Authored By: Muluken Adimasu
Case Title & Citation
Name of the Case: Ongwen case, Prosecutor (on the application of Victims) v Ongwen (Dominic), Decision on the confirmation of charges against Dominic Ongwen
Citation of the case: ICC-02/04-01/15-422-Re
Court Name & Bench
Name of Court: International Criminal Court [ICC]; Pre Trial Chamber II [ICC]
Name of Judges: Judge Bertram Schmitt, Judge Pe?ter Kova?cs & Judge Raul C. Pangalangan
Bench type: Pre Trial Chamber II [ICC]
Date of Judgment
6TH May 2021
Parties Involved
- Brief description of the petitioner(s) / appellant(s)
On 6 May 2005, the Prosecutor requested a warrant for the arrest of Dominic Ongwen for his alleged involvement in crimes against humanity and war crimes. Pre-Trial Chamber II issued a warrant under seal on 8 July 2005, and on 9 September 2005, the Prosecutor applied to unseal it.The warrant was publicly unsealed on 13 October 2005. Ongwen faces multiple charges related to crimes committed during the conflict in northern Uganda. These charges included inter-national crimes of a sexual and gender-based nature, such as forced pregnancy, forced mar-riage and sexual slavery. His case is crucial for delivering justice to victims and addressing accountability in armed conflicts.
- Brief description of the respondent(s) / defendant(s)
Dominic Ongwen, born in 1975, is a former child soldier and commander of the Lord’s Resistance Army (LRA) in Uganda. He faces 70 counts of war crimes and crimes against humanity related to his actions from 2002 to 2005. Abducted as a child, his traumatic experiences complicate questions of culpability.
Ongwen was indicted by the International Criminal Court (ICC) in 2005 but was not captured until 2015. His trial began in December 2016, with evidence submission concluding in December 2019. On February 4, 2021, he was found guilty of 61 counts and sentenced to 25 years in prison on May 6, 2021. The ICC Appeals Chamber confirmed this on December 15, 2022. Ongwen remains in detention while awaiting a state to enforce his sentence.
Facts of the Case
Dominic Ongwen’s life story is emblematic of the complexities and horrors of conflicts in the Great Lakes region of Africa. Born in northern Uganda, Ongwen was abducted by the LRA at the tender age of nine. The LRA, led by Joseph Kony, was notorious for its brutal and inhumane tactics during the Ugandan civil war, which spanned several decades. Ongwen’s abduction subjected him to a life of unimaginable hardship. He was indoctrinated, trained, and forced to participate in the LRA’s reign of terror. Over the years, he rose through the ranks, eventually becoming a commander within the LRA. As a commander, Ongwen was implicated in numerous atrocities, including massacres, abductions, sexual slavery, and the use of child soldiers.
In January 2015, Ongwen’s life took a dramatic turn when he was captured by a rival rebel group. He surrendered to the authorities, and in a significant development, he was transferred to the ICC to face charges for his alleged role in the LRA’s crimes. Consequently, the Trial Chamber conducted the proceedings with fairness and expedition, unwaveringly safeguarding Ongwen’s rights. It accurately interpreted the law and diligently assessed the evidence presented. Ongwen, in his appeal, has failed to demonstrate any substantial errors-whether legal, factual, or procedural-within the Trial Chamber’s proceedings that materially affected the final decision. Consequently, Ongwen’s appeals were dismissed, and the Court affirmed his conviction.
Issues Raised
- Whether the evidentiary record provided a robust foundation to ascertain the presence of substantial grounds for believing that the accused had perpetrated the charges leveled against him, thereby necessitating the confirmation of these charges?
- Whether the jurisprudential construct of indirect co-perpetration found explicit recognition within the provisions enshrined in the Rome Statute?
- Whether the legal characterization of ‘forced marriage’ could be classified as an ‘other inhumane act’ pursuant to the stipulations of Article 7(1) of the Rome Statute, or if it was encompassed within the broader category of the crime of sexual slavery?
- Whether all the essential components essential to establish ‘forced pregnancy’ had been conclusively demonstrated?
- Whether it was just and tenable to ascribe criminal responsibility to Dominic Ongwen for the alleged crimes, given the unique juxtaposition of his background as both a victim and a commander within the LRA?
