Engaging the #ICC: What’s the @IntlCrimCourt doing on Twitter?

Posted on May 18, 2016 by Mark Kersten
(Image: Mashable)

(Image: Mashable)

The International Criminal Court (ICC) has been on Twitter for almost seven years now. Most readers of the blog who are also on Twitter follow the Court’s handle. They’ll have noticed that the Court has become increasingly active on social media in recent months. It regularly posts developments and news from the institution as well as photos and videos featuring the Court’s principals (the Chief Prosecutor, Registrar, and President) meeting with various international figures and diplomats. This increased activity is no doubt a significant — and welcome — development. The ICC’s social media account was previously afflicted by the same mundanity as the Court’s website — which has also received a much-needed and fantastic upgrade.

The ICC’s increased activity on Twitter signals a growing recognition of the importance and value of communicating the Court’s work via social media. As I have previously argued, the ICC has a potentially vast and loyal following. The Court is constantly in the news. Groups like Save Darfur or Invisible Children make documentaries that manage to pull in millions of viewers — and a big part of their message dovetails with the ICC’s mission, although often in obscenely simplified terms. Whether one agrees with their message or not, these organizations understand the importance and value of social media. If nothing else, documentaries like Kony2012 demonstrate that the broader story of international criminal justice is salient with the internet generation.

So who does the International Criminal Court follow on Twitter? For years, the Court’s Twitter handle didn’t follow anyone. In recent months, however, the number of other accounts it follows has exploded to a whopping 1,203. That is about two-hundred more than the United Nations and over twice as many as the World Bank. Unsurprisingly, most of the accounts that the institution follows belong to other international organizations (including an astounding number of local and regional United Nations divisions) as well as natural allies like Human Rights Watch and the Coalition for the International Criminal Court (CICC). Curiously, however, the ICC also follows a motley crew of celebrities, including the likes of Katy Perry, Shakira, Reese Witherspoon, Gisele Bündchen, and Ricky Martin — all of whom are famous but none of whom are known for their support of the Court. This may be an indication of the ICC’s penchant for seeking out celebrity star power (see Angelina Jolie, Angelina Jolie, and Angelina Jolie). But the Court’s Twitter account has never reached out to any of these celebrities on Twitter, so it’s unclear what value the institution gets from following them. Other international organizations also subscribe to celebrity accounts on Twitter (the UN follows Kate Davis of Sex in the City fame, while the World Bank follows Charlize Theron), although they do so much less so than the ICC.

Of relevancy here too is who the ICC doesn’t follow. The institution does not subscribe to any accounts belonging to people or organizations that are devoted to understanding the Court but might be seen as even moderately critical of the institution. That means no Opinio Juris, no EJIL:Talk!, no International Crisis Group, no Just Security, etc. It is generally unclear what strategy guides which accounts the ICC follows and which it doesn’t — if there is a strategy at all.

It is likewise unclear what strategies are in place to inform how the Court’s account should interact on Twitter. While its increased use of photographs and videos is a welcome effort in allowing people to see developments at the ICC, instead of grasping that social media is primarily about engagement, the Court’s Twitter account is a repository of “this is what happened at the ICC today”. As a result, the ICC continues to have a mostly sterile presence on Twitter. As Ottilia Maunganidze observes, the Court’s account “is mostly like an RSS feed of press release bylines”. Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Social Media | 5 Comments

As Battle over Victor’s Justice Looms, Maybe the ICC Should Let Côte d’Ivoire Prosecute Simone Gbagbo

Posted on May 13, 2016 by Mark Kersten
Simone Gbagbo during trial proceedings in Abidjan in 2014 (Photo: Luc Gnago / Reuters)

Simone Gbagbo during trial proceedings in Abidjan in 2014 (Photo: Luc Gnago / Reuters)

Unless there are any delays, and let’s face there are almost always delays, the trial of Côte d’Ivoire’s former First Lady will begin at the end of this month. Simone Gbagbo faces charges of crimes against humanity as a result of her involvement in the 2010/11 post-election violence, an episode of unrest that resulted in her husband and former President, Laurent Gbagbo, being deposed from power. At the same time, Simone Gbagbo faces allegations of crimes against humanity at the International Criminal Court (ICC), where an arrest warrant was issued for her in February 2012. The Court’s Judges — along with advocates of the ICC — have insisted that Gbagbo be surrendered to The Hague. But with a much larger battle between the current government of Alassane Ouattara and the ICC on the horizon, it seems unwise for the Court to go to battle over the ‘Iron Lady’.

