Commander and Chief: Cultural Constraints Related to Command Responsibility

The trial of Jean Pierre Bemba, at the International Criminal Court raises important issues related to the theory of command responsibility. This is the first case at the International Criminal Court which focuses on the doctrine to establish the criminal responsibility of an accused in a case before the Court. On face value, the facts of the Prosecutions case reveal that Mr. Bemba being the President of the Movement for the Liberation of Congo (MLC) and commander in chief of its military wing, the Arme´e de Liberation du Congo (ALC)., had a particular relationship to the troops directly involved in the commission of the crimes in the Central African Republic (CAR) during 2002 and 2003. In short, through a chain of command he was directly responsible for the crimes committed by his troops in the region. The basis of this type of responsibility is codified under Article 28 of the Rome Statute, which holds that military commanders can be held individually accountable for the crimes of their troops if they fail to exercise effective control over those under their command, regardless of whether or not they are connected to the crime in question. Article 28 goes even further to distinguish between military and non-military commanders complicating the rule even further.

Exploring the Cultural Legitimacy of the International Criminal Court

In January of this year I successfully defended my Ph.D thesis entitled “The Road to Reconciliation? Optimizing the Legitimacy and Efficacy of the International Criminal Court within the African Union and in Africa.” This book will be published in 2019. The stimulus for undertaking this piece of research was based on the fact that at some point all cases before the International Criminal Court had been opened exclusively in Africa. As a result the African Union over these past years regularly threatened mass withdrawal from the ICC on the basis of selective prosecution that had exacerbated ties between both institutions. Further developments included the failed Kenyan cases at the International Criminal Court where the Prosecutor was forced to drop charges against Kenyan President, Uhuru Kenyatta for lack of evidence leading to a further deficit of legitimacy within the AU and in some parts of Africa. Other developments also saw South Africa formally deposit its instrument of withdrawal from the ICC as well as The Gambia and Burundi following suit. Given these developments and on hindsight this piece of research in my opinion has proven to be invaluable, actual and relevant over these past years.

While my book in effect explores three main deficit areas of the International Criminal Court’s legitimacy such as its institutional legitimacy, jurisdictional legitimacy and cultural legitimacy, if objectively viewed from beginning to end this piece of research weaves in aspects of culture as viewed from an African perspective that are at odds with international criminal law and thus in effect poses problems at the level of the ICC. So the book essentially focuses on the ways in which the Court can develop a better understanding of Africa, and advocates a practical approach to implementing a more culturally attuned way to enforcing international criminal justice. The issue of law and culture has never been explored from a perspective that merges most cultural conundrums that affect ICL by African scholars.  Many authors have explored the issue of culture and the law either from an anthropologically exclusive perspective or from an international legal perspective but very few have combined the interaction of these domains.  The valuable insights of authors such as Tim Kelsall, Rene Provost, Nancy Combs, David Rosen, Susan Shepler, Mark Drumbl, and Alison Rentelen has added significantly to the insights contained in this book. The relevance of exploring culture in conjunction with international criminal law and human rights has ultimately been to contribute towards a more effective and optimistic cooperation between the Court and the African Union, and generally a better cooperation with Africa as well. The end goal of my research has been to facilitate reconciliation between the Court and the African Union, and by extension reconciliation within Africa in general.

For purposes of this blog post however, I will specifically cover the issue of cultural legitimacy which I address in detail in one portion of my book. There will be two additional blog posts that will focus on the remainder of my research namely the ICC’s institutional legitimacy and jurisdictional legitimacy, but for purposes of this present discussion I will zoom in on the cultural aspects that are at odds with with International Criminal Law.

Under the section of of cultural legitimacy in my book, I start off by exploring what would be the most culturally legitimate approach that the disciplines of human rights and international criminal law could adopt from a moral and ideological perspective. Here I delve into the debate on universalism and relativism and finally concede that a third way or middle way approach might be the most viable approach to increase popular support across a diversity of cultures both for human rights and ICL. A third way approach that I advocate for is one that commits to universal standards but at the same time takes cognisance of diversity, meaning that changing societal values must be taken into account in light of existing legislation in place. At the level of the judiciary, this would require a more teleological interpretation of the law instead of only the strict adherence to the literal letter of the law meaning that judges not only would need to be diverse but would need to represent a diversity of views. In other words judges would need to be open minded and culturally sensitive enough when adjudicating on the case in question. A third way approach would therefore be indicative of a pluralistic system that does not infringe on human rights or pivotal requirements of ICL but at the same time it would need to be flexible and practical enough to accommodate cultural pluralism.

