Our March 2025 Spotlight comes from Beth Lyons, a criminal defence attorney with 30+ years of experience. She has practiced almost exclusively in Legal Aid programs in New York City (trial and appellate levels) and in international courts and tribunals, including the International Criminal Tribunal for Rwanda and the International Criminal Court. Read more about Beth at her website.

In 1987 Dominic Ongwen, a Ugandan child of 8 or 9 years old from the Acholi ethnic group, was abducted by the Lord’s Resistance Army (LRA) on his way to school. He was forced to become a child soldier. Mr. Ongwen attempted to escape multiple times from the LRA over a period of roughly 27 years, acts for which he was punished and imprisoned by the LRA, and he finally succeeded in late 2014.

Shortly afterward, Mr. Ongwen surrendered in the Central African Republic to the International Criminal Court (ICC) on its arrest warrant and was transferred to The Hague, seat of the Court. He was prosecuted on an ICC indictment of 70 charges; these included war crimes; crimes against humanity, such as sexual and gender-based crimes; and conscripting child soldiers (like himself). In February 2021, the ICC’s Trial Chamber IX convicted Mr. Ongwen of 61 charges and two modes of liability and he was sentenced to a prison term of 25 years. The Appeals Chamber affirmed the Trial Judgment’s convictions and sentence in December 2022.

My book Race, Culture and Mental Illness in the International Criminal Court’s Ongwen Judgment, is based on my experiences and perspectives as a member of Dominic Ongwen’s defence team. With an introduction by Mr. Ongwen’s Lead Counsel, Chief Charles A. Taku, the book was recently published by Palgrave/Macmillan (it is also available from Amazon). This work critiques the impact of judicial racial and cultural biases and blindspots on the jurisprudence in the Ongwen Judgment. Mr. Ongwen was a mentally ill and mentally disabled defendant. The defence put forward by Mr. Ongwen’s team was that he was not responsible for the crimes of the LRA due to his mental illnesses and duress, stemming from his abduction and subsequent coercion and indoctrination by LRA leader Joseph Kony. My book argues that the Trial Chamber’s rejection of his defence was impacted by its blindspots and biases. Had Mr. Ongwen not been African, the Chamber would have made a different judicial assessment.

The Ongwen case is considered one of the most complex ICC cases, presenting a myriad of issues which are fundamental to international criminal law and questioning whether international justice can attain legitimacy. It is a case of “firsts” for the ICC:

• First prosecution of a mentally ill and mentally disabled defendant who was asserting affirmative defences under Rome Statute, Article 31(1)(a) and (d) as complete defences;
• First case in which culture and spiritualism played a prominent role in the duress defence;
• First case in which a single defendant was convicted of 61 crimes and 2 modes of liability, resulting in the longest judgment in ICC history; and
• First case in which a defendant, a child soldier, was charged with crimes of which he was himself a victim (conscription and use of child soldiers).

Through the lens of the Ongwen case, this book challenges the default settings of the ICC in respect to its white supremacy, racism, culturalism and lack of access to justice for the disabled. It provides a detailed analysis of the intersection of race, culture and mental illness in the Trial Chamber’s Judgment, referencing court transcripts and pleadings. In the beginning of the book, I ask: if the Lord’s Resistance Army were a predominantly white cult, if it functioned in a predominantly white/European country, if the Defence expert psychiatrists from Uganda were white or if the client, Mr. Dominic Ongwen, were white – would the Trial Chamber have reached a different conclusion about the affirmative defences of mental health and duress?

My answer is a resounding “yes.” If any one of these factors of whiteness existed, I contend that the Trial Judgment’s approach and conclusions on the mental disease or defect and duress defences would have been favorable to Mr. Ongwen. The result would have been a finding that the Prosecution had not disproved the elements of the affirmative defences for excluding criminal responsibility under Article 31 (1)(a) and (d) beyond a reasonable doubt. Mr. Ongwen would have been acquitted.

