The Ongwen Chamber’s Reparations Order and the “Ongwen Exception”: A Concept of Dehumanization, Invisibility and Racism

[Beth S. Lyons is an experienced criminal defence attorney who has represented defendants before the ICTR and ICC. She is currently one of the counsel representing Dominic Ongwen.]

Introduction

Let me say from the start that I believe that victims of crimes have a right to redress and to reparations which are proportionate to the harms caused by these crimes.  This right applies to both the direct victims of crimes and also to indirect victims, including victims’ families – based on the notion of family as defined in the specific cultural context.   

In Ongwen, in which I am a Co-Counsel, my position is that all victims of the heinous crimes of the Lord’s Resistance Army (‘LRA’) have a right to the remedy of reparations.  In addition, this right extends to victims of the well-documented crimes of the Government of Uganda and its Uganda People’s Defence Force (‘UPDF’) which include allegations of genocide in Northern Uganda, during its decades old civil war against the LRA.  These allegations have never been investigated or prosecuted by the ICC, due to its policy of selective prosecution of only one side of a “conflict situation.”  

I include Mr. Dominic Ongwen as a victim of the LRA who is entitled to reparations (Mr. Ongwen’s statements at Sentence Hearing; Appeal Oral Arguments).  But throughout its Judgment and replicated in its Reparations Order (‘Order’), the Trial Chamber’s (‘Chamber’) findings and conclusions are based on an “Ongwen Exception.”  The result is that Mr. Ongwen is not “seen” as a victim of the LRA by the Chamber; the crimes committed against him and their ensuing harms are simply non-existent; and, ultimately, Mr. Ongwen – as a person – remains invisible.  At the end of the day, Mr. Ongwen is another black person who is dehumanized by the international justice system.    

The Trial Chamber’s “Ongwen Exception” is Alive and Well in its Reparations Order

I have written about the Trial Chamber’s “Ongwen Exception” in a paper entitled “If Black Were White: The Impact of Racial and Cultural Biases on the Ongwen Trial Judgment”. The Trial Judgment (paras. 906-930) recounts evidence of initiation rituals, standing rules, indoctrination and Joseph Kony’s brutal disciplinary regime in the LRA, but is silent on how these rituals and practices affected the conduct and mental state of Mr. Ongwen. As the Ongwen Defence points out, in its Appeal Against Convictions in the Judgment (paras. 440-441), the Judgment erroneously carves out an “Ongwen Exception” to the toxic, and often lethal, traumatic effects of the LRA on Joseph Kony’s abductees. The Chamber implicitly is saying that Mr. Ongwen was unaffected by the brutality and bestiality in the LRA.  

In respect to the affirmative defence of duress and the role of spiritualism, the Chamber explicitly concludes that spirituality was not a factor which contributed to the threat component relevant to duress for Mr. Ongwen (para. 2658).  Although there are references to Kony’s spiritual power over others in the LRA (para. 2643)  Mr. Ongwen is excluded from this; he is, somehow, immune or exempt, in the eyes of the Chamber.  This contradicts the evidence at trial that Kony abused spiritualism, particularly of the Acholi people (of which Mr. Ongwen is a part), to cement and sustain his power, especially over vulnerable child abductees.  

In these examples, the Judgment’s conclusion is that the culture of the LRA applied to all the other abductees, but not to Mr. Ongwen.  Hence, the “Ongwen Exception.”

The Chamber’s conclusions are even more appalling when one factors in its refusal to consider Mr. Ongwen’s abduction at the age of eight or nine as relevant to the charges, and especially to the affirmative defences of mental disease or defect and duress under the Rome Statute, Article 31.  The Chamber bluntly states that “Dominic Ongwen’s childhood experience in the LRA is not central to the issue” (para. 2592).  

In its Order, the “Ongwen Exception” is again applied by the Trial Chamber in its findings and conclusions about (1) moral harm, particularly psychological disorders and traumas and (2) former child soldiers as a category of victims.

