The Prosecutor v. Dominic Ongwen
Original: English No.: ICC-02/04-01/15 A3 Date: 7 April 2025
THE APPEALS CHAMBER
Before: Judge Solomy Balungi Bossa, Presiding Judge Tomoko Akane Judge Luz del Carmen Ibáñez Carranza Judge Gocha Lordkipanidze Judge Erdenebalsuren Damdin
SITUATION IN UGANDA
IN THE CASE OF THE PROSECUTOR v. DOMINIC ONGWEN
Public document
Judgment on the appeal of Mr Dominic Ongwen against the decision of Trial Chamber IX of 28 February 2024 entitled “Reparations Order”
No: ICC-02/04-01/15 A3 1/90
Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:
☐ The Office of the Prosecutor ☒ Counsel for the Defence
☒ Legal Representatives of the Victims ☐ Legal Representatives of the Applicants
☐ Unrepresented Victims ☐ Unrepresented Applicants
(Participation/Reparation)
☒ The Office of Public Counsel for ☐ The Office of Public Counsel for the
Victims Defence
☐ States’ Representatives ☐ Amicus Curiae
REGISTRY
Registrar ☐ Counsel Support Section Mr Osvaldo Zavala Giler ☐ Victims and Witnesses Unit ☐ Detention Section ☒ Victims Participation and Reparations ☒ Other Section Trial Chamber IX Trust Fund for Victims
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The Appeals Chamber of the International Criminal Court, In the appeal of the Defence of Dominic Ongwen against the decision of Trial Chamber IX entitled “Reparations Order” of 28 February 2024 (ICC-02/04-01/15- 2074), After deliberation, Unanimously, Delivers the following
J U D G M E N T
The “Reparations Order” is confirmed.
REASONS
I. KEY FINDINGS
The phrase in article 75(1) of the Statute that “[t]he Court shall establish principles relating to reparations to, or in respect of victims, including restitution, compensation and rehabilitation” should not be understood as exhaustive. It is clear that a trial chamber may order modalities of reparations beyond restitution, compensation and rehabilitation, including those with a symbolic value. Rule 94(1) of the Rules specifies what victims must provide when requesting reparations and it does not in any way limit a trial chamber’s choice of modalities or types of reparations which it may award. Furthermore, rule 94(1) of the Rules enables the Court to consider victims’ requests not only for restitution, compensation and rehabilitation, but also for “other forms of remedy” not explicitly provided for in article 75(1) of the Statute.
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The Appeals Chamber’s determination that “collective reparations can include the payment of sums of money to individuals to repair harm suffered” does not mean that any such payment must be considered as a compensation.
II. INTRODUCTION
Mr Ongwen was convicted, on 4 February 2021, of crimes against humanity and 1 2 war crimes. On 28 February 2024, the Trial Chamber issued the Impugned Decision, which the Defence subsequently appealed.
In its appeal, the Defence raises 11 grounds of appeal against the Impugned Decision. These grounds of appeal raise the issues of:
i. non-disclosure of the names of the potential beneficiaries in the Sample 3 (first ground of appeal);
ii. the alleged “dual claimants”, who, in the view of the Defence, benefit both from an award made by the High Court of Uganda and from the award made 4 in the Impugned Decision (second ground of appeal);
iii. presumptions concerning residents of the IDP camps and non-residents 5 present in these camps at the time of the attacks (third ground of appeal);
iv. Acholi traditional and cultural factors and mechanisms (joint fourth, 6 eleventh and twelfth grounds of appeal);
v. the legal basis for a symbolic cash award (fifth ground of appeal);
vi. criteria for prioritisation of victims at the implementation stage (sixth 8 ground of appeal);
1 Conviction Decision . 2 Impugned Decision . 3 Appeal Brief , paras 9-19. 4 Appeal Brief , paras 20-29. 5 Appeal Brief , paras 30-37. 6 Appeal Brief , paras 38-66. Appeal Brief , paras 67-75. 8 Appeal Brief , paras 76-87. No: ICC-02/04-01/15 A3 7/90
vii. medical documentation to support applications of two victims (seventh
9 ground of appeal);
viii. the impact of the time when Mr Ongwen was not the commander of the
Sinia brigade on the estimation of the number of victims of SGBC (eighth
10 ground of appeal);
ix. the impact of the number of LRA operational units on the estimation of the
11 number of victims (ninth ground of appeal);
x. psychological evidence and/or examination required to prove moral harm
12 (thirteenth ground of appeal); and
xi. the Trial Chamber’s findings on the eligibility of four victims (fourteenth
13 ground of appeal).
In response to the Defence’s appeal, Victims Group 1 and Victims Group 2
invited the Appeals Chamber to reject the Defence’s arguments and confirm the
14 Impugned Decision.
Prior to entering the merits of the grounds of appeal, the Appeals Chamber will
first address a preliminary issue that arose in this appeal.
The Annex to this judgment contains a list of the materials cited and designations
15 used therein.
9 Appeal Brief , paras 88-99. 10 Appeal Brief , paras 100-112. 11 Appeal Brief , paras 113-123. 12 Appeal Brief , paras 124-143. 13 Appeal Brief , paras 144-159. Victims Group 1’s Response Victims Group 2’s Response 14 , . 15 See Annex: Table of designations and cited materials .
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III. PROCEDURAL HISTORY
A. Proceedings before the Trial Chamber
On 4 February 2021, the Trial Chamber found Mr Ongwen guilty of crimes
against humanity and war crimes, committed in Northern Uganda between 1 July 2002
16 and 31 December 2005.
On 6 May 2021, the Trial Chamber sentenced Mr Ongwen to a total period of
17 25 years of imprisonment as a joint sentence. On the same day, the Trial Chamber
instructed the Defence, Victims Group 1, Victims Group 2, the Registry and the TFV
18 to make submissions on certain issues concerning reparations.
On 16 December 2022, the Trial Chamber instructed the Registry to draw a list
of randomly selected victims, in order to create a sufficiently representative sample of
19 beneficiaries of reparations, and transmit such a list to the Trial Chamber.
On 16 January 2023, following the Registry’s transmission of the proposed list
20 of victims to be included in the Sample, the Trial Chamber issued a decision in which
it, inter alia , approved the Sample and established a procedure for the VPRS to transmit
the victims’ redacted dossiers to the Defence, and for the Defence, Victims Group 1
21 and Victims Group 2 to make submissions on the dossiers in the Sample.
22 On 17 April 2023 and 19 May 2023, Victims Group 1, Victims Group 2 and the
23 Defence filed their submissions on the Sample, respectively.
On 28 February 2024, the Trial Chamber issued the Impugned Decision,
containing an order for reparations against Mr Ongwen, awarding collective
16 Conviction Decision . On 15 December 2022, the Appeals Chamber confirmed the Conviction Decision: see Conviction Appeal Judgment . 17 Sentencing Decision . On 15 December 2022, the Appeals Chamber, by majority, Judge Luz del Carmen Ibáñez Carranza partly dissenting, confirmed the Sentencing Decision: see Sentencing Appeal Judgment . 18 Order for Submissions on Reparations , p. 6. 19 Decision on the Sample , p. 16. Registry’s Transmission of List of Individuals and Relevant Information for Reparation Sample 20 . 21 Decision Approving the Sample , pp. 12-13. Victims’ Joint Submissions of 17 April 2023 Victims Group 2’s Submission of Information Related 22 ; to the Sample Applications . Defence’s Submissions of 19 May 2023 23 .
