The Realities of a Cultural Defence at the ICC ?

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Recently much has been written on the capture and transfer of Dominic Ongwen to the International  Criminal Court. Issues on his status as both victim and perpetrator has been mostly debated upon as he represents a complex case having being kidnapped at the age of 10 years and then subsequently trained within a setting of extreme brutality to become an efficient killing machine within the higher echelons of the Lord’s Resistance Army. While the debate continues on how his criminal responsibility, considering his status, should be addressed, not much attention has been paid to Ongwen's defences, which may rest on various pillars as laid out under article 31 of the Rome Statute. For purposes of this discussion, available defences will be limited to a few. Understanding the larger circumstances warranting the use of a specific defence means also understanding the circumstances under which the LRA operated hence their exact laws and rituals, and an understanding of Ongwen’s background and the circumstances surrounding his subsequent abduction and way of life.

Important to remember is that Ongwen was abducted at the very tender age of 10 years. According to empirical studies conducted on child soldiers, it has been established that part of the general practice of the LRA has been to kidnap individuals between the ages of 11 to 24. Whether children are abducted or join the ranks of the LRA voluntarily their introduction to the LRA way of life will initially include the forced murder of an individual or individuals whether they be family, friends, or any other person as part of their initiation into the group. Thus, their initial introduction to the LRA ‘way of life’ is initially marked by trauma and fear perpetuated continuously through repeated and similar cycles of violence igniting further fear and trauma.   

One argument that is made in this regard, is that any first or initial trauma experienced may serve as a precursor to post traumatic stress disorder, which some experts believe seriously impairs the mental health of such children and is such a catalyst of post traumatic stress disorder. Traumatic events spurring this development and closely associated to the experiences of young combatants, according to empirical studies conducted worldwide into issues of child soldiering, by Schauer and Elbert, include “skinning, chopping and cooking dead bodies, eating human flesh, forced mutilations and serious injury to others, physical assault including being kicked, beaten or burnt, sexual assault and rape,” as well as a range of others listed by the authors, who have studied the psychological implications of trauma on the development of child soldiers.

In the view of Schauer and Elbert the fact that post traumatic stress disorder might manifest in chronic mental health impairment means that in situations of serious or imminent danger, fear responses are heightened and could result in a numbing of the senses, further increasing risk taking behavior, depersonalization, defiance, recklessness and aggression. Where the trauma is recurring it is most likely that the person may suffer from Post-Traumatic Stress Disorder, immediately and more intensely especially, if the trauma is cumulative. This raises important flags under the defence of mental incapacity where it can be shown that the acts of recurring violence took place when the defendant was in a dissociative state, resulting in the failure of a defendant to appreciate the criminality of his acts or change his conduct so as to comply with the law. Furthermore, PTSD has already in the past and nationally, been offered as basis for criminal defenses including insanity, unconsciousness, self- defense, diminished capacity and sentencing mitigation. (interesting to refer to Omri Berger article in this respect)

According to Article 31(a) of the Rome Statute a criminal defence based on mental illness comprises a the scenario where a “person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.” According to Sliedregt, an ICC defence based on mental illness will demand complete destruction of the defendants mental capacity, a substantial mental capacity in other words will not qualify but will only feature as a mitigating factor when determining the sentence. Thus it will need to be established that there was complete destruction of the defendant’s mental capacity at the time of the commission of the criminal act in question in order to invoke a successful defence in this regard. Like most cases where mental illness is proffered as defence, qualifying such a defence is difficult and remains a challenge where most of the time, the testimony of mental health experts are the main evidence relied upon.

Ongwen in the Battlefield

Another defence that might be employed is duress. Part of the LRA organization and strategy also comprises a heavy or strong reliance on the use of religion and tradition to instill fear, intimidation and ultimately obedience amongst their followers.  Various studies from various authors have demonstrated the importance of religion and spirituality in Africa as both a cultural practice and a determinant of social action. (See Green, Titeca, Ellis, Ter Haar and Wlodarczyk). According to Nathalie Wlodarczyk the struggle of the LRA against the Ugandan government is framed specifically in the use of spirituality in order to mobilise support and legitimacy for it cause.  The motivation for young recruits to join LRA ranks assumes that they will be spiritually protected during battle. This is usually guaranteed through the use of immunizing rituals and through direct spiritual reinforcement. Wlodarczyk holds that spiritual protection in the ‘African’ context (through reliance on case studies on the Holy Spirit Movement and LRA and examples from Liberia, Mozambique and Zimbabwe) are offered through the form of rituals, charms potions rituals and codes of conduct. In the case of immunizing rituals, new recruits are “sprinkled with holy water and their bodies smeared with shea butter oil and white ashes.” (this ritual is known as Moo yoo). Such rituals promise that on the battlefield bullets will turn into water, miss their targets and on the level of certain ranks make soldiers invincible. Furthermore, spiritual protection to soldiers are grounded in the belief that fighters of the LRA once killed will “briefly stop over in purgatory and return to the battlefield to support those combatants still fighting.” This type of religiosity genuinely perpetuates obedience and fear amongst recruits especially since as Wlodarczyk establishes, it creates a link to the duty to fight amongst LRA members, and thus indirectly establishes a hierarchy.