This isn’t the first time that Simone Gbagbo has faced charges stemming from the 2010/11 violence in Côte d’Ivoire. In March 2015, Gbagbo was found guilty and sentenced to twenty years in prison for a crop of crimes, including undermine state security forming and organizing armed gangs, and disturbing the peace. Ivorian officials subsequently asked the ICC to back off in its efforts to force the surrender of Gbagbo to the Court. They had issued an admissibility challenge claiming that, because they were willing and able to prosecute Gbagbo domestically, the Court, under the principle of complementarity, had to allow the Ivorian government to prosecute Gbagbo in Côte d’Ivoire. Dissatisfied that Gbagbo had not been prosecuted for the same crimes for which she was indicted by the ICC, the Court’s judges rejected Côte d’Ivoire’s admissibility challenge and insisted that she be surrendered to the Court. The Ivorian government subsequently initiated new proceedings against the former Ivorian first lady for crimes against humanity — the same category of crimes for which the ICC itself targeted Gbagbo.

This should be a good story for the ICC. As its senior-most officials regularly insist, the ICC is a “court of last resort” and the institution’s ultimate goal is to galvanize governments to prosecute international crimes themselves, rather than relying on international tribunals. This policy of “positive complementarity” has been heralded by proponents of the ICC as a means to promote the global rule of law and to bring justice for international closer to victims and survivors of mass atrocities. And this seems to be exactly what happened in Côte d’Ivoire: as a result of the ICC’s prodding, the government moved to prosecute Gbagbo not only for domestic crimes but for crimes against humanity.

Still, just this week, Amnesty International insisted that Côte d’Ivoire surrender Gbagbo to the ICC. The Gaëtan Mootoo, West Africa researcher for Amnesty International, declared that: “Unless Côte d’Ivoire applies to the International Criminal Court to again challenge the admissibility of her case they must immediately surrender Simone Gbagbo to the ICC.” Procedurally, this is understandable; Ivorian authorities should issue a new admissibility challenge citing the new charges of crimes against humanity levied against Gbagbo. But there are good arguments that the Court, and its proponents, shouldn’t press Côte d’Ivoire — especially now.

Kevin Jon Heller took this issue up even before Gbagbo faced charges of crimes against humanity, comparing the severity of the Gbagbo’s sentence to that of individuals previously convicted at the ICC:

[W]hat would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than [Thomas] Lubanga’s, and eight years longer than [Germain] Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t.

In a timely and important article on the subject, Heller has also argued for what he calls “radical complementarity”, whereby “as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.”

At the time Heller published his articles, a possible counter-argument could have been that victims of such Gbagbo’s alleged crimes against humanity wouldn’t see justice, unless they were also victims of disturbing the peace and undermining state security. But it is important to remember that ICC justice too is riddled with blindspots. To take but one example, the victims of atrocities perpetrated by the so-called M23 rebellion in eastern Democratic Republic of Congo won’t receive any attention during the ICC trial of M23 leader Bosco Ntaganda because prosecutors have chosen to only focus on crimes he committed a decade earlier.

But in Gbagbo’s case, it truly bears bludgeoning the point: the argument that the ICC should step off the gas in this instance is even stronger today given the fact that Gbagbo faces the same classification of crimes in Côte d’Ivoire as she faces at the ICC.

Continue reading →

Posted in Complementarity, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, Ivory Coast / Côte d'Ivoire, Ivory Coast and the ICC, Simone Gbagbo | Leave a comment

World Wide Justice: The ICC Gets a New Website

Posted on May 11, 2016 by Mark Kersten

International Criminal CourtIt was very belated and it most certainly wasn’t without hiccups, but the International Criminal Court (ICC) finally has a new website. I would describe it as “miles better” but that doesn’t even come close to sufficing.

Public commentators of the ICC (including myself) began regularly lambasting the site in 2013, insisting that it undermined the very mandate of the institution: spreading and achieving international justice and accountability. Not long afterwards, some of us were asked, via the ICC’s Registry, to advise on the new site. The public was also invited to give their feedback and thoughts on the matter. Three years and a few alpha and beta versions later, and… voila! Sure, it started from a position that I once (and, in hindsight, pretty dramatically) described as “the dead-end of the internet”, but the Court’s website is galaxies better than it was.

The Court’s shiny new website is accessible, search-able and user-friendly. It includes very helpful sections for academics and researchers, the media, diplomats, and lawyers. It also has some snazzy videos and slick graphics.

After criticizing the site so often over the past few years, it seems only fair that I commend and congratulate the Court’s new online presence.

Peruse at your pleasure!

Posted in International Criminal Court (ICC) | 2 Comments

Yeah, Right… ICC Officials Say There’s No Evidence Against Ugandan Military

Posted on May 5, 2016 by Mark Kersten
ICC Chief Prosecutor Fatou Bensouda with Ugandan President Yoweri Museveni during a meeting in 2015 (Photo: Daily Post)

ICC Chief Prosecutor Fatou Bensouda with Ugandan President Yoweri Museveni during a meeting in 2015 (Photo: Daily Post)

The Office of the Prosecutor and the Government of Uganda have always had a close, if at times strained and uncomfortable, relationship. There is little love lost between senior officials but they have been awkward bedfellows for fifteen years. Early on in the ICC’s existence, Court officials and the Government of President Yoweri Museveni engaged in close negotiations with the aim of providing the ICC with jurisdiction to target senior commanders of the Lord’s Resistance Army (LRA). In 2003, then-Chief Prosecutor Luis Moreno-Ocampo infamously held a joint-press conference with Museveni in London to announce that Uganda had referred the LRA to the ICC (later amended to “the situation in northern Uganda” because referring the LRA alone was legally bonkers, even if it more closely reflected reality). For critics and proponents of the ICC alike, this signaled Moreno-Ocampo’s intention to target the LRA and only the LRA. His appearance with Museveni, a staggering demonstration of bias towards the government and its military forces, was no accident; Moreno-Ocampo was not oblivious to the implications of buddying up with the Ugandan leader.