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community-based reparations to the eligible victims and assessing Mr Ongwen’s
24
liability for reparations at approximately EUR 52,429,000.
B. Proceedings before the Appeals Chamber
On 4 March 2024, the Appeals Chamber appointed Judge Luz del Carmen Ibáñez
25
Carranza as the Presiding Judge in the present appeal.
On 12 March 2024, the Presidency assigned Judge Tomoko Akane and
26
Judge Erdenebalsuren Damdin to the Appeals Division.
On 14 March 2024, the Appeals Chamber extended the time limit for the filing of any notice of appeal and the Defence’s appeal brief.
27
On 22 April 2024, the Defence filed its notice of appeal against the Impugned
28
Decision and a request for suspensive effect thereof.
On 16 May 2024, having received submissions and observations on the Defence’s
29
request, the Appeals Chamber rejected the request for suspensive effect and invited
the TFV and the Registry to adopt certain measures for the continuing implementation
30
of the Impugned Decision.
On 12 July 2024, the Appeals Chamber reassigned the role of Presiding Judge to
31
Judge Solomy Balungi Bossa.
32
On 17 July 2024, the Defence submitted its Appeal Brief with four annexes.
24 Impugned Decision . 25 Decision on the Presiding Judge of the Appeals Chamber , p. 3. 26 Decision Assigning Judges to Divisions and Recomposing Chambers , pp. 3-4. 27 Decision on Extension of Time for Notice of Appeal and Appeal Brief , p. 3, para. 12. See also Defence’s Request for Extension of Time for Notice of Appeal and Appeal Brief ; Legal Representatives of Victims’ Joint Response to Defence’s Request for Suspensive Effect . 28 Notice of Appeal . Registry’s Submissions on Defence’s Request for Suspensive Effect TFV’s Observations on 29 ; Defence’s Request for Suspensive Effect and Rule 103 Request ; Victims Group 1’s Response to Defence’s Request for Suspensive Effect and TFV’s and Registry’s Observations ; Victims Group 2’s Response to Defence’s Request for Suspensive Effect ; Defence’s Response to Registry’s and TFV’s Submissions and TFV’s Rule 103 Request . See also Order Setting Time Limit for Submissions on Defence’s Request for Suspensive Effect . Decision on Defence’s Request for Suspensive Effect 30 . 31 Decision Replacing the Presiding Judge of the Appeals Chamber . 32 Appeal Brief .
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33 On 23 August 2024 and 26 August 2024, Victims Group 1 and Victims 34 Group 2 filed their respective responses to the Appeal Brief.
35 On 17 September 2024, with the leave of the Appeals Chamber, the TFV 36 submitted its observations on the Appeal Brief.
On 27 September 2024, the Defence filed its response to the TFV’s
37 Observations.
IV. STANDARD OF REVIEW
In its appeal, the Defence alleges errors of law, fact and procedure, as well as an
abuse of discretion.
A. Errors of law
With respect to alleged errors of law:
[T]he Appeals Chamber will not defer to the Trial Chamber’s interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the Impugned Decision.
[An impugned decision] is “materially affected by an error of law” if the Trial Chamber “would have rendered a [decision] that is substantially different from the decision that was affected by the error, if it had not made the error”. 38
B. Errors of fact
With respect to alleged errors of fact:
[The Appeals Chamber] will not interfere with factual findings of the first-instance Chamber unless it is shown that the Chamber committed a clear error, namely, misappreciated the facts, took into account irrelevant facts, or failed to take into account relevant facts. As to the “misappreciation of facts”, the Appeals Chamber has also stated that it “will not disturb a Pre-Trial or Trial Chamber’s evaluation of the facts just because the Appeals Chamber might have come to a different conclusion. It will interfere only in the case where it cannot
Victims Group 1’s Response 33 . Victims Group 2’s Response 34 . Decision on the TFV’s Request for Leave to Make Observations 35 . TFV’s Observations 36 . Defence’s Response to TFV’s Observations 37 . 38 Ntaganda A6 A7 Judgment , para. 14, referring to , inter alia , Ntaganda A4 A5 Judgment , para. 29; Lubanga A7 A8 Judgment , para. 28; Katanga A3-A5 Judgment , para. 39.
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discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it”. 39
The Appeals Chamber notes in this regard that the Trial Chamber applied the 40 standard of proof of a balance of probabilities. It recalls that this standard is different from that of “beyond reasonable doubt” (in accordance with article 66(3) of the Statute), in light of which trial chambers enter factual findings in decisions under article 74 of 41 the Statute. Therefore, while the aforementioned standard of appellate review for errors of fact was set out primarily for decisions under article 74 of the Statute, the Appeals Chamber will apply it bearing in mind the different standard of proof applied 42 to the present reparation proceedings.
C. Procedural errors
With respect to alleged procedural errors:
[S]uch errors may occur in the proceedings leading up to an impugned decision. […] However, as with errors of law, the Appeals Chamber will only reverse [the Impugned Decision] if it is materially affected by the procedural error. In that respect, the appellant needs to demonstrate that, in the absence of the procedural error, the [Impugned Decision] would have substantially differed from the one 43 rendered.
D. Abuse of discretion
In respect of the abuse of discretion, the Appeals Chamber has stated:
[T]he Appeals Chamber may interfere with a discretionary decision [when it] amounts to an abuse of discretion. Even if an error of law or of fact has not been identified, an abuse of discretion will occur when the decision is so unfair or unreasonable as to “force the conclusion that the Chamber failed to exercise its discretion judiciously”. The Appeals Chamber will also consider whether the first instance Chamber gave weight to extraneous or irrelevant considerations or failed to give weight or sufficient weight to relevant considerations in exercising its
39 Ntaganda A6 A7 Judgment , para. 15, referring to , inter alia , Ntaganda A4 A5 Judgment , para. 30; Lubanga A7 A8 Judgment , para. 30; Katanga A3-A5 Judgment , para. 41. 40 Impugned Decision , para. 422. 41 Ntaganda A6 A7 Judgment , para. 16, referring to Ntaganda A4 A5 Judgment , para. 31. 42 See Katanga A3-A5 Judgment , para. 42; Lubanga A7 A8 Judgment , para. 33; Ntaganda A6 A7 Judgment , para. 16, referring to Ntaganda A4 A5 Judgment , para. 31. 43 Ntaganda A6 A7 Judgment , para. 17, referring to , inter alia , Ntaganda A4 A5 Judgment , para. 33; Lubanga A7 A8 Judgment , para. 29; Katanga A3-A5 Judgment , para. 40.
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discretion. The degree of discretion afforded to a Chamber may depend upon the 44 nature of the decision in question.
E. Substantiation of arguments
As to the issue of substantiation of arguments, the Appeals Chamber notes that regulation 58(2) of the Regulations requires the appellant to refer to “the relevant part of the record or any other document or source of information as regards any factual issue” and “to any relevant article, rule, regulation or other applicable law, and any authority cited in support thereof” as regards any legal issue. It also stipulates that the appellant must, where applicable, identify the finding or ruling challenged in the decision with specific reference to the page and paragraph number. In addition to these formal requirements, an appellant is obliged to present cogent arguments that set out 45 the alleged error and explain how the trial chamber erred.
