International Justice Monitor

A project of the Open Society Justice Initiative

Psychiatrist Says Ongwen’s ‘Resilience’ Should be Taken into Account When ICC Considers Judgement

A psychiatrist called by the prosecution told the International Criminal Court (ICC) that the fact Dominic Ongwen was abducted as a child and survived for decades in the Lord’s Resistance Army (LRA) should be taken into account when judges determine his innocence or guilt.

Catherine Abbo, however, told the court that Ongwen did not have a mental disorder between 2002 and 2005, which is the period that covers the charges against him. Abbo testified between March 26 and March 28.

Ongwen has been charged with 70 counts of war crimes and crimes against humanity allegedly committed in northern Uganda. As a commander of the LRA, Ongwen is alleged to have been involved in attacks on four camps for internally displaced people, and he is alleged also to have committed sex crimes and conscripted child soldiers.

Abbo is one of three mental health experts the prosecution called to assess Ongwen’s mental health during the period of the charges against him. Abbo is specialized in child and adolescent psychiatry and is currently a senior lecturer in the department of psychiatry at Uganda’s Makerere University. The defense raised the possibility of Ongwen’s mental health as a defense in a notice they filed on August 9, 2016.

Like Gillian Clare Mezey, the first of the prosecution’s mental health experts to testify, Abbo did not get to interview Ongwen before she wrote her report on his mental state. Abbo based her report on material she was provided by the prosecution. This material included the reports of two mental health experts the defense hired to examine Ongwen. It also included a report by a court-appointed expert, Joop T.V. M. de Jong. The defense and court-appointed mental health experts were able to interview Ongwen as part of their evaluation of Ongwen. Abbo was also given excerpts of the testimony of witnesses who spoke to the court about what they knew about the personality of Ongwen and how he related with people.

Abbo’s report was entered into evidence on March 26 via Rule 68(3) of the ICC Rules of Procedure and Evidence. This provision requires the witness be in court and the witness state she does not object to the report being entered into evidence. The provision also requires the witness be available to be questioned by lawyers and judges.

On March 26, during her examination in chief of Abbo, prosecutor Colleen Gilg asked Abbo to elaborate on a paragraph in her report in which Abbo wrote that the ICC should consider as mitigating factors the fact Ongwen was abducted when he was child while he was still developing and that he continued his development as a child while in the bush in a negative environment.

Abbo said these factors should be taken into consideration because Ongwen was “removed from his normal environment and then put in this environment that is considered toxic for child development.”

“However, there are indications that Mr. Ongwen beat all the odds just like a child who lives in a very adverse situation and thrives. I think that this has to be taken into consideration whatever decision, end point that comes,” said Abbo.

“Many things led to his resilience, and I am wondering whether this resilience should be punished,” continued Abbo.

“Would you agree that these factors applied to the hundreds or thousands of boys and girls in the LRA?” asked Gilg.

“Not all of them … The issue of Mr. Ongwen rising through the ranks most likely improved his environment somehow,” answered Abbo.

“Was there anything to suggest that Mr. Ongwen was more vulnerable [than others]?” asked Gilg.

“No,” replied Abbo.

Gilg then asked Abbo about her conclusions on Ongwen’s mental state between 2002 and 2005. Gilg referred to Article 31(1)(a), a provision in the ICC’s founding law, the Rome Statute, that lists how a mental disease or mental defect may be grounds for considering an individual is not criminally responsible for the charges against him or her.

Gilg asked Abbo whether, in her expert opinion, Ongwen had a mental disease between 2002 and 2005 that destroyed his capacity to appreciate the nature of his conduct.

“No,” answered Abbo.

Gilg asked her whether Ongwen had a mental disease that destroyed his capacity to appreciate the unlawful nature of his conduct between 2002 and 2005.

“No,” replied Abbo.

Gilg asked Abbo whether Ongwen had a mental disease that destroyed his capacity to control his conduct between 2002 and 2005.

“No,” replied Abbo.

Once Gilg finished questioning Abbo, next to question the psychiatrist were Abigail Bridgman and Krispus Ayena Odongo, lawyers who represent Ongwen. They cross-examined her from part of the afternoon of March 26 through to the morning of March 28.

Bridgman asked Abbo whether there was a difference between a mental “disease” and a mental “defect,” two conditions referred to in Article 31(1)(a). Bridgman also asked her about how Ongwen’s experiences before his abduction and during his time in the LRA could have affected his mental state. Among other things that Odongo asked Abbo, he explored her study of transcultural psychiatry and how it applied to the question of Ongwen’s mental state when he was with the LRA.

On March 27, Bridgman read an excerpt of the testimony of Witness P-070 in which he described how when the LRA abducted people, their names and those of their family and village were recorded in a book. In the excerpt Bridgman read out in court the witness explained that this was done in case one escaped and the LRA would attack the village the escapee came from in retaliation.

After reading the excerpt, Bridgman asked Abbo, “With the level of brutality and the level of indoctrination [in the LRA] … how can this impact one’s mental health?”

“Again, it is on a case-by-case basis. I really do not want to make a general statement because I have seen children who have been in this kind of situation and that have had a gross impact on their mental health, and there are those who have coped,” replied Abbo.

She concluded her testimony on March 28. Psychologist Roland Weierstall was the next witness, and he testified on April 11 and April 12.

Transcripts of Abbo’s testimony are available on the ICC website. Only the French version of the transcript for March 26 is available. For Abbo’s testimony on March 27 and March 28, however, English versions of the transcripts are available.

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