Guilty on 61 Counts – What the Ongwen Verdict Indicates about the Limitations of Individual Criminal Responsibility for Mass Atrocities

[Liana Georgieva Minkova recently defended her PhD at the Department of Politics and International Studies, University of Cambridge, UK, and holds a full award from the Arts and Humanities Research Council (AHRC) Doctoral Training Partnership.]

The Ongwen trial judgment was delivered on February 4^th at the International Criminal Court (ICC), setting a number of important precedents for the Court: the first conviction resulting from the investigation in Northern Uganda which started 17 years ago, the first guilty verdict for the crimes of forced marriage and forced pregnancy at the Court, and the conviction for the most numerous list of charges at the ICC so far – 61. The Ongwen judgment comes at a key moment for the Court – almost two decades after starting operation, the ICC’s modest record of successful prosecutions (which up to early 2021 comprised of only four convictions and four acquittals for core international crimes) has provoked comments that the Court was ‘in trouble’. Against this background, the Ongwen verdict, albeit still open for appeal, can be perceived as an indication that, despite the hurdles associated with apprehending suspects and collecting evidence, the Court is still able to bring to justice the perpetrators of international crimes and that international criminal law can indeed function as a metaphorical ‘sword’ for protecting the victims of human rights abuses.

But a closer look at the judgment, examined in the context of previous ICC judgments, casts a shadow over such optimistic prognosis. The Ongwen verdict may have signalled that the perpetrators of mass atrocities can be punished in accordance with the law, but a more detailed analysis of the reasoning behind the judgment suggests that the type of perpetrators that can be brought to justice at the ICC is significantly limited. More specifically, the ICC’s trial record thus far indicates that the Court is more likely to convict mid-level commanders associated with insurgent groups (e.g. Katanga, Al-Mahdi, Ntaganda) and acquit high-level political figures (e.g. Bemba, Gbagbo). The Ongwen verdict confirms this trend.

While scholarly analysis often looks to the complex political environment of the ICC to explain the limited pool of defendants, in this post I do something different, namely, to analyse this tendency of convicting mainly mid-level insurgent commanders by looking to the way in which the individual criminal responsibility of the defendants is assessed at the ICC. More specifically, I identify a trend at the ICC of looking for evidence of the accused’s direct participation in the hostilities and their proximity to the scene of the crimes. This post in no way argues that either the convictions, or the acquittals delivered at the Court were unjust. Instead, it seeks to draw attention to the practices of assessing individual criminal responsibility at the Court and raise questions about the implications thereof for international criminal justice.

Collective crimes, individual responsibility

International criminal justice is concerned with the ‘most serious’ crimes and with the ‘most responsible’ individuals that stand behind those crimes. The Nuremberg tribunal was established to try the ‘major war criminals’ of the European Axis. Similarly, the International Criminal Tribunal for the Former Yugoslavia (ICTY)’s completion strategy envisioned that ‘the most senior leaders suspected of being most responsible’ for the crimes in the Former Yugoslavia would be held accountable at the international tribunal, while the accused of lesser significance were to be transferred to domestic courts. Indeed, it seems intuitive that the individual persons pulling the strings of mass atrocities – the so-called ‘masterminds’, ‘spiders in the web’ or ‘armchair killers’ – are the most responsible for those crimes. The ICC judges have also recognized that the perpetrator’s blameworthiness for mass atrocities is often perceived to rise ‘in tandem with a rise in the hierarchy’ (Katanga and Ngudjolo Confirmation of charges decision, para. 503.).

The problem with accomplishing the goal of holding accountable senior figures for international crimes, however, is that due to the scale of the crimes, the number of involved actors and the fact that leadership figures are often removed from the crime-scene, the link between those persons and the alleged crimes is often tenuous. Identifying a clear link between high-level officials and the crimes on the ground was the main hurdle that the ICC prosecutor faced in two high-profile cases at the Court – Bemba and Gbagbo and Blé Goudé. Jean-Pierre Bemba Gombo, former DRC vice-president and leader of the Mouvement de libération du Congo (MLC), was acquitted on appeal after the Majority of the judges remained unconvinced that, as a ‘remote commander’, Bemba had had the material capability of repressing the crimes committed by his MLC subordinates during their mission in a foreign country (Bemba Appeals Judgment, para. 171). Similarly, in Gbagbo, the first case against a former head of state, the prosecutor was unable to establish beyond reasonable doubt that the former Ivoirian president had enjoyed control or had personally contributed in any other way to the violence committed against perceived supporters of his political opponent in the aftermath of the 2010 elections in Côte d’Ivoire (Gbagbo and Blé Goudé Trial Decision).