Chapter 1 demonstrates how the Ongwen Trial Chamber’s biases and blindspots in respect to race and culture impacted its jurisprudence, resulting in its rejection of the mental illness and duress affirmative defences and any relevance of, and role for, Acholi traditional justice in its sentencing. Chapter 2 focuses on the Trial Chamber’s failure to reasonably accommodate Mr. Ongwen, a mentally disabled defendant and provide equal access to justice for him, resulting in a violation of his fair trial rights. The book illustrates how the issues of race, language and culture impacted the Trial Chamber’s judicial conclusions. The Judgment held that Mr. Ongwen did not suffer from mental illness as a basis for excluding criminal responsibility. It rejected all the evidence of the Defence Experts, that Mr. Ongwen suffered from several mental illnesses, due to his abduction and subsequent coercion for years in the LRA. The Judgment based its rejection of the Defence Experts’ evidence on a multi-pronged critique of their methodology. This illustrates the intersection of its biases and blindspots in respect to language, culture and race. Here are a few examples:

1. Psychometric tests. The Judgment specifically rejects the Defence Experts’ conclusion that Mr. Ongwen was not malingering (the position held by the Prosecution Experts) because they failed to use psychometric testing as a method of assessment. Psychometric tests have been criticized for decades within the profession for their Western bias, as detailed in the book. Hence, the validity of their use, as well as their accuracy, particularly in non-Western contexts/societies, has been challenged. Yet, the Trial Chamber accepted psychometric tests as a “gold standard” for psychiatric evaluation despite these well-founded criticisms of their cultural biases.

2. The “Layperson criterion.” The Judgment erroneously relied on the observations of laypersons (who were also abductees in the LRA) as a criterion for whether Mr. Ongwen exhibited behavior which was perceived as abnormal or awry, and which would indicate symptoms of mental illness. What is perceived as “normal” or “abnormal” behavior in a society is determined by its culture, as well as how or whether these perceptions are communicated through language. But the Trial Chamber disregarded Defence expert evidence of the strength of religious beliefs in the spirits in northern Uganda, and evidence that the conduct observed by those close to Mr. Ongwen would be understood as “spirit possession.” The Chamber also did not consider that in Uganda and other parts of the African continent, people somatize psychological distress as physical ailments. Hence, any lay observations (especially of other abductees) of Mr. Ongwen’s conduct would not be interpreted as psychological distress or symptoms of mental illness. Lastly, there is no word in many African languages for “feeling blue,” so that how, or if, mental ailments are expressed in language is significant in evaluating evidence from laypersons.

3. The role of spiritualism. The Judgment concluded that spirituality was not a factor which contributed to the threat component relevant to Mr. Ongwen’s duress defence. Joseph Kony was perceived as a spirit medium by persons in the LRA, and especially by vulnerable child abductees. Kony abused spiritualism, particularly of the Acholi people, to cement his power and control over the LRA. The Judgment, however, while acknowledging Kony’s spiritual power over others in the LRA, carved out what I call an “Ongwen Exception”: that the toxic, traumatic, and often lethal environment of the LRA affected all other abductees, except for Mr. Ongwen. The Judgment recounts evidence of initiation rituals, standing rules, indoctrination and Kony’s brutal disciplinary regime, but is silent on how these rituals and practices affected the conduct and mental state of Mr. Ongwen. The Trial Chamber is effectively communicating that somehow Mr. Ongwen escaped or was immunized from the brutality and bestiality of the LRA. This is an example of the Judgment’s racism: Mr. Ongwen, a Black Acholi man from northern Uganda, was invisible to the Trial Chamber, which refused to accept that Mr. Ongwen, like the other abductees, was a victim of the Lord’s Resistance Army.

4. Acholi traditional justice. The Judgment’s negation of culture is found in the Trial Chamber’s explicit rejection of any role for Acholi traditional justice in the sentencing of Mr. Ongwen. Although the principle of complementarity is a cornerstone of the Rome Statute’s Preamble, complementarity has only been applied to the pre-trial phase (tracking of suspects) and not to the sentencing phase. The book (Chapter 1, Part 2) discusses the role of spiritualism in the Ongwen case, racial and cultural biases in sentencing, and how the ICC judgments prior to Ongwen have addressed cultural issues.

The Ongwen Judgment illustrates the intersection of language, cultural and racial issues with the lack of justice at the ICC. For the ICC to be a respected and legitimate organ of international justice, it must apply the rule of law to all, and ensure fairness in its proceedings. This means confronting its racial and cultural biases and blindspots within its structure, but also within the decisions and judgments which it renders. The Ongwen Judgment is a stain on international justice. It remains to be seen whether the ICC will take steps to rectify the Judgment’s stain.