Central to this hierarchy is Kony, as spiritual head claiming to be possessed by various spirits. These spirits lay down the rules and if members adhere closely to them they will avoid punishment by the spirits, which may result in the final punishment of death on the battlefield. According to Titeca there are many instances and accounts where LRA combatants are afraid to escape therefore carry out spiritual orders for fear of reprisal by the spirits. Reprisals allegedly take the form of LRA combatants no longer being able to move upon their decision to escape, being found by the spirits when trying to escape, and the spirit conferring power of Kony to read the minds of his followers.

The impacts of the aforementioned spiritual beliefs are numerous. 

However, two relevant points suffice for discussion here. First, belief in this spiritual order creates control amongst combatants. According to Titeca, abductees realize that they have to only adhere to the spiritual rules if they themselves want to survive; non-adherence of rules would mean sanction or even worst death of the person, invoked through the spiritual realm. So in other words, it is clear that there is undue pressure on members to comply or else face attack from spiritual forces. A second reason is that this belief constructs a perception of fearlessness and omnipotence on the battlefield enabling LRA combatants to walk unarmed on the battlefield and not to take cover since it is believed that God will protect them on every side. Those considering hiding are confronted with the threat that fired bullets will find them, no matter where they attempt to hide. Thus they should take up arms and submit to both Kony and the advice of the spirits if they are to survive.

Keeping this scenario in mind and returning to the defences as stipulated articles 31 of the Rome Statute, it might be possible to consider the defence of duress in this regard. Article 31(d) stipulates a mixture of two types of duress, duress as a choice of two evils and duress as compulsion. According to the defence of duress, three main elements may be identified: a threat of imminent death or serious bodily harm against the person concerned or other person; a necessary and reasonable reaction to avoid that threat; and the intent not to cause greater harm than the one sought to be avoided. In all three instances the central thread that needs to be established is firstly a genuine and rational belief in such a spiritual order and secondly that such a spiritual order served to control, motivate and intimidate combatants. According to Titeca, Richards, and Kastfelt, this is not implausible at all. These authors support the rationality of religion in war, and support the idea that belief in the religious and the spiritual in fact serves strategic and rational functions. It would therefore not be so outlandish to make the connection to duress where compulsion through religion spurred criminal behavior. Nevertheless, it will still remain a challenge to qualify the proportionality requirement in the form of the reasonable person test if one considers the excessiveness of force used by the LRA, as evidenced from the brutality of the crimes committed, let alone prove or provide support for the rationality of such spiritual beliefs where the theory of rationality is grounded in Western understandings of the concept.

Along similar lines and in the same vein another option is to consider the use of other defences which are and might still be allowed under article 67 of the RS. A non-statutory defence in this regard could be a cultural defence. According to Alison Renteln culture should be able to be presented as defence in certain and limited circumstances and instances where it can be shown that cultural factors genuinely played a role in the circumstances involved.  It might also be used as a mitigating factor during sentencing. This no doubt is a difficult and subjective determination for judges to consider, Renteln has thus proposed Judges use her three-step test in such situations. The following questions must be considered:

Is the litigant a member of the ethnic group?

Does the group have such a tradition?

Was the litigant influenced by the tradition when he or she acted?

Dominic Ongwen recently photographed at the ICC

The biggest controversy surrounding the cultural defence is that it might be misrepresented or abused by defendants. But wouldn’t that be the case for most defences.? However, to overcome such hurdles Renteln proposes that judges be better equipped to deal with these issues by involving experts and exercising discretion whether to accept or not accept the arguments made by the defence. Given, the already strong discretion accorded to judges, to already decide on the numerous defences presented such mental illness, duress etc there is no reason why a cultural defence can also not be included and deliberated upon in the same way. Renteln suggests that the cornerstone of a criminal trial is the fair trial rights of the defendant, which includes the presumption of innocence. Fair trial rights, she suggests, should be balanced with the right to culture, both as important human rights, in the assessment of accepting or rejecting a cultural argument. Of course the context specificity of each case must be taken into account and within such a determination establishing which human rights supersede the right to culture. This is food for thought, especially when cultural motivations and arguments are ignored or glossed over, despite featuring explicitly in the case concerned. Avoidance might have the effect of jeopardizing the truth finding process, as well as compromising both accurate and just judicial determinations.  

Posted by Ingrid Roestenburg-Morgan