Fast-forward ten years, and the ICC has still not investigated, and is increasingly unlikely to investigate, alleged crimes perpetrated by the Government and the Uganda People’s Defence Force (UPDF). Originally, Moreno-Ocampo insisted that LRA atrocities were of such greater “gravity” compared to alleged UPDF crimes that investigators had to start with the LRA. Perhaps for this reason, William Schabas has written that “[t]he gravity language strikes the observer as little more than obfuscation, a laboured attempt to make the determinations look more judicial than they really are… to take a political decision while making it look judicial.”

In the end, skeptics were right: the ICC has not investigated any crimes by the Government or the UPDF. The bigger question is: why?

One possible answer is that the Government did not commit any crimes under the jurisdiction of the ICC — i.e war crimes or crimes against humanity — in northern Uganda. A recent statement by Mochochoko Phakiso, head of the Jurisdiction, Complementarity and Cooperation Division in the ICC’s Office of the Prosecutor, suggests that investigators simply don’t have the evidence to go after the UPDF: “It’s false propaganda that the ICC is only after the LRA. We have not received any evidence against the UPDF.” Setting aside the rather insulting insinuation that many, perhaps even the majority, of northern Ugandans spread and believe in “false propaganda”, could this be true? It is desperately hard to believe.

For anyone who has traveled to northern Uganda and spoken to the people there, it is impossible not to be told of UPDF and government crimes. Even those who believe that the ICC’s prosecutions of senior LRA rebels are appropriate also insist that the ICC should likewise prosecute members of the government and UPDF who committed unspeakable crimes. The fact that the UPDF has been let off the hook is confusing to many. This anecdotal evidence of UPDF crimes is supported by heaps of substantive evidence and research. The following excerpt from my forthcoming book* is but a small snippet of the troves of documents and evidence of the Governments crimes:

A crucial but oft-neglected cause of the war was the response and behaviour the NRM/A (later the UPDF) in northern Uganda and, in particular, its direct responsibility for mass human rights violations and its unwillingness to provide protection for civilians from LRA violence. Human Rights Watch (2003a; 2003b, 19-21; 2005) has catalogued cases of torture, murder, rape by government soldiers and even the recruitment of child soldiers into government forces – the same allegations levied against the LRA. At the same time, the Government of Uganda (GoU) seemed uninterested in defeating the rebels or providing adequate protection for civilians. As Adam Branch (2010b, 38) writes, “the NRA has generally abandoned the population to rebel violence letting it continue as a kind of collective punishment by proxy”. The result was that the people of northern Uganda were trapped as victims of violence perpetrated by the rebels and the violence perpetrated by the GoU. They were “caught between the fire and the frying pan: a hostile army of occupation and a ‘terrorist’ rebel group.” (Mwenda 2010, 55).

UPDF violence was, however, not only direct. In response to the rebellion, the GoU propagated and imposed a system of structural violence on the people of northern Uganda. As violence in northern Uganda spread and intensified in the 1990s, the Government began to herd civilians into IDP camps, a process that began in late 1996 (Dolan 2009, 46). By 2002, 800,000 civilians had been displaced. Some civilians chose to relocate to the camps but many others were coerced into doing so. In 2002, for example, the UPDF ordered all citizens from the districts of Kitgum, Pader and Gulu to relocate to the IDP camps. Refusing to do so meant being identified as a rebel collaborator and being targeted by the UPDF (see Rodriguez 2009, 102). Chris Dolan (2009) captures the dynamic of northern Ugandan civilians stuck in the cross-fire of the LRA and GoU in his book, Social Torture. Dolan persuasively argues that the war is “a form of mass torture, whose principal victims are the population within the ‘war zone’, and whose ultimate function is the subordinate inclusion of the population in northern Uganda.” The primary locus of ‘social torture’ was the IDP camps, named “protection villages” by the GoU, although more akin to “concentration camps” according to Rodriguez (2009, 104), Branch (2007a, 181) and Mwenda (2010, 55). In these camps, Dolan (2009, 1) finds the symptoms and tactics of mass torture: “widespread violation, dread, disorientation, dependency, debilitation and humiliation”. Finnstrom (2008, 133) makes a similar argument suggesting that the IDP camps constituted a form of structural violence against the people of northern Uganda, wherein “cultural and social agency diminish as the logic of domination and violence enter the most private spheres of everyday life.” Human rights groups have tended to agree. One report, prepared for United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), concluded that “the overall picture is one of severe destitution” (Weeks 2002, 5; see also Dolan 2009, 221) and, moreover, while direct violations of rights were commonplace, the camps’ “most damaging achievement of all has been to inflict economic and social paralysis on an entire society, which has thereby been reduced to destitution and dependency.” (Weeks 2002, 4). Some suggest that upwards of 1,000 people died per week, not from rebel attacks but as a result of the squalid conditions within the camps themselves (Mwenda 2010, 56; see also The Republic of Uganda Ministry of Health 2005). This represented a death toll that far exceeded what the rebels did or could achieve (Mwenda 2010, 56).

