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

Lets Dance: From South Africa’s Toyi-Toyi to New Zealand’s Haka for Impacful Protest

Traditional Maori's performing the Haka 

Following in the footsteps of a previous blog post, this blog article will continue to examine and explore traditional modes of activism and resistance in this instance expressed through dance. Dance has served as a mode of popular resistance, protest and activism in various contexts. In this post the toyi-toyi dance well known in the South African context and the Haka dance, a traditional dance used by the Maori of New Zealand will be discussed highlighting this powerful form of protest and activism. Both forms of dance once served and continues to serve as effective conduits of protest and political resistance in South Africa and also New Zealand. This blog article will examine the cultural relevance and effectiveness of this mode of resistance in both highlighted contexts and will demonstrate the impactfulness of powerful forms of art such as dance in these specific two instances.

Description of the Toyi-Toyi and Haka

First it is important to visualize or depict how both dances are performed. Toyi-toyi is a rhythmic dance that can be best characterized by stomping and by jumping up and down in shifts of one leg at a time. It closely resembles a type of slow jogging on the spot with high-kneed foot stomping. The dance is usually accompanied with chants and confrontational songs. The Haka similarly is dance where a dancers pound their chests in unison with one another, while stomping their feet and jumping up high. It features a number of gestures that include threatening eyes and the poking out of tongues by the dancers performing the dance. 

Historical and Cultural Value of Both Dances

The historical value of the toyi-toyi to South African society find its roots ironically enough in Northern Africa with Algerian roots. Toyi-toyi is thought to be an Arabic phrase and has been associated with a military drill and training during the liberation of Algeria. The dance moved down to Tanzania and Zambia and then to Zimbabwe all the while changing its character and taking on a more nationalist and loyalist character. It eventually made its way to South Africa through South Africa’s main liberation army Umkhonto weSizwe  (Spear of the Nation), whose soldiers shared military camps with Zimbabweans and Zambians and where it was eventually adopted and learned. Its final destination led to its spread in the townships of South Africa when the soldiers of MK returned to their homes in South Africa. Its popularity was found mostly with young marginalized South Africans who could link their struggles and protests against apartheid to the liberation struggles of others. 

Toyi-Toyi being performed during anti-apartheid protests

The Toyi-toyi brought with it a new type of militarization as protests in South Africa became more hostile and confrontational. Its intimidating character resembled a war dance and it was used as an effective weapon against the then South African racist regime. Its aim was to instill fear in the heart of the enemy and even though most protesters were often unarmed. Much of the time protesters performing the dance succeeded in creating an intimidating environment as evidenced by the apartheid government escalating the use of violence based on the growing unrest in the country that the dance facilitated. The toyi toyi must therefore be seen as playing a pivotal part through protest in the overthrow of the apartheid regime in South Africa.  In current day South Africa the toyi toyi continues to be used in protests and is still used to indicate discontent but it is also seen as a celebratory ritual and joyous dance. 

If the toyi-toyi is synonymous with South Africa, then the Haka is synonymous with New Zealand. Its roots stem from the Maori an indigenous people of New Zealand. The Haka was performed by different Maori tribes as a war dance and was used to intimidate and scare opponents. It was a cry to the Gods to gain victory over the enemy and to receive courage and strength during battle. The dance while often viewed as intimidating must also be seen as preparation for battle and the challenges ahead. Over time the Haka has also taken on a celebratory nature and it has been used to celebrate weddings, births and other important occasions.  Most recently the Haka made news during the protests following George Floyd’s death where a New Zealanders performed the dance in solidarity and in unity with the Black Lives Matter movement. The strong linkages with Maori spirituality faciliatates a call to the ancestors to endow strength to the dancer in order to intimidate his enemies and stand in protest and solidarity with those most aggrieved. 

Commonalities for Impactful Protest

The commonalities between the ToyiToyi and the Haka are striking. Both dances pay homage to the history and importance of dance in protest and both are drivers of meaningful change. Both dances exude the pride and fearlessness of people confronting inequalities and pursuing their human rights and freedoms in the face of authoritarian governments and unjust laws. Through dance, society’s most marginalized can demand justice and equality in a manner that is bold and confronting yet fundamentally non-violent.  Nothing is more universal, visceral and primal and which can emphasize human emotions so eloquently than dance. What other art form can use the human body in a way that provokes and confronts social injustice so compellingly?

Posted by Ingrid Roestenburg-Morgan

Minority Rights Challenged by the Legally Pluralist Coexistence of a Nation’s Civil Law with Islamic law: A Case-study of Greece

This blogpost serves as a summary of my LL.M thesis which concerns the problematic coexistence of Islamic Law with Greek Civil Law regarding the protection of the Muslim minority in Western Thrace in Greece. The aim of this post is to emphasise the importance of the conceptual understanding when confronting legal issues that entail a different set of values and political complicacies. The coexistence of two or multiple legal regimes within a country can raise several legal issues. For instance, the co-presence of Greece’s civil law with Sharia underlines precisely the judicial controversy and the differences between the Islamic values and those of the Greek Constitution and human rights law. Let us not forget that Greece is also a member State to several international human rights conventions and has the responsibility to respect, protect, and fulfil its human rights obligations. Notably, a multiple set of different legal frameworks and regimes are entangled for the protection of the Muslim minority’s rights. 