Arguments of the Parties
Contention by Prosecution
The prosecution embarked on a determined pursuit to establish Dominic Ongwen’s criminal responsibility for the perpetration of grave offenses attributed to him during his command of the LRA. Their argument was anchored in several pivotal points:
The prosecution cited the doctrine of command responsibility, asserting that Ongwen, as a high-ranking LRA commander, wielded both authority and accountability over his subordinates. This principle, well-entrenched in international law, posits that those in command are obligated to prevent and punish crimes committed by those under their authority. To bolster their case, the prosecution presented compelling evidence suggesting Ongwen’s direct involvement in and issuance of orders for numerous criminal acts. This evidence comprised witness testimonies and recovered documents from LRA camps, vividly detailing Ongwen’s direct role in attacks, abductions, and acts of sexual violence. Lastly, The prosecution contended that Ongwen possessed knowledge of the crimes committed under his command and leadership within the LRA. Furthermore, they argued that he not only had awareness of these atrocities but also failed to take adequate measures to prevent or redress them.
Contention of Defense
In a stark contrast to the prosecution’s narrative, the defense presented an alternative perspective, shedding light on Dominic Ongwen’s background as a child abductee and the constraints he faced within the LRA. The defense contended that Ongwen’s abduction by the LRA at a tender age subjected him to severe physical and psychological coercion. They emphasized that he should be viewed as a victim who had been thrust into a life of violence and should not be held criminally accountable for actions carried out under extreme duress. Building upon this narrative, the defense argued that Ongwen’s role within the LRA did not confer genuine control over his actions. They posited that his apparent authority within the group was superficial, and he operated under the constant specter of violence. Moreover, the defence cite mental disease/defect, intoxication, self-defense, duress/necessity, mistake of fact/law, superior orders and Ongwen’s voluntary surrender to a rival rebel faction and subsequent transfer to the ICC were presented as evidence of his willingness to cooperate with authorities and disassociate himself from the LRA’s criminal activities. The prosecution, on the other hand, recognized his victimization and asked that it be taken into account during sentencing but reaffirmed that it should not nullify Ongwen’s responsibility.
In delivering its verdict Trial Chamber IX. Pre-Rome Statute tribunals like the ICTY, ICTR, and SLSC sporadically discussed defenses like tu quoque, military reprisals, self-defense, and state necessity, with varying degrees of acceptance. The ICC trial chamber in the Ongwen case thoroughly examined the mental disease/defect defense, ultimately rejecting it. The case also expanded the understanding of the duress defense in the context of crimes beyond murder.
Rules
Rome Statute of the International Criminal Court, 1998:
- Article 7(2)(f): It addressed the specific acts under war crimes, including those of a sexual nature.
- Article 7(1)(g): It defining the crimes against humanity, particularly those related to enslavement and other inhumane acts.
- Article 7(1)(k): It encompassed the crimes against humanity, particularly relating to forced marriage.
- Article 25(3): This article defined the individual criminal responsibility for crimes against humanity and war crimes. It detailed the circumstances under which an individual could be held criminally accountable for these offenses.
- Article 28(a): It delineated the responsibility of military commanders and superiors for crimes committed by their subordinates. It mandated commanders to take necessary and reasonable measures to prevent and punish such crimes.
Judgment / Final Decision
In its judgment, Trial Chamber IX found Mr Ongwen guity of several counts of sexual and gender-based crimes includind rape, sexual slavery, forced marriage, and for the first time before an international court for the crime of forced pregnancy. While delivering the verdict, Presiding Judge Schmidt provided detailed description of the heinous crimes committed by Mr Ongwen and the LRA. On 4 February 2021, Trial Chamber IX found Dominic Ongwen guilty for a total of 61 comprising crimes against humanity and war crimes, committed in Northern Uganda between 1 July 2002 and 31 December 2005. On 4 February 2021, the Chamber decided to hold a hearing under Article 76(2) of the Statute, in the presence of Dominic Ongwen, his defence counsel, representatives of the Office of the Prosecutor and the legal participants of the victims participating in the proceedings, to hear further submissions and any additional evidence relevant to the appropriate sentence to be imposed on Mr Ongwen. Additional evidence was submitted by the Defence, whereas the Prosecution and the legal representatives of the participating victims chose not to present any additional evidence. On 14 and 15 April 2021, the Chamber held a hearing on sentence under Article 76(2) of the Statute in the presence of the Prosecution, Mr Ongwen and his Defence and both teams of the legal representatives of the participating victims. On 6 May 2021, Trial Chamber IX sentenced Dominic Ongwen to 25 years of imprisonment. The period of his detention will be deducted from the total time of imprisonment imposed on him. On 9 November 2023, the Presidency of the ICC designated Norway as the State of enforcement for the sentence of imprisonment of Mr Ongwen, pursuant to article 103 of the Rome Statute. On 18 December 2023, Dominic Ongwen was transferred to a prison facility in the Kingdom of Norway to serve his sentence of imprisonment.