GoU violence against civilians was also direct. UPDF soldiers, sometimes disguised as LRA commanders, regularly abused civilians. And while some officers were held to account, this typically only occurred when cases received attention from notable citizens (Dolan 2009, 147). The camps appeared to be a tactical strategy wrapped in a ruse: the ‘good’ Government as a protector of civilians against the ‘evil’ LRA. “For from the day they were initiated in the name of protecting the civilian population, these villages instead became sites of their abuse… In fact, the ‘protected villages’ violated all major categories of rights, and just about all the UN’s ‘Guiding Principles on International Displacement’.” (Ibid. 151).

The UPDF forced civilians into the IDP camps not, as the title “protection villages” would suggest, for their ultimate benefit, but as part of its broader military strategy. In the midst of ongoing suspicions that the Acholi people were rebel sympathizers and collaborators, the use of camps to dominate and control northern Ugandans was a useful arrangement for the UPDF (Finnstrom 2008. 141-144). Eichstaedt (2009, 260) describes the government’s approach as “calculated neglect” which “allowed Kony and his rebels to wage a bloody and inhumane war against his own people and then abused these same people it claimed to protect.” (see also Branch 2011, 90-118). Finnstrom (2008, 158) adds that foreign humanitarian aid agencies have been complicit in this process “as a parallel partner to the army”. The forced encampment has since been followed with forced resettlement. The process of forced resettlement, however, “has also been enforced domination and an effort to control the population”, with the GoU “imposing its rule by regulating everyday life” (Finnstrom 2008, 145).

This barely scratches the surface of allegations against the Government and UPDF. Yet there is, in fact, no evidence that the ICC has ever conducted an effective or thorough investigation of UPDF crimes. And if they have, Phakiso may actually be right: investigators have not “received any evidence against the UPDF.” The real question is: how often and strenuously have they asked for such evidence — and from whom? And what explains such recalcitrance to investigate UPDF and government crimes?  Continue reading →

Posted in International Criminal Court (ICC), International Criminal Justice, Lord's Resistance Army (LRA), Luis Moreno-Ocampo, northern Uganda, Uganda | Tagged , | 6 Comments

Mass Atrocity Monday, 5/2/2016: The Wagalla Massacre

Posted on May 2, 2016 by Kate Cronin-Furman
Wagalla Massacre Monument, from website of the Kenya National Commission on Human Rights.

Wagalla Massacre Monument, from website of the Kenya National Commission on Human Rights.

Hundreds, maybe thousands, of people died on the Wagalla airstrip in early February, 1984. The victims were ethnic Somalis living in Kenya’s North Eastern province. Their killers were members of the Kenyan army, ostensibly investigating reports of a planned rebellion by members of the Degodia clan.

Over the course of several days, troops burst into homes, raping women, destroying property, and seizing the men. The Degodia men, and anyone else unlucky enough to be caught up in the search, were taken to the airstrip. Once there, they were told take off their clothes and lie on the hot ground. Those who refused were shot on the spot. The rest were beaten and tortured, asked over and over if they owned a gun, and where it was. They were there for days, without food or water, baking in the hot sun.

Survivors say more than 5,000 people lost their lives at Wagalla—some from beatings, some viciously set on fire, many more shot in an escape attempt, and others succumbing to exhaustion in the heat. But for years, the Kenyan government denied it. The official story was 57 dead, all unfortunate casualties of a legitimate security operation.

The survivors of the massacre have spent decades demanding accountability. In 1992, President Moi promised that compensation would be paid to the families of the dead. It wasn’t.

When a national Truth, Justice, and Reconciliation Commission (TJRC) was created in the aftermath of Kenya’s 2007-2008 election violence, hearings were finally held into the Wagalla Massacre. But the TJRC’s credibility with victims was marred from its inception. The man appointed as chairman, Bethuel Kiplagat, was in attendance at the meeting where the massacre was allegedly authorized. Although he initially stepped aside due to the controversy, he was reinstated.

When the TJRC’s report came out, it confirmed that a mass slaughter had taken place, and that the death toll was far greater than previously acknowledged. It recommended an official apology and reparations for the Wagalla victims. In 2015, President Uhuru Kenyatta issued a blanket apology for “past wrongs” but reparations have yet to be paid.