V. PRELIMINARY ISSUE
46 The Defence listed 15 grounds of appeal in its Notice of Appeal. However, in the Appeal Brief, the Defence stated that it “decided to withdraw Grounds 10 and 15” while “reserv[ing] the right to reinstate said grounds should Mr Ongwen [so] decide after receiving the Acholi translation of the operative parts of the Impugned Decision”. 47 Victims Group 2 submit that “this course of action is invalid” as, inter alia , “a notice of discontinuance may be considered valid only when it does not contain reservations or conditions”. 48
The Appeals Chamber recalls that when granting an extension of time for the filing of the Appeal Brief, it allowed the Defence to “seek, under regulation 61 of the [Regulations], a variation of grounds of appeal within 14 days of the receipt by Mr Ongwen of an Acholi translation of the operative parts of the [Impugned Decision]”. 49 It appears that the Defence intended the aforementioned discontinuance of two grounds of appeal to be subject to the reservation that the Defence might apply for a variation of grounds of appeal within the time limit set by the Appeals Chamber. However, as
44 Ntaganda A6 A7 Judgment , para. 19, referring to , inter alia , Ntaganda A4 A5 Judgment , para. 35; Lubanga A7 A8 Judgment , para. 32; Katanga A3-A5 Judgment , para. 44. 45 Ntaganda A6 A7 Judgment , para. 21, referring to , inter alia , Ntaganda A4 A5 Judgment , para. 37. 46 Notice of Appeal , para. 28(b). 47 Appeal Brief , para. 8. Victims Group 2’s Response 48 , paras 23-25. 49 Decision on Extension of Time for Notice of Appeal and Appeal Brief , p. 3.
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the Defence did not apply for a variation within the said time limit and the discontinuance of the two grounds is thus not subject to any reservation, the issue of validity of such reservation is moot.
VI. MERITS
A. First ground of appeal: Alleged erroneous refusal to disclose the names of victims
Under this ground of appeal, the Defence submits that the Trial Chamber erred by refusing to order the disclosure of the names of the potential beneficiaries in the 50 51 Sample, which affected the Defence’s ability to assess their applications. The Defence argues that there were no credible instances of threats to victims and that 52 redactions to their applications were thus unnecessary.
1 Relevant background and part of the Impugned Decision On 16 January 2023, the Trial Chamber rendered a decision in which it, inter alia , set out a procedure for the disclosure of victims’ dossiers:
[E]ven if the victims do not consent to their identities being disclosed to the Defence, the Registry should maintain redactions only related to identifying information. […] [A]ny information relating to the description of the harm suffered, the events that caused the harm, and the link between such harm and the crimes of which Mr Ongwen has been convicted, should not be redacted and redactions already applied should therefore be lifted, except for information that might reveal the identities of victims, current residence or other contact information that may be used to locate the victims. If the victims have provided their consent to their identities being disclosed to the Defence, the Registry should proceed to lift further redactions on the victims’ dossiers keeping redacted only the information that might reveal the current residence or other contact information that may be used to locate the victims. […] The Defence should raise any challenge it may have to the redactions applied/maintained directly with the VPRS, seizing the Chamber only 53 exceptionally when no agreement can be reached.
On 29 March 2023, the Defence requested the lifting of redactions in 164 applications which had been disclosed to it pursuant to the Decision Approving the
50 Appeal Brief , para. 9. 51 Appeal Brief , paras 9, 18-19. 52 Appeal Brief , paras 15-17, 19. 53 Decision Approving the Sample , paras 11-12 (footnote omitted).
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54 Sample. The Defence expressed concerns about its ability to review and comment on
the dossiers of the victims in the Sample, noting that some allegations made by victims
55 could only be verified if their names were provided to the Defence. It also submitted
that there was “no objectively justifiable risk” to the victims concerned, as there had
56 not been a single incident of interference.
On 20 April 2023, the Trial Chamber rejected the Defence’s Request for the
Lifting of Redactions, noting the submissions of the legal representatives of victims
with respect to the victims’ continued concern for their safety. 57 The Trial Chamber
held that the Defence had failed to demonstrate that the non-disclosure of the victims’
58 names unduly affected its ability to review and comment on the Sample.
Subsequently, the Defence requested the lifting of redactions with respect to
59 13 victims. However, the Trial Chamber dismissed that request in limine , noting that
the Defence was “trying to relitigate an issue that [had been] conclusively ruled upon
60 in the [Decision on Request for the Lifting of Redactions]”.
In the Impugned Decision, the Trial Chamber stated that it “decided to rule upon
a limited but representative sample of victims’ dossiers in the case file, amounting to
5% of the universe of participating victims”. 61 It found that the Sample was “a fair
representation of the individuals who are likely to come forward to benefit from
reparations” and that its assessment allowed the Trial Chamber “to reach statistically
valid conclusions as to the victims entitled to benefit from reparations as a result of the
crimes for which Mr Ongwen was convicted”. 62 The Trial Chamber indicated that it
“analysed the victims’ dossiers included in the Sample by conducting its own
assessment of the facts, as alleged by each of the potential beneficiaries, while taking
into account the parties’ submissions and the additional information they provided”. 63
In its analysis of the Sample, the Trial Chamber “elaborate[d] on the relevant
Defence’s Request for the Lifting of Redactions 54 , paras 1, 12, 24. Defence’s Request for the Lifting of Redactions 55 , paras 20-21. Defence’s Request for the Lifting of Redactions 56 , paras 22-23. 57 Decision on Request for the Lifting of Redactions , para. 18, p. 10. 58 Decision on Request for the Lifting of Redactions , para. 19. Defence’s Second Request for the Lifting of Redactions 59 , paras 1, 24-43, 45(a). 60 Decision on Second Request for the Lifting of Redactions , para. 21, p. 10. 61 Impugned Decision , para. 427. 62 Impugned Decision , para. 428. 63 Impugned Decision , para. 432.
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evidentiary criteria, conditions of eligibility, and the results of its assessment of the
Sample”. 64
2 Summary of the submissions
The Defence submits that the Trial Chamber erred in law by refusing to order the
65 disclosure of the names of the potential beneficiaries in the Sample. The Defence
avers that, as a result, it was “unable to make a fair assessment” of the applications of
victims, “with material found in the case file”. 66 It also argues that the redactions
authorised by the Trial Chamber were “completely unnecessary”, as there were no
credible instances of threats to victims or witnesses and Uganda is a “rather safe”
67 country. The Defence requests the Appeals Chamber to remand this issue to the Trial
Chamber so that it releases all the identifying information to the Defence and allows
68 the Defence to review the relevant applications.
Victims Group 1 submit that the issue raised under this ground of appeal does not
arise out of the Impugned Decision, as it was addressed in the Decision Approving the
69 Sample and the Decision on Request for the Lifting of Redactions. They argue that
the Defence fails to demonstrate an error, since it was able to make observations on
victims’ applications without the disclosure of the victims’ names, and the Trial
Chamber itself assessed the victims’ dossiers. 70
Victims Group 2 submit that the Defence is precluded from raising an issue
related to the procedure set out in the Decision Approving the Sample, because it chose
71 not to appeal that decision. They argue that the victims in the Sample were “a small
fraction” of all victims and, therefore, even if the Defence had successfully challenged
their applications, that would not have significantly impacted the overall award of
72 reparations. Victims Group 2 contend that, contrary to its assertion, the Defence was
in a position to make comments on the victims’ applications, and the Trial Chamber
made its findings thereupon “with a comprehensive understanding of all relevant
64 Impugned Decision , para. 432. 65 Appeal Brief , para. 9. 66 Appeal Brief , paras 9, 18-19. 67 Appeal Brief , paras 15-17, 19. 68 Appeal Brief , para. 19. Victims Group 1’s Response 69 , paras 18-19. Victims Group 1’s Response 70 , paras 20-23. Victims Group 2’s Response 71 , para. 31. Victims Group 2’s Response 72 , para. 29.
