Former LRA Sinia Brigade Commander Dominic Ongwen faced many charges, including
those of murder, torture, slavery, pillage, persecution, forced marriage, rape,
sexual servitude, and forced pregnancy. These reported atrocities took place in
northern Uganda after July 1, 2002.
Uganda sought redress for the LRA's brutality
by voluntarily referring the case to the International Criminal Court (ICC) in
December 2003. Ongwen and four other high-ranking LRA leaders were granted
arrest warrants by the ICC's Pre-Trial Chamber in 2005.
Notably, despite the fact that Ongwen's arrest warrant was issued on July 8,
2005, it remained classified until October 13, 2005 due to the International
Criminal Court's prohibition on conducting trials in absentia. Therefore,
Ongwen's judicial proceedings did not commence for nearly a decade.
In 2015, Ongwen was apprehended and handed over to the ICC. In the year
preceding the confirmation hearing, the prosecution conducted a supplementary
investigation to collect evidence that had become available since the initial
investigation concluded in 2007.
The case is notable for addressing sexual and gender-based crimes,
differentiating between direct and indirect perpetrators, and delving into
Ongwen's childhood experience as a child combatant, which influenced the
International Criminal Court's decision not to impose a life sentence. In
addition, it was the first time the Court examined coerced pregnancy and forced
marriage in depth, highlighting the gravity and complexity of these issues.
- Is the practice of forced marriage jurisdictionally defective under
international law due to its absence from the Rome Statute?
- Was the defense of mental health properly considered in the
International Criminal Court (ICC) proceedings of the Ongwen case?
As per the Roman Statute,
"The Trial Chamber did not take into account mitigating elements including
diminished mental capacity and compulsion while sentencing Dominic Ongwen for 61
counts of crimes against humanity and war crimes committed in Northern Uganda
between 1 July 2002 and 31 December 2005."
The Chamber handed down varying
sentences for each crime because of factors including the severity of the
offense and the quantity and vulnerability of the victims as well as any
aggravating circumstances like extreme cruelty or a large number of victims.
maximum sentence was 20 years in jail, although the minimum was 14 and the most
common was 8. The Chamber voted unanimously to impose a combined term of 25
years of imprisonment on Dominic Ongwen, noting his exceptional circumstances
and the probability of his eventual reintegration into society as reasons for
rejecting a life sentence.
Sexual Crimes and Gender based crimes are Crimes against Humanity.
In this case, the defense argued that the court's authority was insufficient to
include further offenses or to interpret the Rome Statute in a way that included
offenses not explicitly stated in the treaty. They maintained that the Rome
Statute, which defines a number of crimes against humanity, did not include
forced marriage. In defense, the Rome Statute's negotiators never meant for
forced marriage to be handled differently from other sexual and gender-based
crimes like rape and sexual slavery.
The Court considered whether or not forced marriage qualifies as an "other
inhumane act" under Article 7(1)(k) of the Rome Statute. There was additional
consideration given to the rulings of other courts, such as the Special Court
for Sierra Leone (SCSL), which concluded that a forced marriage might qualify as
an "other inhumane act." This case was historic since it was the first time a
truly international criminal judicial body prosecuted a crime based on a
Forcible marriage was recognized by the Court as a special category of "other
inhumane acts," as that term is used in the Rome Statute. It entailed imposing
conjugal status on the victim, along with the related duties and penalties of
marriage, against the victim's will.
The Court acknowledged that the harm caused
by forced marriage went beyond its illegality and included significant emotional
and bodily suffering, social humiliation, and deprivation of fundamental rights.
Victims of forced marriage frequently faced physical abuse, threats, and denial
of liberty, all of which added to the level of seriousness required for a crime
under international law.
According to the evolving interpretation of international law and human rights,
the Appeals Chamber's decision to uphold the accused's convictions for
explicitly enumerated sexual and gender-based violence under Article 7(1)(g) and
for forced marriage as an "other inhumane act" under Article 7(1)(k) of the Rome
Statute is correct.
This decision recognizes the unique and substantial harm
inflicted upon victims of forced marriages within the broader context offered by
international human rights accords that underscore the significance of free and
total consent in marital difficulties. Gender-based offenses are increasingly
being included in customary international criminal law, and this view is
consistent with that trend.
