Race, Culture and Mental Illness in the International Criminal Court’s Ongwen Judgment: Biases and Blindspots

Dominic Ongwen was abducted in 1987 when he was 8 or 9 years old  by the Lord’s Resistance Army (‘LRA’) in Northern Uganda 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 and was prosecuted.  Mr. Ongwen’s defence was that he was not responsible for the crimes of the LRA, based on his mental illnesses and duress, stemming from his abduction and subsequent coercion and indoctrination under Joseph Kony within the LRA. In February 2021, the ICC’s Trial Chamber IX convicted Dominic Ongwen of 61 charges and two modes of liability and he was sentenced to 25 years incarceration.

This work critiques the judicial racial and cultural biases and blindspots in the Ongwen Judgment rendered by the ICC, as related to the affirmative defences of mental disease or defect and duress and to sentencing, from the perspective of the author who served as a defence counsel in the case.

1.Introduction.-2. Considerations in Drafting this Article.- 3.  The Intersection of Race and Culture in the Ongwen Judgment.- 4. How the Chamber Handles the Defence and Prosecution Evidence.-5. The Predicate Issue:  Is a Critique of Methodology Racially Biased or “Fair Game”?.- 6. Confirmation Bias and Biased Conclusions.- 7.  Culture, Mental Health Literacy and Implicit Bias.-8. Cultural Bias and Scientific Standards, Psychometric Testing and Malingering.-9.  Conclusion

BETH S. LYONS is a senior defence counsel, with 30+ years of experience. She has served as a defence counsel at the ICTR and ICC in five international criminal cases.  Previously, she worked for The Legal Aid Society in New York City, in its criminal defence and appeals divisions.