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information”. 73 Victims Group 2 submit that the redactions authorised by the Trial 74 Chamber are necessary as victims continue to live in fear of reprisals.
3 Determination by the Appeals Chamber
a. Preliminary issues
Victims Group 1 submit that the Defence may not raise in the present appeal the matter of redactions, as this issue does not arise out of the Impugned Decision, but out of the Decision Approving the Sample and the Decision on Request for the Lifting of 75 Redactions. However, the Appeals Chamber notes that the Trial Chamber addressed the Defence’s concerns regarding the allegedly excessive redactions in Confidential ex parte Annex I to the Impugned Decision. The Trial Chamber did so with respect to specific victims’ dossiers. For instance, when addressing the Defence’s arguments regarding a potential beneficiary’s dossier, the Trial Chamber noted that, having reviewed the redactions implemented in that dossier, it “[did] not consider them to be 76 prejudicial to the Defence”. Similarly, in relation to another victim’s dossier, the Trial Chamber addressed the Defence’s contentions that the “potential beneficiary’s failure to disclose necessary and vital information create[d] an unfair and prejudicial circumstance against Mr Ongwen”, and “that the failure to disclose [did] not create a 77 causal link”. The Trial Chamber held that, having reviewed the redactions in the potential beneficiary’s dossier, it was “satisfied that the redactions [we]re necessary to ensure the potential beneficiary’s safety”. 78 The Appeals Chamber therefore rejects Victims Group 1’s argument that the Defence is precluded from raising the issue of redactions in the present appeal.
Victims Group 2 submit that the Defence is precluded from raising an issue relating to the procedure for lifting redactions, set out in the Decision Approving the 79 Sample, as the Defence chose not to appeal that decision. According to Victims Group 2, the issue the Defence has raised in this regard concerns the requirement that
Victims Group 2’s Response 73 , para. 30. Victims Group 2’s Response 74 , para. 32. Victims Group 1’s Response 75 , paras 18-19. 76 Confidential ex parte Annex I to Impugned Decision, para. 2924. Although this document and some of the other documents referred to in this judgment are marked confidential, the Appeals Chamber makes reference to them, as nothing in the cited excerpts is considered confidential. 77 Confidential ex parte Annex I to Impugned Decision, para. 2940. 78 Confidential ex parte Annex I to Impugned Decision, para. 2940. Victims Group 2’s Response 79 , para. 31.
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80 the Defence should communicate its objections to redactions directly to the VPRS.
However, the Defence does not challenge the Decision Approving the Sample in this
respect. In the relevant part of its Appeal Brief, the Defence submits that, rather than
making “an independent decision on lifting the redaction for which the Defence asked”,
the VPRS “raised the request with the [legal representatives of victims] and followed
81 their advice”. The Defence “asserts [that this] violates the spirit of the [Decision
Approving the Sample]”. 82 It is thus not the Decision Approving the Sample that the
Defence challenges in this submission, but the manner in which the VPRS implemented
that decision. Furthermore, the Defence does not allege any error in this regard. Rather,
it observes that this is “noteworthy”. 83 Therefore and without prejudice to the question
of whether the Defence’s failure to seek leave to appeal the Decision Approving the
84 Sample prevents it from raising issues with respect to that decision, the Appeals
Chamber dismisses Victims Group 2’s present argument.
b. Merits
The Defence’s main argument is that the Trial Chamber’s refusal to order the
disclosure of the names of the victims in the Sample affected the Defence’s ability to
assess the victims’ applications therein. 85
The Appeals Chamber recalls that, consistent with article 75(3) of the Statute and
rule 94(2) of the Rules, “[t]he convicted person must be given a sufficient opportunity
to make submissions” in reparation proceedings. 86 It also recalls that “the right to
Victims Group 2’s Response , para. 31 (“As regards the redactions in the applications included in the 80 Sample, the Defence further contests the instructions ‘to raise any challenge it may have to the redactions applied/maintained directly with the VPRS, seizing the Chamber only exceptionally when no agreement can be reached’” (footnote omitted)). 81 Appeal Brief , para. 11. 82 Appeal Brief , para. 11. 83 Appeal Brief , para. 11. 84 The Appeals Chamber has held that “not seeking leave to appeal a matter arising in the proceedings leading up to another decision subsequently impugned on appeal does not necessarily preclude the appellant from bringing that matter in the appeal” ( Ntaganda A4 A5 Judgment , para. 738. See also Ntaganda A6 A7 Judgment , para. 201). The Appeals Chamber also held that “an appellant is not precluded from raising in an appeal under article 82(1)(a) of the Statute errors which arise out of a decision issued in the proceedings leading up to the decision impugned on appeal and which ‘may be germane to the legal correctness or procedural fairness of the Chamber’s decision [impugned on appeal]’” ( Ntaganda A4 A5 Judgment , para. 738, fn 1650, referring to Kony et al. OA3 Judgment , para. 46. See also Ntaganda A6 A7 Judgment , para. 201). 85 Appeal Brief , paras 9, 18-19. 86 Ntaganda A4 A5 Judgment , paras 359-361, referring to Lubanga A7 A8 Judgment , para. 90. See also Ntaganda A6 A7 Judgment , para. 218.
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receive information in proceedings at this Court may be limited in certain
circumstances”. 87 In this regard,
the guiding principle for trial chambers must be to ensure that the convicted person, as a party to the litigation, has a meaningful opportunity to challenge the information on the basis of which a chamber will make an award against him or her. […] [A] trial chamber should […] take into account the relevance of the information at issue and the purpose for which it will be relied upon, including 88 whether, in reality, its non-disclosure affects the convicted person’s rights.
In the present case, as an example of the alleged prejudice to the rights of
Mr Ongwen, the Defence submits that the Trial Chamber found eligible seven out of
89 the 13 persons with respect to whom the Defence had sought the disclosure of
90 names. The Appeals Chamber notes, however, that the mere fact that the Trial
Chamber found victims eligible to benefit from reparations, despite the Defence’s
objections to the non-disclosure of those victims’ names, is not, in and of itself,
indicative of undue prejudice to the Defence. The Appeals Chamber notes in this regard
that in the Defence’s Second Request for the Lifting of Redactions, the Defence sought
91 the disclosure of the names of 13 persons. The Trial Chamber’s detailed analysis of
those persons’ eligibility, including its careful consideration of the submissions of the
Defence, which, in substance, reiterate the arguments from the Defence’s Second
92 Request for the Lifting of Redactions, clearly indicates that the Defence was able to
93 make its observations on their dossiers. In as many as five cases, out of the 13 to
which the Defence now refers, the Trial Chamber found the persons not to be eligible,
taking into account the arguments set out in the Defence’s filings. 94 The Defence has
therefore failed to demonstrate that it was “unable to make a fair assessment” 95 and that
its right to conduct a meaningful review of the victims’ dossiers was unduly affected.