At the level of the ICC this will speak to the multitude of constituencies that the ICC currently serves and more so to those that are deeply pluralistic societies such as African states parties and perhaps even Latin American states parties. In this way pluralism will ensure that the less dominant legal culture is protected against the dominant legal culture which arguably is the Western legal culture. Should the ICC for reasons of democracy and public policy take into account the reality of cultural diversity, and thus pluralism, it could garner more public support from its African constituents while still maintaining continued support from its Western constituency. Furthermore the benefits of pluralism for an accused would in turn mean that an accused’s right to culture is balanced with his right to a fair trial if cultural proclivities genuinely play a role in his/her case.

Aside from multiculturalism and pluralism a second area I explore are cultural paradigms that are currently facing the ICC. Here I have particularly delved into procedural and substantive aspects of ICL that are at odds with culture. Procedural problems take the form, where for instance witnesses from radically different cultural backgrounds are called upon to testify at the ICC, and linguistic diversity for instance poses a problem. Similarly I explore substantive aspects of of ICL such as the criminalising of certain acts as well as the definition of certain crimes that do not fit in to the 'mould' of another's cultural understanding of the act or crime in question that do pose a problem in ICL and subsequently also at the ICC. So cultural paradigms such as the genuine belief in magic, sorcery and witchcraft, differing cultural conceptions such as childhood, familial relationships, patrimony and sexual taboos although featuring often in international criminal trials have been overlooked or neglected because they cannot match up to or reconcile  with the “rational” disposition of judges and other legal professionals. These cultural paradigms if ignored can directly impact on the fairness of the trial and the quality of judicial determinations handed down especially when the mens rea of an accused becomes questionable.

Bringing The Cultural Defences of Dominic Ongwen into Practice at the ICC

 

Dominic Ongwen at the ICC

In 2015 I dedicated a blog post to the cultural defence where I felt that cultural defences could likely fit into and within the framework of existing defences at the International Criminal Court. (see The Realities of a Cultural Defence at the ICC?) I used the Ongwen case as a point of departure at a time when Ongwen was newly arrested and transferred to the ICC. In the aforementioned blog post which highlighted portions of my newly fledged research and which over time evolved into my existing research, I argued that the defences of mental illness as stipulated under articles 31(a) of the Rome Statute and the defence of duress under article 31(d) of the Rome Statute might be employed to qualify cultural arguments that were lived and relevant realities encapsulating and inherent to the LRA context and that these realities could potentially impact on Ongwen’s criminal responsibility.

Very briefly, to sum up my arguments in that particular blog post, I suggested that Post Traumatic Stress Disorder (PTSD), which experts seriously believe, impairs the mental health of child soldiers and young combatants may eventually manifest in chronic mental health issues. This leads to the complete destruction of the defendant’s mental capacity. Based on empirical studies conducted I argued that child soldiers abducted into the LRA experienced such traumatic events and were bound to experience chronic mental issues as a result of their traumatic past. 

Under the defence of duress I also argued that cultural and spiritual influences, which were so deeply embedded in the LRA organizational culture likely, exerted undue influence or duress on LRA combatants to commit crimes not otherwise readily committed. In the post I showed that LRA’s reliance on the use of religion and tradition to instil fear, intimidation and ultimately obedience amongst their followers demonstrated the importance of religion and spirituality in Africa as both a cultural practice and a determinant of social action. My arguments suggested that as part of the motivation for young recruits to join LRA ranks assumed that they would be spiritually protected during battle through the use of immunising rituals and through direct spiritual reinforcement. I went on further to indicate that a spiritual hierarchy existed and that Joseph Kony, as its spiritual head and messenger was central in this hierarchy. According to this existing spiritual hierarchy the final authority was vested in the spirits who laid down various rules. LRA followers of Kony had to closely adhere to these rules to avoid punishment by the spirits or else face death on the battlefield. So in essence these beliefs in this spiritual order, I argued, were so strong that they arguably created control amongst LRA combatants. 

Now fast forward to 2021 where the Ongwen case has since reached a pinnacle at the ICC. The final judgment was rendered at the beginning of February of this year and the Trial Chamber subsequently found Ongwen guilty of 61 counts of crimes against humanity and war crimes committed in Northern Uganda between July 1, 2002, and 31 December 2005. Ongwen has been convicted of 19 counts of sexual and gender-based crimes including forced marriage, torture, rape, slavery, enslavement, forced pregnancy, and outrages upon personal dignity. 