Moreover, it demonstrates a progressive and
comprehensive approach to addressing and prosecuting gender-based violence,
including forced marriage and rape, in accordance with established international
human rights standards. The verdict, in this respect, represents a significant
milestone in the global effort to combat gender-based violence and sets a
precedent for the inclusion of such offenses in the purview of crimes against
Mental health in International Criminal Law
Article 31(1)(a) of the ICC Statute requires that the accused's mental
competence be taken into consideration when determining criminal culpability,
and the case of Dominic Ongwen presents serious questions regarding how this
provision should be interpreted. The fact that Ongwen was once a child soldier
captured by the Lord's Resistance Army (LRA) and is now a leader inside that
very same group makes her story unique and the situation complex.
The ICC's lack of clear criteria for the admissibility and reliability of
psychiatric evaluations as evidence is a major source of concern. In cases
involving possible mental disorders, a well-established methodology for testing
and assessment is crucial to guarantee fairness and accuracy in evaluating an
accused person's mental status.
The court's inaction on the matter has led to
uncertainty and casts doubt on the validity of the conclusions in question.
Whether or whether the court properly differentiated between Ongwen's terrible
upbringing and his actions as a mature leader is controversial.
The judges may
have overlooked the long-term psychological effect of Ongwen's childhood
conditions on his crimes since they focused on his apparent mental ability and
attack preparedness. The court's decision to reject Ongwen's claim that he
suffers from mental-illness rests on an interpretation of the evidence that may
be too simplistic to do justice to the nuances of his case.
In addition, the interpretation of Rule 145 of the ICC's Rules of Procedure
is in question since the court sentenced Ongwen to 25 years in prison without
taking into account his traumatic background or the restorative components of
justice. Judges are required under Rule 145 to take into account the defendant's
educational and economic background when determining punishment.
It seems that
the court's approach may be flawed since the judges in Ongwen's case did not
deal with these problems or provide Ongwen with more comprehensive help, such as
counseling. Dominic Ongwen's predicament is one of a kind since he went from
being a victim to a perpetrator.
Dominic Ongwen's conviction for gender-based charges is a watershed moment in
the fight against violence and crime motivated by gender across the world.
Despite the Rome Statute's absence of specific wording on gender-based crimes,
this case demonstrates the global importance of prosecuting those who commit
The conviction of Ongwen brings some degree of justice to the
numerous victims of the Lord's Resistance Army and serves as a reminder of the
necessity to acknowledge sexual and gender-based violence as crimes against
humanity. As a result of this decision, international law now encompasses a
broader variety of crimes relating to gender inequality, including forced
marriage and forced pregnancy.
The Ongwen case has also raised important discussions regarding how to handle
criminal behavior by former victims. Questions about the connection between
victimization and offending behavior are prompted by this convoluted situation.
Given the potential for further development in this area of international law,
the case necessitates a more thorough review of the legal framework for
establishing the culpability of those who have been both victims and
perpetrators. The conviction of Ongwen has far-reaching implications for the
promotion of the recognition and punishment of gender-based crimes, eventually
aiding the worldwide battle against impunity for such atrocities.
Justice and accountability have taken a giant step forward with the
International Criminal Court's decision to bring charges against Dominic Ongwen
for his atrocities against women. Despite the absence of clear prohibitions in
the Rome Statute, Ongwen's conviction for gender-motivated charges demonstrates
the Court's determination to addressing these serious infractions.
important judgment exemplifies the International Criminal Court's determination
to change and adapt to the evolving landscape of international criminal law,
notably in its understanding of the intricate link between victimization and
perpetration. The precedent set by the Court's ruling recognizes forced marriage
and forced pregnancy as distinct crimes against humanity, and it also provides
justice for many victims.
The ICC's conduct in this matter is praiseworthy, demonstrating a
forward-thinking approach to the prosecution of gender-based crimes. To improve
its effectiveness, the ICC should continue to refine its procedures for
assessing defendants' mental states, develop clear guidelines for admissibility
of psychiatric examinations, and ensure that restorative justice elements are
appropriately considered during sentencing, especially in cases where
perpetrators, like Ongwen, are also victims. In complex instances, this holistic
approach can aid in attaining more complete and balanced outcomes.
- Roman Statute, Article 63
- Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-2004-16-A, Appeal Judgment (Special Court for Sierra Leone, 22 February 2008) ("AFRC Appeal Judgement"), para. 196.
Award Winning Article Is Written By: Ms.Jaya Abirami V
Authentication No: FB439974380208-2-0224