APPEALS
On 21 July and 26 August 2021, the Defence filed its appeal briefs against the conviction and the sentence, respectively. The Defence raised 90 grounds of appeal relating to the conviction and 11 grounds of appeal relating to the sentence. The Appeals Chamber held a hearing on 14 – 18 February 2022 to hear submissions and observations by the parties and participants on these appeals On 15 December 2022, the Appeals Chamber confirmed the decisions of Trial Chamber IX on Dominic Ongwen’s guilt and sentence. The conviction and the sentence are now final.
Legal Analysis/Reasoning
The case of Dominic Ongwen highlights the complexities of post-conflict justice, particularly in the realm of international criminal law. Ongwen, who was abducted as a child by the Lord’s Resistance Army (LRA) and later became a commander within the group, embodies the intricate interplay between victimhood and perpetration. His trial at the International Criminal Court (ICC) has sparked significant debate about the adequacy of prosecuting individuals who have experienced severe trauma and coercion, raising profound ethical questions about accountability and rehabilitation.
Critics of the ICC’s approach argue that local Ugandan courts provide a more judicious framework for addressing the sensitive issues surrounding former LRA fighters. In Uganda, the judicial system acknowledges these individuals not merely as criminals but also as victims entangled in the LRA’s violent narrative. As in national systems, it is fundamental to implement the principle nulla poena sine culpa and to address relevant cultural arguments in international courtrooms in order to punish only those who are lawfully guilty of a crime. In addition, since international criminal law is amalgamation of different legal systems, cultural relativism should be sometimes inevitable, and recognizing to specific cultures is therefore necessary. Most importantly, such judicial recognition of different cultures will be deemed significant for the goal of transitional justice with trials acting as its pillar in managing conflict, aiding reconciliation, and ending impunity within post-conflict communities. This approach emphasizes restorative justice, community rebuilding, and reparations rather than punitive measures, reflecting a desire to heal societal wounds rather than exacerbate them.
Ongwen’s case raises critical questions about how to hold accountable those who were victimized as children but later became perpetrators. It challenges the application of the doctrine of command responsibility, particularly in contexts marked by extreme coercion and violence. The ICC ultimately found Ongwen guilty of multiple war crimes and crimes against humanity, recognizing his unique trajectory from victim to perpetrator. However, this verdict underscores the moral complexities involved in determining accountability for individuals who occupy positions of authority within armed groups.
The ICC’s decision to convict Ongwen on 70 counts reflects a commitment to holding individuals accountable for their actions, regardless of their backgrounds. Yet, this potentially overlook the psychological and sociocultural dimensions of Ongwen’s experiences. The court’s rejection of his claims of mental illness during his time with the LRA raises concerns about whether the legal system fully appreciates the lasting effects of trauma on behavior and decision-making.
Ultimately, Ongwen’s trial serves as a stark reminder of the ethical dilemmas faced in international criminal law. It compels us to reflect on how societies can effectively navigate the delicate balance between justice and reconciliation, particularly for individuals whose lives have been irrevocably altered by conflict. As discussions continue surrounding child soldiers and command responsibility, it is crucial to consider rehabilitative measures and societal reintegration for former combatants. The case of Dominic Ongwen represents a significant chapter in the ongoing quest for accountability and justice amid egregious international crimes, highlighting the need for a multifaceted approach that recognizes the complexities of human experiences in armed conflict. .