The Wagalla Massacre is among the worst human rights abuses in Kenya’s post-independence history. Yet a number of officials implicated in ordering it remain in positions of power. The plight of the survivors, who’ve spent decades advocating on their behalf to no avail, underscores the difficulty of securing justice when it isn’t politically advantageous. Ethnic Somalis are a tiny minority in Kenya—some 6% of a national population of 45 million. And since independence-era efforts to join Kenya’s North Eastern Province to Somalia, they have been persistent targets of repression and discrimination by the government. Their demands therefore had little impact on successive Kenyan governments, who neither sought their votes nor valued them as citizens.

Posted in Kenya, Mass Atrocity Monday | 4 Comments

Protecting the Story-Line: Why Kenya Refuses To Surrender Witness Intimidation Suspects to the ICC

Posted on April 28, 2016 by Mark Kersten
Kenyan Deputy President William Ruto (Photo: Tuko)

Kenyan Deputy President William Ruto (Photo: Tuko)

Just when you thought the drama was over…

There have been reports of widespread relief among staff of the International Criminal Court (ICC) that their long-running and dramatic political run-in with Kenya was finally a thing of the past following the recent collapse of the last cases relating to the 2007/08 post-election violence. But the fight over three outstanding warrants of arrest — for three Kenyan citizens wanted by the Court on charges of obstructing justice and intimidating witnesses — suggests that the battle between Nairobi and The Hague isn’t over just yet.

The ICC’s Kenya cases, especially those against President Uhuru Kenyatta and Deputy President William Ruto, did little but harm the Court. A combination of severely flawed prosecutions by the ICC, indifference among political powers in the broader international community, as well as political pressure and interference from Kenya and some members of the African Union, proved a toxic and ultimately fatal mix of factors for the Kenya trials. To address its shoddy cases, some ICC investigators and prosecutors have pushed for more thorough and careful case-construction. For them, the Kenya disaster was a wake-up call. The wider apathy of the international community towards the ICC’s toughest cases, of course, hasn’t change and most days seems like a structural problem facing international criminal justice. But what of the issue of Kenya’s political interference and the allegations of witness intimidation?

Since 2013, the ICC has issued arrest warrants for Walter Barasa, Paul Gicheru, and Philip Kipkoech Bett, on the grounds that they perpetrated “offences against the administration of justice” by “corruptly influencing ICC witnesses.” Since then, they have remained in a sort of legal limbo as the government of Kenya fought the cases against its President and Deputy President whilst insisting that it was up to Kenyan courts to decide whether Barasa, Gicheru, and Bett could be transferred to the ICC. Following the collapse of the case against Ruto, however, President Kenyatta was unequivocal, declaring that no other Kenyan citizen would ever to be sent to the ICC:

I will not allow any other Kenyan to be tried in a foreign court. As a country, we have closed the ICC chapter…

We have closed that chapter, we will not go anywhere else, we will not allow anyone else to be taken anywhere else, we have our own courts here. I would not wish to see another Kenyan going through the same journey we went through. If we have an issue, the answer to it lies here. For those who might be looking for us, they need to know we are not there and we will not go back.

Kenya’s Attorney General Githu Muigai has since added that anyone charged by the ICC will be investigated and prosecuted in Kenya, by Kenyans, and that this process would be initiated “in a very few weeks.” But why is Kenya so concerned about the potential prosecution of Barasa, Gicheru and Bett at the ICC? Continue reading →

Posted in International and Organized Crimes Division of Kenya, International Criminal Court (ICC), International Criminal Justice, Kenya, Kenya and the ICC | Tagged , , , , | 3 Comments

PRESS RELEASE: Prosecutor of the International Criminal Court Speaks on the Trial of Dominic Ongwen

Posted on April 21, 2016 by Mark Kersten

This is the final post in JiC’s symposium on the trial of Dominic Ongwen and the prosecution of former child soldiers. Disclaimer: this is not a real press release. For a list of the posts written to date, please see here. Thanks for reading!

A training centre for former child soldiers in northern Uganda (Photo: Article 25 http://www.article-25.org)

A training centre for former child soldiers in northern Uganda (Photo: Article 25 http://www.article-25.org)

DISCLAIMER: this is not a real press release.

Today, 21 April 2016, the Chief Prosecutor of the International Criminal Court (ICC) spoke to members of the media and issued a statement regarding the prosecution of Dominic Ongwen. Mr. Ongwen was a senior rebel commander of the Lord’s Resistance Army (LRA) and is currently facing seventy counts of war crimes and crimes against humanity. A warrant for his arrest was issued in 2005 and he was surrendered to the Court in January 2015.

“First, we must acknowledge that prosecuting anyone who has been a child soldier is a tragedy but also a necessary evil,” Chief Prosecutor Fatou Bensouda said. “No one should ever have to endure the hardship and violence that derives from being a child soldier. Yet, at the same time, it is not possible for my office, or any court for that matter, to simply ignore the atrocities committed by perpetrators who have previously been victims of the same or similar types of crimes.”