87 Lubanga A7 A8 Judgment , para. 254; Ntaganda A6 A7 Judgment , para. 224. 88 Lubanga A7 A8 Judgment , para. 256; Ntaganda A6 A7 Judgment , para. 224. 89 The Defence submits that it requested the disclosure with respect to 12 persons. However, 13 persons are listed in the request to which it refers ( Defence’s Second Request for the Lifting of Redactions , paras 25-42. See also Decision on Second Request for the Lifting of Redactions , para. 17). 90 Appeal Brief , para. 14. Defence’s Second Request for the Lifting of Redactions 91 , paras 25-42. 92 Confidential ex parte Annex I to Impugned Decision, paras 1015, 1042-1043, 1358, 2711, 2826, 2839, 2854-2855, 2871, 2881, 2904, 2924, 2940, 2998. 93 The Defence contested the eligibility of all but one potential beneficiary to whom the Defence’s Second Request for the Lifting of Redactions related ( see Confidential ex parte Annex I to Impugned Decision, para. 1353). 94 Confidential ex parte Annex I to Impugned Decision, paras 2831, 2842, 2874, 2885, 3004. 95 Appeal Brief , paras 9, 18.
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In the same vein, the Appeals Chamber recalls that “[i]t is inherent in any situation in which redactions are authorised that the quality of the submissions of the party to whom the redactions apply may be impacted by the fact that information has 96 been redacted”. Therefore, even if it was indeed the case that the Defence “would have been able to conduct a much [more] thorough search of the case material”, had it been granted access to the victims’ names, 97 it does not automatically lead to a finding that the Trial Chamber failed to ensure Mr Ongwen’s right to conduct a meaningful review in this regard.
The Appeals Chamber also takes note of the purpose of the Trial Chamber’s assessment of the Sample, which was to reach conclusions as to the victims entitled to 98 99 benefit from reparations and “[elaborate] on the relevant evidentiary criteria”. The direct impact of that assessment on the ultimate amount of the award for reparations appears to have been less significant than in other cases. In light of the “extremely large number of victims”, the Trial Chamber awarded “collective community-based reparations”, 100 rather than “collective reparations with an individualised component”, which it considered to be “resource-intensive, time consuming, and […] disproportionate to what could be achieved”. 101 The Trial Chamber also awarded a symbolic cash award of “the same ” amount to each victim. 102 ex aequo et bono The purpose for which the information contained in the victims’ dossiers was relied upon 103 was thus a relevant consideration.
In light of the foregoing considerations and the purpose of the Trial Chamber’s assessment of the dossiers of persons in the Sample, the Appeals Chamber considers that the Defence has not demonstrated that the Trial Chamber’s refusal to order the lifting of redactions unduly affected Mr Ongwen’s “meaningful opportunity to
96 See Ntaganda A6 A7 Judgment , para. 250. 97 Appeal Brief , para. 18. 98 Impugned Decision , para. 428. 99 Impugned Decision , para. 432. 100 Impugned Decision , para. 663. 101 Impugned Decision , para. 580; see also para. 787. 102 Impugned Decision , para. 623. 103 See Lubanga A7 A8 Judgment , para. 256; Ntaganda A6 A7 Judgment , para. 224.
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challenge the information on the basis of which [the Trial Chamber] [made the] award 104 against him”.
In this context, the Appeals Chamber further notes the Defence’s contention that due to its inability to properly investigate, it “only contested 27 victim applications”. 105 However, other than making a general statement that “it was denied the chance to 106 conduct a proper investigation”, the Defence does not explain why it could contest the eligibility of only 27 potential beneficiaries. Furthermore, it did not rely upon any purported difficulties in the conduct of its investigations when informing the Trial Chamber that it chose not to contest the eligibility of the remaining 178 potential beneficiaries. Rather, the Defence submitted before the Trial Chamber that “these applicants meet the lower threshold of presenting a causal link to the crimes for which Mr Ongwen was convicted”. 107 The Appeals Chamber therefore rejects this argument of the Defence as unsubstantiated.
Finally, the Appeals Chamber turns to the Defence’s argument that the redactions authorised by the Trial Chamber were unnecessary, as there were no credible instances of threats to victims or witnesses, and Uganda is “rather safe”, “without any significant LRA activity”. 108
The Appeals Chamber recalls in this regard that when ruling on requests for redactions in the reparations proceedings,
a trial chamber must take into account and balance the rights and interests of the parties as per article 68 of the Statute, which provides that “[t]he Court shall take appropriate measures to protect the safety […] of victims and witnesses. […] These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”. 109
In balancing the appropriate factors, a trial chamber must take into consideration, inter alia , “the danger that the disclosure of the identity of the person may cause” and
104 See Lubanga A7 A8 Judgment , para. 256. 105 Appeal Brief , para. 14; see also para. 18. 106 Appeal Brief , para. 14. Defence’s Submissions of 19 May 2023 107 , para. 21. 108 Appeal Brief , paras 15-17, 19. 109 Al Mahdi A Judgment , para. 90.
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“whether [the protective measure] is the least intrusive measure necessary to protect the 110 person concerned”.
When rejecting the Defence’s request for disclosure and deciding to maintain the redactions applied to the potential beneficiaries’ dossiers, the Trial Chamber referred to the legal representatives of victims’ submission that “the victims continue[d] to fear Mr Ongwen and […] remain[ed] concerned for their safety and that of their family 111 members upon his return after serving the sentence”. In their submissions, upon which the Trial Chamber relied, Victims Group 1 also referred to the “real fears that victims harbour against Dominic Ongwen and his friends in the LRA who have not 112 renounced rebellion or fighting and accordingly still pose threats”. The Trial Chamber thus identified the danger that the disclosure of the identity of potential beneficiaries might cause. Furthermore, the Trial Chamber found that “the Defence ha[d] not demonstrated how its ability to review and comment on the victims’ sample [was] affected by not knowing all the victims’ names, especially since […] the Defence 113 ha[d] been in fact able to review and comment on some of the victims’ eligibility”. Having regard to the limited impact of the redactions in question on the quality of the Defence’s submissions, as discussed above, the Appeals Chamber finds that the Defence has not demonstrated that the Trial Chamber erred by failing to “[strike] the required balance demanded by article 68(1) of the Statute” and in finding that it “enabl[ed] the Defence to make meaningful submissions on the victims’ eligibility”. 114 Accordingly, the Defence’s arguments in this regard are rejected.
Having rejected all arguments of the Defence, the Appeals Chamber rejects the first ground of appeal.
B. Second ground of appeal: Alleged errors in the Trial Chamber’s findings relating to domestic proceedings
Under this ground of appeal, the Defence submits that the Trial Chamber erred in law by misinterpreting article 75(6) of the Statute when it rejected the Defence’s request
110 Al Mahdi A Judgment , para. 90, referring to Katanga and Ngudjolo OA5 Judgment , para. 35. See also Ntaganda A6 A7 Judgment , para. 223. 111 Decision on Request for the Lifting of Redactions , para. 18, p. 10. Victims Group 1’s Submissions of 11 April 2023 112 , para. 15. 113 Decision on Request for the Lifting of Redactions , para. 19. 114 See Decision on Request for the Lifting of Redactions , para. 20. No: ICC-02/04-01/15 A3 22/90
concerning “dual claimants”, who, in the view of the Defence, benefit both from an
award made by the High Court of Uganda and from the award made in the Impugned
115 Decision. The Defence argues that the Trial Chamber thereby significantly increased
the amount of Mr Ongwen’s liability and failed to uphold its obligation to ensure
116 fairness to the victims and Mr Ongwen.