By contrast, Ongwen is a particularly clear illustration of the type of cases in which the ICC prosecutor is able to meet the strict standards of criminal law for establishing the accused’s criminal responsibility. An LRA battalion commander, subsequently turned brigade commander, Dominic Ongwen was involved in the everyday military operations of the organization, which enabled the prosecutor to identify a clear link between him and 61 counts of crimes. The judges observed that Ongwen had personally issued threats and enforced harsh disciplinary measures among the troops under his control, which ensured total compliance with his orders (Ongwen Trial Judgment, paras. 131-132, 2856, 2858). Unlike high-profile figures and civilian leaders, in the case against Ongwen there was also evidence of the accused’s participation in the meetings devising the attacks (Ibid., para. 2861), as well as of Ongwen’s direct orders to the troops to commit crimes against the civilian population, including looting, abducting people, and burning down their camps (Ibid., paras. 2863, 3010). In fact, the judges found that Ongwen had been present during some of those attacks (Ibid., para. 2862). The Trial Chamber was also presented with evidence that Ongwen had himself distributed abducted women to serve as ‘wives’ for the soldiers of the brigade under his command (Ibid., para. 3093) and abducted children to supplement the LRA troops (Ibid., para. 3110).

Ongwen’s proximity to the crimes also enabled the prosecutor to establish beyond reasonable doubt one of the trickiest aspects of criminal responsibility – mens rea, or the requirement that the criminal conduct must have been committed intentionally. Evidence that points to the accused’s state of mind is arguably harder to find than evidence of their actions. For example, in 2009 the ICC Pre-Trial Chamber dismissed the allegations that Bemba had intentionally used his MLC troops as tools to commit crimes in the CAR, on the grounds that while Bemba ‘may have foreseen the risk of occurrence of such crimes’ when sending his troops on a mission, the evidence was insufficient to establish that the accused had been certain of the commission of those crimes to the extent that his conduct may be understood as intentional (Bemba Confirmation Decision, para. 373). By contrast, Ongwen’s involvement in the LRA’s day-to-day criminal practices made it easier for the judges to conclude that the crimes he was charged with were intentional. A particularly important indicator for the judges in that regard was the evidence that Ongwen had personally committed some of the crimes, which he had then also ordered his troops to commit, such as the abductions of women and children (Ongwen Judgment, paras. 3097, 3113). Furthermore, intercepted radio communications indicated that Ongwen had personally communicated the results of particular attacks to Kony and the LRA leadership (Ibid., paras. 2911, 3010) and that the defendant had taken responsibility for some of those attacks (Ibid., para. 2963). Based on all of the available information the judges concluded that Ongwen’s actions were of such nature that they ‘could only have been undertaken intentionally’ (Ibid., para. 2865, emphasis added).

Overall, the analysis of the judges’ findings on Ongwen’s criminal responsibility confirms the preference of ICC chambers for evidence of the accused’s direct personal participation in the criminal conduct. This trend is also observable in other ICC judgments from the past few years. In Ntaganda the Trial Chamber paid special attention to the evidence that the accused had personally committed some of the crimes (Ntaganda Judgment, para. 36), which was perceived as an act of official approval of the commission of such crimes by his subordinates (Ibid., para. 105). In Al-Mahdi the judges found the defendant guilty based on video footage of the accused’s personal participation in the destruction of cultural heritage in Mali (Al-Mahdi Judgment and Sentence, para. 40) and Al-Mahdi’s own admission of his guilt (Ibid., para. 43).

