If Black Were White: The Impact of Racial and Cultural Biases and Blindspots on the International Criminal Court’s Ongwen Trial Judgment

Dominic Ongwen was abducted in 1Abductee987 by the Lord’s Resistance Army (“LRA”) in Northern Uganda when he was 8 or 9 years old and trafficked as a child soldier; he made multiple unsuccessful attempts to escape and finally succeeded in late 2014. He turned himself into the International Criminal Court in 2015. Mr. Ongwen was, and continues to be, a victim of Joseph Kony’s Lord’s Resistance Army. This chapter critiques the judicial racial and cultural biases and blindspots in the Ongwen Judgment, as related to the affirmative defences of mental disease or defect and duress, under Article 31 of the Rome Statute and to sentencing. These biases and blindspots prevented the Judges from assessing the evidence in an impartial manner and correctly applying the law to Mr. Ongwen’s defences. My contention is that if the LRA were a predominantly white cult, or if it functioned in a predominantly white/European country, or if the Defence Expert psychiatrists from Uganda were white or if the defendant, Mr. Dominic Ongwen, were white, the Trial Chamber would have reached a different conclusion about the affirmative defences of mental disease or defect and duress and acquitted him. For the International Criminal Court (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, in part, confronting its racial and cultural biases and blindspots within its structure, as well as within the decisions and judgments which it renders.