1 Relevant background and part of the Impugned Decision
a. Relevant submissions of the Defence before the Trial Chamber
In the Defence’s Submissions of 22 March 2023, the Defence notified the Trial
Chamber, the parties and the participants of the Uganda High Court Decision of
117 21 February 2023. According to the Defence, by this decision, the High Court of
Uganda awarded compensation to former owners of property on which many IDP
118 camps, including Abok IDP camp, were located from 2003 to 2007. The Defence
requested the Trial Chamber to “order [Victims Group 1], [Victims Group 2] and
Registry to determine if any victims are beneficiaries of this award”. 119
In the Defence’s Notification of 24 October 2023, the Defence notified the Trial
Chamber of the list of names of the persons who would benefit from the aforementioned
decision of the High Court of Uganda, noting that “several names […] are either
identical or very similar to persons from victim applications for participation from
Abok”. 120 The Defence requested the Trial Chamber to consider this list “when
determining reparations for persons from Abok IDP camp”. 121
b. Relevant part of the Impugned Decision
In relation to the Defence’s Notification of 24 October 2023, the Trial Chamber
rejected the Defence’s request concerning the Uganda High Court Decision of
21 February 2023, “reiterat[ing] that pursuant to article 75(6) of the Statute, domestic
122 proceedings do not impact reparations before the Court”.
115 Appeal Brief , paras 20, 22, 27, 29. 116 Appeal Brief , paras 20, 26, 28-29. Defence’s Submissions of 22 March 2023 117 , para. 17. Defence’s Submissions of 22 March 2023 118 , para. 17. Defence’s Submissions of 22 March 2023 119 , para. 17. Defence’s Notification of 24 October 2023 Defence’s Notification of 120 , paras 12-13; Annex A to 24 October 2023 . Defence’s Notification of 24 October 2023 121 , para. 12. 122 Impugned Decision , para. 49.
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2 Summary of the submissions
The Defence submits that the Trial Chamber erred in law by misinterpreting
article 75(6) of the Statute when it rejected the Defence’s request to take into account
the Uganda High Court Decision of 21 February 2023, which, in its view, may
123 potentially concern victims from the IDP camp in Abok. In support, the Defence
contends that: (i) “there shall be an overlap between the victims participating in the
proceedings before the Court and individuals receiving reparations in national civil suit
cases”; 124 and that (ii) on the basis of the exception established by the Court’s
jurisprudence to “the general propositions regarding the complementary nature of
reparations”, the Trial Chamber has “an obligation to investigate and adjust the
125 reparations accordingly to ensure fairness to the victims and Mr Ongwen”. The
Defence avers that the Trial Chamber’s failure to consider the domestic proceedings in
Uganda will lead to unfairness among the victims, some of whom may “be enriched
more than others”, 126 and will significantly increase the amount of Mr Ongwen’s
127 liability.
Victims Group 1 submit that the Trial Chamber correctly interpreted article 75(6)
of the Statute, and that the finding in the Lubanga Reparation Decision upon which the
Defence relies “does not stand in contrast” with the Impugned Decision. 128 Referring
to “legal accountability of the convicted person […] for violations of the [Statute] and
harms arising from such violations”, Victims Group 1 aver that the scope of the
Impugned Decision is limited to the Conviction Decision, and the Uganda High Court
Decision of 21 February 2023, which addresses “other harms, committed by other
people” and not “violations of the [Statute]”, cannot have an impact on the Impugned
129 Decision. Victims Group 1 argue that, even if there was an overlap between the
present proceedings and the domestic proceedings, as the Defence claims, “the victims
in issue would be seeking reparations for a different harm”. 130
123 Appeal Brief , paras 20, 28-29, referring to Impugned Decision , para. 49. 124 Appeal Brief , para. 28. 125 Appeal Brief , paras 23-26, 28-29, referring to Lubanga Reparation Decision , para. 201; Lubanga Amended Reparation Order , para. 9; Ntaganda First Decision on Implementation , para. 191. 126 Appeal Brief , para. 28. 127 Appeal Brief , paras 20, 29. Victims Group 1’s Response 128 , paras 26-28. Victims Group 1’s Response 129 , paras 28-29. Victims Group 1’s Response 130 , para. 29.
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Victims Group 2 submit that this ground of appeal should be “dismissed”, 131 as
the Defence merely seems to express its disagreement with the Trial Chamber’s
132 findings in the Impugned Decision. Victims Group 2 argue that the wording of
article 75(6) of the Statute is clear, and that the finding of the Appeals Chamber in the
Lubanga Amended Reparation Order upon which the Defence relies clearly indicates
“a discretionary ability”, rather than “a mandatory requirement”, of the Court “to take
into account any awards or benefits received by victims from other bodies”. 133 They
also submit that remanding this issue to the Trial Chamber would not change the
outcome of the Impugned Decision, considering that reparations in the present case
have been ordered on a collective community basis rather than individually, and that
the Trial Chamber already took into account “the absence of any awards or benefits
received by the victims from other entities”, as well as the relevant evidence and
134 submissions.
3 Determination by the Appeals Chamber
Under this ground of appeal, the Defence submits that the Trial Chamber
misinterpreted article 75(6) of the Statute in declining to consider whether there are any
“dual claimants” benefiting from the Uganda High Court Decision of 21 February 2023
and the Impugned Decision, and in holding that “pursuant to article 75(6) of the Statute,
domestic proceedings do not impact reparations before the Court”. 135
The Appeals Chamber recalls at the outset that pursuant to article 75(6) of the
Statute, “[n]othing in [article 75 of the Statute] shall be interpreted as prejudicing the
”. 136 rights of victims under national or international law With respect to this provision,
the Appeals Chamber found that “[a] decision of the Court on reparations should not
operate to prejudice the rights of victims under national and international law”, 137 and
that the “principles and the order for reparations [set out in the Lubanga case] are not
intended to affect the rights of victims to reparations in other cases , whether before the
Court or national, regional or other international bodies”. 138 In the same vein, Trial
Victims Group 2’s Response 131 , para. 45. Victims Group 2’s Response 132 , para. 36. Victims Group 2’s Response 133 , para. 37, referring to Lubanga Amended Reparation Order , para. 9. Victims Group 2’s Response 134 , para. 44. 135 Appeal Brief , paras 20-22, 29, referring to Impugned Decision , para. 49. 136 Emphasis added. 137 Lubanga Amended Reparation Order , para. 9. 138 Lubanga Amended Reparation Order , para. 4 (emphasis added).
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Chamber II, in the Katanga Reparation Order, found that “[a]n order for reparations does not […] relieve States Parties of the responsibility to award reparations to victims 139 pursuant to other treaties or domestic legislation”. Article 75(6) of the Statute thus mainly concerns any prejudice that the Impugned Decision may cause to the victims’ rights in the national proceedings.