Moral Harm

Throughout the sections on moral harm, the Order cites the LRA forcing abductees and civilians to watch others being killed (paras. 236, 242, 264, 266) and to kill others (paras. 109, 236, 264, 293, 297, 362) as examples of events which caused psychological harm to victims.   

That these harms occurred is not being contested.  But the Chamber’s omission of Mr. Ongwen as a victim of these and other harms it addresses which Ugandan victims suffered at the hands of the LRA is a “double standard” on victimhood in conflict situations. 

The Order should have recognized that the record reflects evidence that Mr. Ongwen, as a very young abductee, was forced to watch others being killed and to kill others by the LRA.  The first time he tried to escape from the LRA, Mr. Ongwen was forced to kill fellow abductees who had tried to unsuccessfully escape with him.  One of the Defence Expert psychiatrists, Dr. Dickens Akena, testified to this early traumatic incident which occurred in the first few months after Mr. Ongwen was abducted at age eight or nine:  

The trauma was related to skinning of people alive, being forced to carry the heads of severed persons and dumping them into a pit. Having the intestines of people hung up on walls. The trauma was related to bludgeoning of little children who had tried to escape and had been brought back. The events were bad. That was the context in which the traumatic events happened.

pp. 103-104

Mr. Ongwen also vividly described the event in detail at the Sentencing Hearing.  The LRA commander ordered him and another abductee to slaughter the others in their group with a knife, remove their intestines and hang their intestines on the tree and put a part around their necks.  They were then ordered to eat beans as the blood of the intestines dripped onto their plates (pp. 6-7).

A 2007 research study by J. Okello, T. Onen and S. Musisi, entitled “Psychiatric disorders among war-abducted and non-abducted adolescents in Gulu district, Uganda: a comparative study,” found that the most significant traumatic experiences were predominantly direct, i.e. forced to kill, being forced to perform rituals, being forced to torture and forced to leave home and property (p. 228).  The overwhelming majority of persons in the study were, like Mr. Ongwen, Acholi.  It recognized that the Gulu district (from where Mr. Ongwen hails) had the longest and most severe experience of the 18-year-old LRA insurgency and the largest number of internally displaced persons (IDP) camps, where about 436,239 persons are living (p. 226).   

It is simply inconceivable, based on the evidence and research, that Mr. Ongwen could not have suffered the traumatic experiences and harms that other victims suffered.  Yet, the “Ongwen Exception” ignores this common-sense reality.

Psychological or emotional harm and traumas, and references to psychological disorders, suicidal tendencies, depression and dissociative behavior are included in the Order (paras. 269, 291).  The footnotes reference the amici submissions, UN and Registry Observations.  But, in these submissions, there is no direct causal link between the harms and the victims in Ongwen.  The conclusions are not based on the actual examination of a victim by an expert psychiatrist or even a psychologist.  

I do not take issue that harms occurred.  But, even with the standard of “balance of probabilities” for reparations, there is a legal requirement of demonstrating the specific link between the harm and victim for reparations (Ntaganda Reparations Order, para. 77).

Obviously, it is unrealistic for all 50,000 victims found by the Chamber to be examined by mental health experts.  However, the Chamber relied on a sampling of 5% of the victims throughout its Order.  At least some of the 5% could have been examined to confirm or reject mental illnesses and other psychological issues.  Barring that, the Chamber should have acknowledged its lack of medical expertise (and the lack of medical expertise of the sources upon which it relied) as a limitation or shortcoming of the Order.

This approach would have been prudent, especially given that Mr. Ongwen’s mental status was one of the central contentious issues in the Article 31 affirmative defence.  The Defence Experts found that Mr. Ongwen suffered from dissociative disorders, severe depressive illness, PTSD and suicide ideation, among other mental illnesses.  The case involved a number of medical experts and reports on both sides and a Court-Appointed Expert (who concurred that Mr. Ongwen suffered from severe major depressive disorder, severe PTSD and other specified dissociative disorder), and, at the Prosecution’s request, the Chamber granted a Rebuttal Case.  Generalities about psychiatric problems and psychological conditions and traumas were not acceptable to the Chamber.   