The Chief Prosecutor further stated that she understood that not all people in northern Uganda agreed with the prosecution of individuals who had previously been abducted as children. “We sought out to make a positive difference in northern Uganda,” said Bensouda. “My office fully recognizes that, ten years after five arrest warrants were issued for the top leadership of the LRA, having only one individual in custody, a former child soldier, has not come close to meeting the expectations of victims and survivors of LRA violence. I want to take this opportunity to reaffirm our position that we will continue to investigate any and all LRA crimes under the jurisdiction of the Court and also remind all parties, including the government of Uganda and its military, that further investigations and prosecutions are within the mandate of my office.”

Bensouda added that “for a number of reasons, many of which are outside of the control of the Court, the expectations of people in northern Uganda have not been met.” In order to avoid widening any expectation gap in the future, the Chief Prosecutor expressed her office’s intention to prosecute Ongwen both expeditiously and effectively. “Despite the fact that we charged Mr. Ongwen with seventy counts of war crimes and crimes against humanity, my office is committed to efficient proceedings. Barring any unforeseen or significant obstacles in the coming months, we will rest our case no later than three years from the beginning of the trial. Mr. Ongwen’s defence is aware of our intentions and have likewise committed to an efficient and fair trial. Let me be absolutely clear: the burden is on my office, on the judges, and on the defence — and not the victims and survivors of northern Uganda — to ensure that proceedings are efficient. We will work tirelessly to meet that expectation.”

Continue reading →

Posted in Child Soldiers, Dominic Ongwen ICC, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Reparations, Symposium, Uganda | 1 Comment

Shifting Narratives: Ongwen and Lubanga on the Effects of Child Soldiering

Posted on April 20, 2016 by Mark Kersten

JiC is thrilled to welcome Mark A. Drumbl for this penultimate post in our symposium on the trial of Dominic Ongwen and the prosecution of former child soldiers. Mark is the Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law. To read the other contributions to the symposium, see here.

Dominic Ongwen during pre-trial proceedings at the International Criminal Court (Photo: ICC)

Dominic Ongwen during pre-trial proceedings at the International Criminal Court (Photo: ICC)

On March 23, 2016, ICC Pre-Trial Chamber (PTC) II issued its decision confirming charges against Dominic Ongwen. PTC II confirmed many charges, including for sexual and gender-based crimes. Ongwen will be tried for some crimes that he had himself endured. These include the war crime of cruel treatment, conscription and use as a child soldier, and the crime against humanity of enslavement.

Ongwen was abducted into the Lord’s Resistance Army (LRA) at the age of 9 while walking home from school. He was bullied, brutalized, and indoctrinated as a child soldier. He rose through the ranks. He ascended to the upper echelons of power, although these remained tightly controlled by LRA leader Joseph Kony.

Irrespective of how high he ascended, however, Ongwen’s point of entry remains fixed as a young, kidnapped, orphaned, and abused child. Ongwen’s defense team invoked this point of entry in its submissions. Defense counsel did so to make two specific legal points. First, that the ongoing and continuous nature of the crime of child soldiering means that Ongwen left the LRA – nearly thirty years later – still as a child soldier and, thereby, that he should be entitled to the evacuation of individual criminal responsibility that hortatorily inheres in the international legal regime that protects child soldiers. Second, the defense team submitted that coming of age in the LRA amounts to a kind of institutionalized duress that excludes criminal responsibility under Rome Statute article 31(1)(d) rather than just mitigating sentence. According to the defense, Ongwen “lived most of his life under duress (i.e. from the age of 9.5 years old)” and his “so-called rank was demonstrative of one thing: that he was surviving better than others while under duress”.

When making both arguments, the Ongwen defense team extensively (yet unsuccessfully) invoked the findings of Dr. Elisabeth Schauer, a court-appointed expert whose testimony on the dissociation and trauma arising out of the child soldiering experience had been dispositive to the Lubanga case. In Lubanga, child soldiers were the victims and Lubanga the adult perpetrator; in Ongwen, the accused is a former child soldier and many of his alleged victims were children at the time.

PTC II perfunctorily dismissed Ongwen’s first argument without providing any reasons. PTC II also dismissed the second argument, although not quite as perfunctorily. One judge, moreover, will append in due course a separate, concurring opinion.

Reasonable minds can disagree as to whether the defense arguments have merit. The point of my commentary is not to revisit these arguments. Grounds for excluding responsibility may, moreover, be reassessed at trial where the burden on the prosecutor is higher than at the confirmation of charges stage. Nor is the point of my commentary to suggest how (and where) a Trial Chamber might hypothetically assess these arguments.

Instead, my point is to emphasize that international criminal law should proceed in consistent and predictable ways. Here, PTC II slipped. Its understanding of the agency of actual and former child soldiers in Ongwen departs from the understanding previously deployed by the Lubanga Trial and Appeals Chambers, in particular in the sentencing judgments.