The Molla Sali v. Greece challenged the compatibility of a religious community’s separate legal status with the principles enshrined by the European Convention on Human Rights (ECHR). The case accentuated the debatable compatibility of Sharia with the ECHR principles. The applicant of the Molla Sali v. Greece case belongs to the Muslim minority of Western Thrace in Greece to which the applicable legal regime for inheritance and family issues is Sharia. Molla Sali complained that the implementation of religious adjudication to her issue by the Greek Court of Cassation deprived her of her right concerning the protection of property.

The outcome of the case has a significant impact on the parallel operation of Sharia law and the Greek Civil law for the minority. Before the case of Molla Sali, Sharia was compulsorily applied for the settlement of private law issues. The dual existence of these legal systems in Greece as a distinct setting for the religious minority in Thrace is a result of numerous international treaties between Greece and Turkey. The most important legal text that sets up the legal framework for the protection of the minorities in Greece is the 1923 Treaty of Lausanne. It is the most determining legal document regarding the legal status of the minorities in the country.  The Greek legislation’s interpretation of Articles 42 and 45 of the Lausanne Treaty is of great significance. The mandatory application of the Sharia law for the Muslim minority is nowhere explicitly provided in the Treaty. Instead, it mentions that the Government needs to adopt appropriate measures for the minority’s interpersonal disputes on family and inheritance law following the customs of the minority. Thus, the establishment of the Islamic adjudication system for the minority is viewed by the Greek Court of Cassation as stemming from international obligations set by the Treaty.

The European Court of Human Rights (ECtHR) did not accept the Greek Government’s arguments that the mandatory implementation of Sharia was to protect the distinctive characteristics of the minority according to its obligations set from the Treaty of Lausanne. The Court reiterates in its Judgement that according to its case-law, freedom of religion does not entail the requirement for the Contracting States to establish a specific legal system for the protection of the special status of a religious community that requires particular entitlements. It, therefore, did not commend that a State proceeded to the establishment of a religious regime just to secure the distinct needs of the minority. 

Moreover, the ECtHR in its Judgement in the Molla Sali v Greece case did not address the debatable compatibility of Islamic Law and Human Rights Law despite its opportunity to do so. Considering the Court’s general approach according to its previous case law towards Sharia (Refah Partisi v. Turkey), no determination is given on to what degree Sharia’s operation in Greece conforms with the Convention. At the same time, the Greek State was not requested by the Court to abolish the enforcement of Sharia for the minority. What the Court did was only to condemn the mandatory character of Sharia’s operation “but not Sharia itself.”

Consequently, the case of Molla Sali v. Greece introduced another version of the legal parallel regime in Greece. Its outcome is Sharia’s optional implementation according to the reformed Law in Greece. Precisely, in case of a disagreement between the involved parties, the dispute will be settled by civil law. The right to exit the minority’s legal order and the right to choose the civil law instead of Sharia highlights the right to self-identification, which agrees with the ECHR. Therefore, the new law seems to have ended a state of discrimination for the minority in Thrace. However, the complicacy in this case is that the individual choice of a minority member may conflict with the minority’s identity with religious law.

The automatic dispute resolution in cases of disagreement by the Greek Civil Code undermines the weightiness of Sharia within the context of Islam and the customs of Muslim communities in general. It needs to be stressed that even the optional implementation of Sharia law could undermine the religious legal system of the minority and its customs. Other members who identify themselves with their religion and its sacred rules will probably feel side-lined by the indirect imposition of civil law. Considering that there is no delivered Judgment on the new law yet, the religious freedom’s individualistic approach will be put under test in the future.

Finally, aside from the case’s legal problematic, a contextual understanding is essential. It must be underlined that concerns involving the minority in Thrace have often been put in the middle of bilateral political disputes between Turkey and Greece. The Greek Government’s hesitancy regarding the law’s modification for the Muslim minority’s interpersonal disputes settlement, before the case of Molla Sali, is partly due to those political sensitivities. Any change in the applicable law in Thrace could incite Turkey’s demand for “changes to the Lausanne Treaty’s” provisions, which are ongoing and not limited to the Muslim minority’s situation.

In conclusion, apart from the legal assessment of the case, a more conceptual and anthropological approach as an assessment tool, could have been a solid base for the peculiar situation in Greece. This case could have highlighted the multi-faceted role of minorities regarding the stabilization of bilateral State relations. Potentially, it could also have illustrated how the human rights mandate is applied to such complicated conditions. Especially, the implementation of law in conjunction to the complexity of internal and external political situations of States. 

  Source: Greece: Status of Minorities | Law Library of Congress (loc.gov)

Guest Post by Niki Manafa. Niki is a postgraduate LL.M Student of Utrecht University's Public International Law Programme. She has worked as a Trainee at the International Organisation for Migration in Athens, Greece and in the Greek Consulate in Munich, Germany and has also undertaken several research internships related to human rights law and international relations.