 

Most interesting in the Ongwen case has been the Defence’s case, which has utilized the same line of defences, mental illness and duress which I proffered in 2015, long before the case even came to trial. Their use and reliance on expert witness testimony to verify their lines of argumentation has not only highlighted the complexities of this case but has started to revolutionize the way cultural evidence has been presented at the ICC or at any international criminal tribunal or court for that matter. Theirs is a novel approach placing many of my legal reasoning’s on the cultural defence in this particular case into practice and testing these at the ICC.  Summed up the Defence case highlighted four main aspects believed to be crucial for the Judges consideration. These were:

Mr Ongwen is a Child Victim of the LRA

Firstly the Defence held that Ongwen is a victim, not a perpetrator. They argued that he was abducted as a young child by the LRA and brutalized for almost three decades before he was able to voluntarily surrender to the military. As result they argued that Ongwen suffered long-term mental destruction, which essentially meant that there was destruction of his mental abilities and thus his mental capacity. Adjacent to this they added that Ongwen had the mental age of a child and that although he had “chronologically grown into adulthood he had mentally remained a child.”(I also argued this in a recent article as well). Through this line of reasoning the Defence averred that Ongwen’s status as a child/victim should not be overlooked by the Trial Chamber. They reiterated throughout the proceedings that Ongwen must be viewed as a victim over a perpetrator contrary to the Prosecution’s arguments. They also argued that the Prosecution failed to give any empirical evidence on how a child soldier transcended from victimhood into a perpetrator.

The Structure of the LRA and Mr Ongwen’s Status

Another point that they made was that the LRA was not a conventional army. Rather than rely on the hierarchical command structure of the LRA, Kony relied more readily on the command structure of the Council of Spirits, which in their view was departmentalized. They held that the Prosecution did not prove a structure and hierarchy that placed Ongwen in a command position. These arguments are very similar arguments, which I also made previously on the issue of command responsibility in the Bemba case as well some years back. 

The Perversion of Acholi Culture by LRA Spiritualism

Ongwen’s Defence went on to argue that the rules, regulations and orders on policy matters were established and issued by the Spirits through Kony as its medium. According to them Kony viewed himself as an Acholi nationalist, who was sent by God to save the Acholi. There was a widespread and firm belief that the orders of the Spirits that Kony gave were mystical. These rules played a restraining function and gave a sense of protection against harm and thereby tied the individual (Ongwen) further into the movement. The only way to survive in the bush was to follow the edicts of the Spirits. Everybody in the LRA believed Kony’s spiritual attributes as a messenger of the omnipotent and omnipresent God. Every commander – division, brigade, and unit – knew that he or she had no choice but to implement Kony’s orders. The Ten Commandments and spiritualism in the LRA were effectively used as the main tool of control by Kony to exact fear throughout the LRA. In this way the Defence attempted to divert responsibility from Ongwen and append this responsibility onto Kony.

The stand-alone nature of the case

Finally they submitted that what makes this case stand out is its peculiar factual situation, shrouded in spiritualism and the mystical. They held that the role of spiritualism is a novel issue in international courts and tribunals. Its significant impact on the conduct and actions of groups like the LRA has never been litigated before. Spiritualism in the LRA was the main tool used by Kony to remain on top of the LRA. It is in this context that spiritualism and duress as its direct consequence can be assessed and understood as the main drivers of the conduct of the LRA and the victimization of Ongwen. The Defence submitted that the absolutism with which Kony ran the LRA, using spiritualism, is a stand-alone experience in international criminal law, implying that it would necessitate a cautious and balanced response from the Trial Chamber. 

Conclusion

Despite the aforementioned pleas made to the Trial Chamber by Ongwen’s Defence Team, the two affirmative defences that they raised, namely mental disease and duress were out rightly rejected. The defences raised were not necessarily met with the proportionality that could have been applied in this particular case by the Trial Chamber based on Ongwen’s particular and complex background. However, this was still a unique opportunity for the Trial Chamber to engage on these issues nonetheless. It could however have been a perfect opportunity to set a novel and unique precedent on some of the more complex issues that continue to plague the ICL, namely Ongwen’s status as both victim and perpetrator by recognizing and accepting the complexities surrounding child soldiers and their culpability, the significance of raising cultural defences when and if they are applicable and relevant in a particular context, the necessity of engaging more meaningfully and less mechanically on issues where context specificity influence or are at odds with international legal doctrine. The Defence case in Ongwen has however set precedent for the use of a moderate cultural defence at the ICC and that in itself is a significant departure at the ICC and in international criminal law.

Posted by Ingrid Roestenburg Morgan