Conclusion
In a momentous decision, the ICC found Dominic Ongwen guilty of multiple charges, including war crimes and crimes against humanity. The verdict acknowledged Ongwen’s unique trajectory from victim to perpetrator but ultimately held him accountable for his actions as an LRA commander. The case of Prosecutor v. Dominic Ongwen serves as a stark reminder of the complexities of international criminal law and the difficult moral choices it sometimes entails. While Ongwen’s abduction and upbringing in the LRA cannot be ignored, the court’s decision underscores the principle that individuals who occupy positions of authority within armed groups can be held responsible for their actions, even if they were once victims themselves. As we reflect on this case, we are compelled to continue the discussion surrounding the treatment of child soldiers, the limits of command responsibility, and the delicate balance between justice and reconciliation in post-conflict societies. Dominic Ongwen’s trial represents a significant chapter in the ongoing quest for accountability and justice in the face of egregious international crimes
However, it is the writer’s opinion that the judgments in the case of Dominic Ongwen fail to adequately consider his individual circumstances, particularly the significant cultural and racial factors that shaped his experiences. The Chambers overlooked the victimization he endured as a child and young adult within the brutal environment of the LRA. Despite the defense counsel’s persistent efforts to humanize Mr. Ongwen’s lived experience in the courtroom, the court’s rulings created an ‘Ongwen Exception’ that detached him from the established understanding of the long-term social and psychological impacts of being forcibly recruited as a child soldier. This narrow interpretation of Article 26 of the ICC Statute risks dehumanizing Mr. Ongwen and undermines the broader context of his actions. It highlights the need for a more nuanced approach that acknowledges the complexities of his social background. Dominic Ongwen’s trial represents a significant chapter in the ongoing quest for accountability and justice in the face of egregious international crimes.
Reference(S):
- Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.
- Dominic Ongwen*, WIKIPEDIA (last modified October 15, 2023), https://en.wikipedia.org/wiki/Dominic_Ongwen.
- “LRA commander Dominic Ongwen appears before ICC in The Hague“. BBC News. 26 January 2015. Archived from the original on 26 January 2018. Retrieved 21 June 2018.
- Prapti Kothari, Case Analysis: Prosecutor v. Dominic Ongwen, (Nov. 22, 2023). Accessed at <https://articles.manupatra.com/article-details/CASE-ANALYSIS-PROSECUTOR-V-DOMINIC-ONGWEN
- Beatrice Parentella, Cultural Arguments and Cultural Defences in the Ongwen Case, Journal of International Criminal Justice, 2025;, mqaf007.
- L. Sammartino, The Trial Chamber IX Judgment in the Case Prosecutor v. Dominic Ongwen, 2021 RIVISTA “ORDINE INTERNAZIONALE E DIRITTI UMANI” 441 (2022
- Juan-Pablo Perez-Leon-Acevedo Fabio Ferraz de Almeida, Lights and Shadows of the Ongwen Case at the International Criminal Court, (2023) (forthcoming).
- Prapti Kothari, Case Analysis: Prosecutor v. Dominic Ongwen, (Nov. 22, 2023), available at https://articles.manupatra.com/article-details/CASE-ANALYSIS-PROSECUTOR-V-DOMINIC-ONGWEN.
- ICC, Ongwen Case – The Prosecutor v. Dominic Ongwen icc-02/04-01/15, available online at https://www.icc-cpi.int/uganda/ongwen.
- “LRA commander Dominic Ongwen appears before ICC in The Hague”. BBC News. 26 January 2015. Archived from the original on 26 January 2018. Retrieved 21 June 2018.
- Matteo Tonella, Trial Chamber IX found Mr Dominic Ongwen guilty of 61 counts of Crimes Against Humanity and War Crimes, (Febr. 2021)
Appendix
Composition of Trial Chamber IX
- Judge Bertram Schmitt, Presiding Judge
- Judge Peter Kovacs
- Judge Raul C. Pangalangan
Composition of the Appeals Chamber
- Judge Luz del Carmen Ibáñez Carranza, Presiding
- Judge Piotr Hofmański
- Judge Solomy Balungi Bossa
- Judge Reine Alapini-Gansou
- Judge Gocha Lordkipanidze
Representation of the Office of the Prosecutor
- Karim A.A. Khan KC, Prosecutor
- Mame Mandiaye Niang, Deputy Prosecutor
- Helen Brady
Defence Counsel for Dominic Ongwen
- Charles Achaleke Taku
Legal Representatives of the Victims
- Joseph Akwenyu Manoba
- Francisco Cox
- Paolina Massidda