The Defence appears to propose a broader interpretation of article 75(6) of the Statute in that a trial chamber has “an obligation to investigate and adjust the reparations” to account for any awards or benefits received by victims in other 140 proceedings. In support of its proposition, the Defence refers to: (i) the finding in the Lubanga Reparation Decision and the Lubanga Amended Reparation Order that “the Court is able to take into account any awards or benefits received by victims from other bodies in order to guarantee that reparations are not applied unfairly or in discriminatory manner”; 141 and (ii) the finding in the Ntaganda First Decision on Implementation that “if victims have had their harm rectified or mitigated through other means of assistance in the [Democratic Republic of the Congo], then this will be taken into account during their intake assessments , when it is being determined which treatments they require”. 142
In the view of the Appeals Chamber, these findings do not support the Defence’s proposed interpretation of article 75(6) of the Statute. They do not indicate that a trial chamber, when issuing a reparation order, has an obligation to investigate and consider any awards or benefits that victims may have received from other bodies. Rather, as clearly pronounced in the Lubanga Amended Reparation Order, “decisions by other bodies, whether national or international, do not affect the rights of victims to receive reparations pursuant to article 75 of the Statute”. 143
Furthermore, the Appeals Chamber recalls that an order for reparations is “intrinsically linked to the individual whose criminal responsibility is established in a
139 Katanga Reparation Order , para. 323. para. 27 (“it was desirable that the [Trial] Chamber investigates about 140 Appeal Brief , para. 28; see also other forms of reparations [that] were being given”). 141 Appeal Brief , paras 23-24, referring to Lubanga Reparation Decision , para. 201 (emphasis added); Lubanga Amended Reparation Order , para. 9 (emphasis added). 142 Appeal Brief , para. 25, referring to Ntaganda First Decision on Implementation , para. 191 (emphasis added). 143 Lubanga Amended Reparation Order , para. 9.
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conviction and whose culpability for those criminal acts is determined in a sentence”. 144
Therefore, “at the reparations stage, the focus is […] on repairing the harm that has
145 resulted from the crimes in question”. Even in cases where other individuals may also have contributed to the harm, “it is not, per se , inappropriate to hold the person
146 liable for the full amount necessary to repair the harm”.
In light of the above, the Appeals Chamber considers that the Defence does not
demonstrate that in the case at hand the Trial Chamber was under any “obligation to
147 investigate and adjust the reparations accordingly” in relation to national proceedings
concerning compensation from state authorities. The Appeals Chamber notes in this regard that, in concluding that “domestic proceedings do not impact reparations before
the Court”, 148 the Trial Chamber correctly noted that “[t]he right of victims to obtain
reparations before the ICC is linked to their rights under international criminal law – as
the source and origin of this right – and is to be distinguished from the victims’ rights
149 under domestic law or international human rights law”. The Trial Chamber also duly considered that “reparations proceedings [before the Court] [are] strictly limited in
reach and scope to the terms of the conviction”. 150 Accordingly, the Appeals Chamber
finds that the Defence has failed to show any error in the Trial Chamber’s interpretation
of the relevant legal framework.
Moreover, the Appeals Chamber recalls that “the Court is able to take into
account any awards or benefits received by victims from other bodies in order to
151 guarantee that reparations are not applied unfairly or in discriminatory manner”. However, other than asserting that “there shall be an overlap” between the individuals
who may receive compensation from the government of Uganda and the victims
152 participating in the reparation proceedings before the Court, the Defence does not
demonstrate that there is any overlap that the Trial Chamber might have been able to take into account. In this regard, the Appeals Chamber first notes Victims Group 1’s
144 Lubanga A-A3 Reparations Judgment , para. 65 (emphasis in original); Lubanga Amended Reparation Order , para. 20 (emphasis in original). 145 Katanga A3-A5 Appeal Judgment , para. 179. 146 Katanga A3-A5 Appeal Judgment , para. 178. 147 Appeal Brief , para. 28. 148 Impugned Decision , para. 49. 149 Impugned Decision , para. 48. 150 Impugned Decision , para. 49. 151 Lubanga Amended Reparation Order , para. 9 (emphasis added). 152 Appeal Brief , para. 28.
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submission that the Uganda High Court Decision of 21 February 2023 concerns “other harms” which do not arise out of a violation of the Statute. 153 Indeed, the Appeals
Chamber observes that the decision of the High Court of Uganda addresses harms
arising out of an alleged violation, by the government of Uganda, of the land owners’ “right to property and to a clean environment”, 154 and not from any crimes under the
Statute.
In this context, the Appeals Chamber additionally notes the submission of
Victims Group 2 that the existence of the same names on the list of participating victims is “not conclusive evidence” of the overlap claimed by the Defence, considering that it
155 is very common for several individuals to share the same name in Northern Uganda.
The Appeals Chamber also notes that the plaintiffs in the aforementioned case before 156 the High Court of Uganda are the owners of the land on which IDP camps were set. In their civil suit, the plaintiffs indicate that “[t]he big population of IDPs destroyed the
plaintiffs’ environment”. 157 This appears to suggest that they were not IDPs themselves,
unlike the most of the victims in the present case before this Court.
In view of the foregoing, the Appeals Chamber rejects, as unsubstantiated and in
any event irrelevant, the Defence’s contentions regarding the alleged overlap between
the plaintiffs in the case before the High Court of Uganda and the victims in the present
case.
Having rejected all of the Defence’s arguments, the Appeals Chamber rejects the
second ground of appeal.
Victims Group 1’s Response 153 , para. 29. 154 Uganda High Court Decision of 21 February 2023 , p. 4. The Appeals Chamber notes that this decision concerned the government of Uganda’s “policy of creation of IDP camps” between 2003 and 2007 on the land of the land owners in Lango ( Uganda High Court Decision of 21 February 2023 , p. 1). In this decision, the High Court of Uganda ordered the government of Uganda to pay the land owners, inter alia , (i) “compensation for the arbitrary and unlawful deprivation of the right to a clean and sustainable environment, land that has been rendered infertile” ( Uganda High Court Decision of 21 February 2023 , p. 6); (ii) “general damages for the suffering they [had] been undergoing” ( Uganda High Court Decision of 21 February 2023 , p. 7); (iii) “exemplary damages” for “the acts and conduct of the [government of Uganda]” which were “oppressive, arbitrary and unconstitutional” ( Uganda High Court Decision of 21 February 2023 , p. 8); and (iv) “the cost of restoring the environment” ( Uganda High Court Decision of 21 February 2023 , p. 9). Victims Group 2’s Response 155 , para. 39. 156 Uganda High Court Decision of 21 February 2023 , p. 1. 157 Uganda High Court Decision of 21 February 2023 , p. 2.
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C. Third ground of appeal: Alleged erroneous presumption regarding residents of IDP camps and non-residents present at the time of the attacks
Under this ground of appeal, the Defence submits that the Trial Chamber erred in law and in fact by presuming that civilian residents of Pajule, Odek, Lukodi and Abok IDP camps and non-residents who were present in these camps at the time of the attacks were victims of the war crime of attack against the civilian population and 158 persecution.
1 Relevant part of the Impugned Decision In relation to the crimes of attack against the civilian population and persecution through the underlying act of attack against the civilian population as such, the Trial 159 Chamber adopted separate presumptions concerning victimhood and harm.
Regarding the presumption of victimhood, the Trial Chamber found that
all individuals who can establish, on a balance of probabilities, that they were present in or who were camp residents at the time of the attacks on the Pajule, Odek, Lukodi, and Abok IDP camps, shall be presumed to be victims of the crimes of an attack against the civil population as such and persecution, through 160 the underlying act of attack against the civilian population as such. The Trial Chamber “consider[ed] it evident that every camp resident, even if not physically present at the exact moment of the attacks, would have been severely impacted by the attacks on their community, homes, relatives, and neighbours, and 161 would have, as a result, suffered […] from the attacks”.
