo: ICC)

Tragic as it was, Dominic Ongwen’s conviction was correct, both morally and legally. His crimes demanded accountability. As we reflect on the complexities of this case, it’s important that we do so with full reference to the facts of the case. And to those who reject this judgement as legally deficient or morally unjust, we must also ask them to specify what is their alternative – can it really be argued that once someone reaches a certain level of victimhood, that no accountability should be permitted? 

From 2012-2013, I had the privilege to live in Gulu, northern Uganda, working on human rights and transitional justice issues. Living among the Acholi people was a defining time in my life. Their decency, humility, and kindness is unparalleled. I saw first-hand how the people of the north were grappling with the legacy of war. Debates around amnesty, accountability, traditional justice and reparations were very contentious then, and continue to be now. 

A few years later, I found myself working for the Office of the Prosecutor (OTP) when Dominic Ongwen was unexpectedly surrendered to the court. I worked on the trial for four years until the close of the Prosecution case. Watching the trial judgement was the culmination of years of dedicated work by many people. A large team of lawyers, investigators, witness support, IT staff, translators, transcribers, security, drivers and others all deserve recognition for bringing justice to thousands of participating victims.

Since Ongwen was apprehended, his own victim status has been a central feature of the case. His prosecution went against the grain of mass amnesty on the ground. Over 13,000 ex-LRA rebels have received amnesty since 2000. In Uganda, opinions are understandably mixed. My recent PhD fieldwork also bore this out, with ex-LRA rebels that I met essentially divided on whether he should be prosecuted or not. Diverging views were also evident in the communities I visited.

Ongwen’s abduction was tragic. This was readily acknowledged in the OTP’s opening statement (at p.35). However, Ongwen was on trial for things he did as an adult, with significant authority and independence as a Brigade Commander. He was no Kapo. He had the chance to walk away from the horror of his crimes, but made a conscious choice to stay in his position of power. At a notable encounter with the UPDF, religious leaders and others during peace talks, he was offered the chance to defect and allow his child soldiers their freedom, but he refused (at p.83).

I was often intrigued by some of the commentary around the case, and now the judgement. There is a certain degree of cognitive dissonance apparent within it. Philosophical or legal examination of difficult cases such as Ongwen’s should not merely be emotional, abstract exercises. It must be grounded in a full canvassing of all the relevant facts, the arguments of the parties, the applicable procedures, and most importantly of all: the evidence. 

For example, if you read academic journal articles on the Ongwen case, you will find there is a near-complete absence of detailed discussion or analysis of the actual evidence – the allegations, the crimes, the witness testimony, or what Ongwen is actually accused of doing. His actions are too easily brushed over. When interrogating the victim-perpetrator dilemma in this case, it is necessary to examine both aspects in detail. 

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Posted in Child Soldiers, Dominic Ongwen ICC, ICC Prosecutor, International Crimes Division (Uganda), International Criminal Court (ICC), International Criminal Justice, Kwoyelo Trial, Lord's Resistance Army (LRA), northern Uganda, The Life and Trials of Dominic Ongwen: A JiC Symposium, Uganda | Leave a comment

Beyond the Ongwen Verdict: Justice for Government Atrocities in Uganda

Posted on February 9, 2021 by Mark Kersten

Sarah Kihika Kasande joins JiC for this post on the need for justice for atrocities committed by Ugandan military forces in Northern Uganda. Sarah is a human rights lawyer and the Head of Office of the International Center for Transitional Justice in Uganda. The post is part of JiC’s ongoing symposium on the life and trials of Dominic Ongwen. For all of the other contributions, see here.

A Uganda solider at the destroyed palace the king of the Rwenzururu, following the massacre by UPDR forces in Kasese town in 2016. (Photo: 2016 James Akena/Reuters)

Dominic Ongwen’s conviction will provide a measure of justice to victims, but questions about atrocities committed by the Ugandan People’s Defence Forces (UPDF) remain unresolved.

The Good Justice

On February 4, 2021, the Trial Chamber of the International Criminal Court (ICC) convicted Dominic Ongwen, a former commander of the Lord’s Resistance Army (LRA), of 61 counts of War Crimes and Crimes Against Humanity including, murder, attempted murder, torture, enslavement, outrages upon personal dignity, pillaging, destruction of property and persecution; committed in the context of the attacks on the IDP camps of Pajule, Odek, Abok, and Lukodi.

Ongwen was also found guilty of all 19 counts of sexual violence, including forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages upon personal dignity. It is the first time that the court has convicted an accused person for the crime of forced pregnancy. The judgment further advances jurisprudence on accountability for sexual offenses. Sexual violence was a defining feature of the conflict between the LRA and Uganda’s government. It is therefore significant that Ongwen has been convicted of the highest number of counts of sexual violence preferred against an accused person at the ICC. Dominic Ongwen was also found guilty of the crime of conscripting children under the age of 15 into the Siniya brigade and using them to participate actively in hostilities.

Ongwen’s verdict was delivered nearly 16 years after the ICC unsealed warrants of arrest against the top LRA commanders. It is the first time that a perpetrator from the situation of Northern Uganda has been convicted. The judgment paves the way for the victims who have waited for almost two decades to obtain a measure of justice and reparations. Unfortunately, many of the victims did not live long enough to witness the historic judgment due to the delay. Some of them succumbed to the injuries that they sustained during the war. This underscores the importance of speedy justice. 

For the first time in the court’s history, ICC Judge Bertram Schmitt thoughtfully read out the names of the known victims of the crimes committed during the attacks on the four IDP camps. By naming the victims of these crimes, the trial chamber beyond establishing whether the prosecution had met the burden of proof required for Ongwen’s conviction to centering victims and their suffering. 

The Mixed Justice

Ongwen is no ordinary convict. He was robbed of his childhood following his abduction by the LRA  at the age of nine as he was on his way to school and forcibly conscripted into the LRA as a child soldier. He rose through the ranks to become a commander of the Siniya brigade, one of the 3 LRA brigades. Some individuals believe Ongwen is a victim of the government’s failure to protect the people of northern Uganda. David Ojok, a resident of Coorom, Ongwen’s village said:

I blame the government for his abduction because they (government) failed to protect him. If the government had protected him, Kony would not have had the opportunity to abduct him and train him.

Whereas many do not deny that he committed horrific crimes, they think that Ongwen should have been pardoned and subjected to Mato Oput, an Acholi Traditional Justice Mechanism that focuses on the confession of wrongdoing, seeking forgiveness, reconciliation, and reparation. 

However, for the victims of Ongwen’s atrocities, the long-awaited verdict recognizes their suffering and the impact of the LRA’s crimes on the war-affected communities.

The Missing Justice

One commonly held view by victims and war-affected communities in Northern Uganda is that Uganda’s government did not do enough to protect them from LRA attacks and atrocities. In the Judgement, the trial chamber acknowledged the persistent failure by the UPDF to protect civilians living in Internally Displaced Peoples camps from attacks. In all the attacks against the IDP camps at Abok, Lukodi, Odek, and Pajule, UPDF soldiers fled, leaving civilians defenseless. The Chamber noted that the protection provided by the UPDF was” insufficient and illusory in many cases.”  This finding vindicates calls for an independent inquiry into the failure by the UPDF to protect displaced populations in Northern Uganda. 

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