Lubanga cast the linkage between the past as a child soldier and the present as a former child soldier as linear and continuous. The child soldiering experience was constructed as ongoing and assured: it rendered the children as victims damaged for life, with their reality today as derivative of their previous suffering. Once a child soldier in fact, always a child soldier in mind, body, and soul. In Ongwen, however, the linkage between the accused’s past as a child soldier and his present as a former child soldier was seen as discontinuous and contingent. Continue reading →

Posted in Child Soldiers, Defense Counsel, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Symposium, Uganda | 12 Comments

We Need to Talk About Ongwen: The Plight of Victim-Perpetrators at the ICC

Posted on April 19, 2016 by Mark Kersten

Barrie Sander continues our symposium on the trial of Dominic Ongwen and the prosecution (or in this case, defence) of former child soldiers. Barrie is a Ph.D. Candidate at the Graduate Institute of International and Development Studies (IHEID). His research focuses on conceptions of justice and the construction of historical narratives in international criminal courts. Barrie is also a regular contributor to JiC. You can find his other posts here. This symposium was inspired by Barrie’s efforts to start a debate and dialogue on the issues and dilemmas raised by the Ongwen trial.

Dominic Ongwen shortly after he was transferred from the the African Union Regional Task Force to the Uganda People's Defence Forces.

Dominic Ongwen shortly after he was transferred from the the African Union Regional Task Force to the Uganda People’s Defence Forces.

Amidst the flurry of activity within the field of international criminal justice over the past few weeks, Dominic Ongwen – former child soldier and adult commander within the Lord’s Resistance Army (LRA) – became the first individual in the history of the International Criminal Court (ICC) to have charges confirmed against him of which he is also a victim.

The story of Dominic Ongwen has been well-documented within existing scholarship and media accounts of the conflict in northern Uganda. Abducted at the age of nine and trained to become a child soldier, Ongwen grew up to become a notorious commander within Joseph Kony’s LRA. After falling into the hands of Seleka rebels in the Central African Republic in January 2015, Ongwen was taken into US custody and promptly transferred to the ICC in The Hague.

From its inception, the idea of prosecuting Ongwen at the ICC has divided opinion both within Uganda and beyond. For some, since there is little difference between Ongwen and other former child soldiers who have been granted amnesties for their crimes, it seems unjust to single out Ongwen for prosecution. This view feeds into a broader critique of the ICC, which queries whether justice can ever be done within a judicial institution whose prosecutorial selectivity is consistently aligned with the dictates of State power. For others, Ongwen’s prosecution at the ICC is not only welcome but necessary. Adherents to this view caution that failing to prosecute Ongwen would serve as a licence for those in similar circumstances to carry out acts of violence with impunity.

One of the complexities of Ongwen’s case is that his victim-perpetrator status challenges the binary coding of international criminal law, which, as Mark Drumbl has argued, “derives its energy from, and in turn disseminates polarities of guilt/or innocence, capacity/or incapacity, adult/or child, and victim/or perpetrator”.

This dimension of the case rose to the fore during the Confirmation of Charges proceedings when Ongwen’s Defence attempted to rely on their client’s tragic background to argue that the case against him should be dismissed. In particular, the Defence raised two arguments, both of which were ultimately rejected by the PTC.

The Defence first argued that Ongwen should benefit from the legal protection afforded to child soldiers up to the moment of his leaving the LRA in January 2015, almost 30 years after his original abduction, and that such protection should include the exclusion of his individual criminal responsibility.

The Defence emphasised that the crime of conscripting child soldiers is a continuous crime and therefore did not come to an end when Ongwen turned 15 years of age. Forced to witness and perform unspeakable acts as a child, Ongwen was psychologically broken down and disconnected from the social construct of normal society in northern Uganda. Since Ongwen remained locked within this environment throughout his life, the Defence contended that the age of 18 years old, which serves as the marker for adulthood and criminal responsibility before the ICC, has little relevance for someone in his situation. In particular, it would be contrary to notions of justice to use international humanitarian law against Ongwen when that very same body of law had failed to protect him in the first place.

In response, the PTC gave short shrift to this argument, simply observing that it was entirely without legal basis and would therefore not be entertained further.

In its second argument, the Defence argued that Ongwen’s responsibility should be excluded on the ground that he acted under duress within the meaning of Article 31(1)(d) of the ICC Statute. Once again, the PTC rejected the Defence’s argument, this time on multiple grounds.

First, the PTC argued that the threat alleged by the Defence – the possibility that Ongwen would later be subjected to disciplinary measures – had not been “imminent”. In this regard, the PTC emphasised that “duress is not regulated in the Statute in a way that would provide blanket immunity to members of criminal organisations which have brutal systems of ensuring discipline as soon as they can establish that their membership was not voluntary”.

Second, the PTC argued that Ongwen’s stay within the LRA – which the Defence had claimed to be the source of the threat – could not be said to have been “beyond his control”. For this purpose, the PTC pointed to evidence that escapes from the LRA were not rare and that Ongwen could have chosen not to rise within the hierarchy and expose himself to increasing levels of responsibility within the organisation.