Victim Category of Former Child Soldiers (paras. 126-127)

In the Order, the Chamber makes references to the long-lasting consequences of material and moral harm affecting child soldier victims (paras. 368-369, 414).  This reflects the idea that the harms of child soldiering are not extinguished when a child soldier reaches a certain age, for example, 15 or 18.  

This concept that the harms extend beyond chronological age was exactly the evidence of the Defence Child Soldier Expert, Major (ret) Pollar Awich, himself a former child soldier who was abducted by the National Resistance Army (‘NRA’) (predecessor to the UPDF).  He submitted an expert report on “The Enduring Impact of Being A Child Soldier” which included conclusions about the long-lasting mental health consequences of child soldiering.  Yet, in its Trial Judgment, the Chamber totally rejects Maj. Awich’s conclusions on the enduring effects of child soldiering (para. 612).   

But in its Order, the Chamber makes a 180-degree turn.  Here, the Chamber “notes the long-term psychological suffering of child soldiers from being exposed to violence during time in the bush” (para. 375).  It embraces the notion of long-lasting effects of child soldiering for the victims of abduction for the purposes of reparations, but it rejects the notion for the purposes of Mr. Ongwen’s affirmative defence.  This is inconsistent and another example of the “Ongwen Exception.”  

If you accept a premise as true, then how you use the premise may differ, depending on the context.  But consistency is about the content of the premise, and not the purpose for which you are using (or not using) the premise.  In short, the purpose does not change the basic premise.  To argue that the content of a premise can morph into its opposite, depending on the purpose or context, is distorted logic.

If the Chamber had applied the premise of long-lasting effects of child soldiering, it would have to explain why it applied – in rote fashion – the Rome Statute, Article 26, which sets the age of criminal culpability as 18.  Mr. Ongwen was convicted of crimes that took place when he was a few years beyond the age of 18.  

Ongwen is the first defendant who was prosecuted and convicted for a crime for which he is also a victim.  For the Court to show recognition, and also empathy for the human beings who suffered as child soldiers, but to not extend this to Mr. Ongwen, who was in the same position, is inconceivable.  One wonders:  How does (or even if) the Chamber “sees” Mr. Ongwen?  

The Chamber treats Mr. Ongwen as a victim-perpetrator, a construct which supports its “double standard” on victims and harms:  one for Mr.  Ongwen and one for every one else abducted into the LRA.  The “Ongwen Exception” is the mirror image of this double standard.  In effect, the Chamber takes Mr. Ongwen out of the equation of harms and victims – as if he were invisible.  This absence of acknowledgement of Mr. Ongwen as a victim is not simply an act of ignoring his experiences, but it is – at the end of the day – an act of dehumanizing him.

Conclusion

The Ongwen case is used as a vehicle to provide a remedy to victims for the heinous crimes of the LRA.  The case was always about the LRA under Joseph Kony’s leadership.  Mr. Ongwen, at his first appearance, said “. . . the charges I do understand as being brought against LRA, but not me, because I am not the LRA. The LRA is Joseph Kony, who is the leader of the LRA” (p. 17).  Yet, the ICC proceeded with this proxy prosecution against the wrong defendant.   

The Chamber’s “Ongwen Exception” in its Order is a continuation of the dehumanization and invisibility and racism towards Mr. Ongwen because his humanity, as a black man, is being dismissed and ignored.  I previously analyzed the Ongwen Judgment and argued that the Chamber was blinded by its racial and cultural biases, and that these directly impacted on its jurisprudence.  But, when I see the same fallacious “Ongwen Exception” in the Order, I do not think that my previous characterization of “racial bias” fully captures the depth of racism in the Judgment and Order.  The Chamber’s view of Mr. Ongwen is a combination of dehumanization-invisibility-racism.  That the Chamber recognizes other black Ugandans as victims of the LRA does not erase or negate its racism embodied in the “Ongwen Exception,” the lens through which the Chamber judged and convicted Mr. Ongwen and made its jurisprudence.