Food for thought

The ICC’s trial record may seem like a glass-half-full for the proponents of international criminal justice. Nobody, even the most ardent human rights advocates, does not claim that the ICC should have a 100% conviction rate. In criminal law, a certain number of acquittals indicates that the that the system is functioning efficiently and independently. A necessarily element of the liberal trial is that the outcome is uncertain, otherwise the entire process would turn into a show trial for the masses. Indeed, this post in no way suggests that the discussed acquittals were unjust or legally unsound.

Rather, the issue that merits consideration is that the ICC case record, to which the Ongwen judgment is the most recent contribution, indicates that a specific type of actors is more likely to end up convicted at the ICC, as a result of the difficulties of disentangling the complex web of individual contributions to mass atrocities. Neither Ongwen, nor Al-Mahdi were among the ‘big fish’ of international suspects. Nor for that matter was Ntaganda, who eventually rose into prominence in the conflict in north-eastern DRC, but was once dismissed as a suspect by the Court for not being ‘a core actor’ during the specific time-period covered by the charges for which he was eventually convicted at the ICC (Situation in the DRC, 2006 Arrest Warrants Decision, para. 87). The Ongwen Judgment tried to emphasise the importance of the defendant within the LRA, thus, implicitly signalling to the Court’s audience that the ICC, as the institutional embodiment of international criminal justice, is able to hold accountable the most responsible persons for the most serious crimes. The judges noted that during his time at the LRA, the Ongwen had not been ‘under the absolute control of Joseph Kony’ and that the defendant’s situation was ‘not analogous’ to lower-ranking soldiers who were constantly under threat of death or severe punishment (Ongwen Judgment, paras. 2590-2591). Nevertheless, even if Ongwen had climbed up the LRA hierarchy over the years, which might have made him accountable for the actions of the troops under his command, during the period covered by the charges Ongwen had remained the lowest ranking member among the five LRA suspects against whom the ICC issued arrest warrants in 2005. In fact, even though he now stands out as the person who have been convicted on the highest number of charges at the ICC, prior to his apprehension, Ongwen triggered little if any interest as an ICC suspect.

This is not to suggest that mid-level commanders do not bear criminal responsibility and that only the leadership figures, or the ‘masterminds’, should be held accountable for international crimes. But there are important implications of the observed tendency to find guilty mainly a specific type of perpetrators – those who had been close to the scene of the crimes. A conviction at the ICC is not akin to a conviction at any other international court. Because the ICC presents the only permanent institution of its kind, the product of decades of advocacy by lawyers, NGOs and human rights activists, the defendants at the Court are inevitably perceived by the international community as the worst offenders of humanity. In fact, that stigma is often attached to the suspects at the time of their indictment, long before the verdict is delivered. Consequently, it matters who stands trial at the Court – not only for the individual defenders, who may potentially end up bearing disproportionate stigmatization, but also for the aspirations of obtaining international criminal justice, which may never be accomplished if the permanent international criminal court is only capable of establishing the criminal responsibility of those persons who have been directly involved in hostilities.

Finally, while we are often used to think of international power politics as the main impediment to holding a broader set of perpetrators accountable at the ICC, the analysis of the Ongwen verdict alongside other ICC judgments, suggests that there may be another reason for this, apart from the Court’s dependency on state cooperation to apprehend suspects and collect evidence. That other reason is rooted in the dilemma of attributing individual criminal responsibility for crimes, which remain inherently collective at heart. Criminal responsibility is different from other forms of accountability, such as moral or political responsibility for being somehow complicit in the normative climate that enables mass atrocities. Criminal responsibility cannot be attributed by mere association with the conduct or the wrongdoers. Rather, it requires evidence of a concrete physical and mental link between the accused and the crimes.

The limited pool of defendants who appear to be most likely to be convicted pursuant to a rigorous criminal law process (as the Ongwen case aptly illustrates, mainly persons directly involved in daily warfare) questions the lofty expectations of the role that an international criminal court may play in delivering justice for mass atrocities. The observed trend of convicting mid-level military commanders raises the question for human rights advocates whether, to borrow a term by Markus Dubber, international criminal justice may require not ‘international criminal law’, but rather a ‘global moral police’ that would capture both the collective dimensions of ‘guilt’ in relation to mass atrocities and the moral, political, and humanitarian aspects of accountability for those crimes, which may easily fall outside the scope of legal liability.