Finally, the PTC argued that the Defence had failed to demonstrate that Ongwen had acted “necessarily and reasonably” to avoid the alleged threat and had “not intended to cause a greater harm than the one sought to be avoided”.  By way of example, the PTC observed that even if Ongwen could not have avoided accepting forced wives, “he could have avoided raping them, or, at the very least, he could have reduced the brutality of the sexual abuse”.

As this analysis suggests, the Defence and PTC each adopted contrasting narrative perspectives of Ongwen’s behaviour. Whereas the Defence viewed Ongwen’s story as a narrative about inevitability, involving an individual caught up in events beyond his control, the PTC depicted Ongwen’s story as a narrative about choice, involving a moral agent who had genuine opportunities to act otherwise than he did notwithstanding his devastating upbringing. Continue reading →

Posted in Child Soldiers, Defense Counsel, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, northern Uganda, Uganda | Tagged | 4 Comments

There is Nothing Extraordinary about the Prosecution of Dominic Ongwen

Posted on April 18, 2016 by Mark Kersten

JiC’s symposium on the trial of Dominic Ongwen and the prosecution of child soldiers continues with this contribution by Alex Whiting. Alex is a Professor of Practice at Harvard Law School where he focuses on international and domestic prosecution issues. He previously worked as a prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia. For a list of the other contributions to the symposium, see here.

Dominic Ongwen during pre-trial proceedings at the International Criminal Court (Photo: ICC)

Dominic Ongwen during pre-trial proceedings at the International Criminal Court (Photo: ICC)

The title of this post is admittedly a little misleading. In one way, of course, the prosecution of anyone by an international court for war crimes and crimes against humanity is an extraordinary, not to mention challenging, event. But in all other respects, the case against Ongwen is straightforward. In particular, the fact that Ongwen was himself abducted into the Lord’s Resistance Army at the age of 12 (the defense alleges it was at age 9.5), and made into a child soldier, before allegedly committing crimes himself against others between the ages of 27 and 30, changes nothing about whether he is legally responsible for those crimes. That Ongwen was a victim before becoming a perpetrator may be ironic and sad. It may be an interesting story. And it may be paradoxical and/or depressing. But it is not a legal defense to the crimes charged against him. At most, it may be a consideration at sentencing if Ongwen is convicted, but even here I have my doubts.

Ongwen is charged with 70 counts of war crimes and crimes against humanity, including murder, attempted murder, torture, rape, forced marriage, sexual slavery, forced pregnancy, persecution, cruel treatment, other inhumane acts, outrages upon personal dignity, enslavement, attacks against the civilian population as such, conscription of children under the age of 15, use of children under the age of 15 in hostilities, pillaging and destruction of property.

Some of these crimes are charged as war crimes, some as crimes against humanity, and some as both. Ongwen is accused of committing certain crimes himself as a direct perpetrator – specifically some of the charges of rape, torture, forced marriage, sexual slavery, enslavement and forced pregnancy – while it is alleged he committed other crimes with or through others.

At the confirmation hearing, Ongwen’s defence argued that, because he was a victim of crimes as an abducted and coerced child soldier, he cannot be convicted of the grave crimes he is alleged to have committed almost a decade after he turned 18, the minimum age of responsibility under the Rome Statute (Article 26). The Pre-Trial Chamber correctly brushed aside these arguments.

First, Ongwen argued that because he did not leave the LRA until 2015, at age 30, he must be considered a “child soldier” until that time, and therefore cannot be prosecuted. In this regard, the defense argued that child soldiers are psychologically broken down, desensitized and dehumanized. That is certainly true as a general matter, and may even be true in Ongwen’s case, but it is simply not a defense to committing crimes oneself.

To the extent that there exist protections for child soldiers in international law and the Rome Statute, they are tied to age and disappear when the individual legally becomes an adult. Further, the Rome Statute does not recognize as a defense that the accused developed a criminal state of mind because of his or her past experiences. Nor should it. It is not uncommon that defendants at international criminal tribunals, or in domestic criminal courts, have themselves been the victims of crime, or have suffered traumatizing experiences in their past.

Ongwen’s story is simply a variation on this common reality because he was apparently the victim of one of the same crimes he is alleged to have committed: the conscription of child soldiers. But even this variation is not that unusual: it is well known that many who commit abuse or violence on others have themselves been the victim of abuse or violence. Unless one’s past experiences rise to the level of duress (addressed in the next paragraph) or result in a mental disease or defect that destroys the accused’s “capacity to appreciate the unlawfulness or nature of his or her conduct,” something Ongwen has not alleged, then the law imposes an undiluted obligation to refrain from committing crimes against others. There is simply no license for the victims of crime to victimize others. Continue reading →

Posted in Child Soldiers, Dominic Ongwen ICC, International Criminal Court (ICC), International Criminal Justice, Lord's Resistance Army (LRA), northern Uganda, Symposium, Uganda | Tagged | 5 Comments