The Trial Chamber also adopted a presumption of moral harm with respect to
all individuals who have established, on a balance of probabilities, to have personally experienced the attacks and are direct victims of crimes against persons committed during and in the aftermath of the attacks, including attacks against the civilian population as such; […] and persecution, through [ inter alia ] 162 the underlying acts of attack against the civilian population as such.
158 Appeal Brief , paras 30-37. 159 Impugned Decision , paras 136-165, 518-557. 160 Impugned Decision , para. 165; see also paras 103, 111, 163-164, 713, 718, 725. 161 Impugned Decision , para. 163. 162 Impugned Decision , para. 525.
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The Trial Chamber therefore pointed out that “individuals who were not present
and did not personally experience the attacks will have to demonstrate that they suffered
163 moral harm as a result of the attacks”.
2 Summary of the submissions
The Defence submits that the Trial Chamber abused its discretion when adopting
the presumption that every resident of the four IDP camps, even if not present at the
time of the attacks, and all non-residents who were present during the attacks are
victims of an attack against the civilian population and persecution, and requests the
164 Appeals Chamber to overturn this “presumption of harm”. It avers that “[r]esidents
of an IDP camp who were not present for the attack should not be presumed victims”,
165 as “one cannot be attacked if he or she is not present”. Similarly, it submits that
persons who were present in one of the four IDP camps during the attack but did not
166 have any interactions with the LRA or the UPDF should not be presumed victims.
The Defence contends that, in both scenarios, if such persons “cannot prove some other
167 harm, they should not be eligible for reparations”.
Victims Group 1 argue that the Defence “misinterprets and or misconstrues” the
Trial Chamber’s findings regarding residents of the IDP camps and other persons
168 present during the attacks. They submit that the Defence’s allegations in this regard
are “wrong both in fact and in law”, considering “the nature of the attacks, their
169 dynamic and circumstances”. Victims Group 1 further aver that the Defence failed
to establish “what error of law was occasioned” and “that no reasonable trier of fact
could have formulated” the aforementioned presumption. 170
Victims Group 2 submit that the Defence fails to show that the Trial Chamber
171 committed any error. They contend that residents of IDP camps, even if not present
in the camps at the time of the attacks, can suffer harm “through the destruction and
pillage of their property, violence against their family, friends, and community, and the
163 Impugned Decision , para. 525 (emphasis added). 164 Appeal Brief , para. 33. 165 Appeal Brief , para. 34. 166 Appeal Brief , para. 35. 167 Appeal Brief , paras 34-35. Victims Group 1’s Response 168 , para. 31; see also para. 34. Victims Group 1’s Response 169 , para. 35. Victims Group 1’s Response 170 , para. 36. Victims Group 2’s Response 171 , para. 47.
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psychological toll of such occurrences”. 172 Victims Group 2 argue that “the presence of a non-resident during [the] attacks […] strongly suggests that they were also a target of 173 the attack, regardless of whether they were physically or financially harmed”. Victims Group 2 submit that the presumptions adopted by the Trial Chamber are 174 therefore “the most logical” in the circumstances of this case.
3 Determination by the Appeals Chamber
a. Whether the Trial Chamber erred in presuming that all residents of the IDP camps were victims of the crimes
The Defence submits that the Trial Chamber abused its discretion when adopting the presumption that every resident of the four IDP camps, even if not present during the attack, is a victim of the crimes of an attack against the civilian population and 175 persecution through the underlying act of an attack against the civilian population.
At the outset, the Appeals Chamber recalls that, “bearing in mind the standard of review, a party challenging a factual presumption must demonstrate that no reasonable trier of fact could have formulated the presumption in question in light of the particular set of circumstances in that case”. 176
Under the presumption of victimhood adopted by the Trial Chamber, “individuals who were […] residents of the four IDP camps at the time of the attacks on said camps” are presumed to be “victims of the crimes of attack against the civil[ian] population as such and persecution through the underlying act of attack against the civilian population”, if they “establish, on a balance of probabilities, that they were either a 177 resident of or physically present in one of the camps at the time of the attacks”. This presumption also applies to residents who were “not physically present at the exact moment of the attacks”. 178
The Appeals Chamber notes that in support of this presumption of victimhood, the Trial Chamber noted that “the attack against the civilian population […] is a conduct
Victims Group 2’s Response 172 , para. 47. Victims Group 2’s Response 173 , para. 48. Victims Group 2’s Response 174 , para. 48. 175 Appeal Brief , paras 33-34, 36. 176 Katanga A3-A5 Judgment , para. 77; Ntaganda A4 A5 Judgment , paras 32, 696. 177 Impugned Decision , para. 164. 178 Impugned Decision , paras 163-164.
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crime, meaning that the completion of the act itself is sufficient to qualify as a criminal
violation, and as such, does not depend on a particular result”. 179 Furthermore, the Trial
Chamber pointed out that “the attack against a civilian population does not necessarily
require or depend on the presence of all or even a large number of residents at the
180 camps, but simply that the residents were in fact residing in the targeted camps”. The
Trial Chamber further found that “every camp resident, even if not physically present
at the exact moment of the attacks, would have been severely impacted by the attacks
on their community, homes, relatives, and neighbours, and would have, as a result,
181 suffered all the same from the attacks themselves”. In making this finding, it relied
upon the Conviction Decision which “highlighted the densely populated nature of the
182 IDP camps, with houses often being built less than a metre apart”. In addition, when
describing the context of the attacks, the Trial Chamber referred to findings in the
Conviction Decision concerning the large number of people living in the camps: 15,000
183 184 to 30,000 in the Pajule IDP camp, between 2,000 and 3,000 in the Odek IDP camp,
“a large contingent of civilians” in the Lukodi IDP camp 185 and “at least 7,000 to just
over 13,000” in the Abok IDP camp. 186 The Trial Chamber recalled its findings in the
Sentencing Decision that “[t]he attacks were executed by a large number of LRA
fighters armed with an assortment of weapons, including firearms”. 187 The Trial
Chamber also referred to “the poor living conditions in the camps due to lack of food
188 and access to water and adequate health facilities”.
The Appeals Chamber notes in this regard that the Defence did not specifically
oppose the adoption of this presumption when it was proposed by the Registry before
189 the Trial Chamber. The Defence only alluded to this issue in its submissions on the
estimated number of victims, without clearly voicing its concerns regarding the
179 Impugned Decision , para. 163. 180 Impugned Decision , para. 163. 181 Impugned Decision , para. 163. 182 Impugned Decision , para. 163, referring to Conviction Decision , paras 1536, 1540. 183 Impugned Decision , para. 98, referring to Conviction Decision , paras 144, 1174. See also Impugned Decision , fn 730, referring to Sentencing Decision , para. 150. 184 Impugned Decision , para. 99, referring to Conviction Decision , paras 159, 1384. See also Impugned Decision , fn 730, referring to Sentencing Decision , para. 185. 185 Impugned Decision , para. 100, referring to Conviction Decision , paras 178, 1644. 186 Impugned Decision , para. 101, referring to Conviction Decision , paras 190, 1858. 187 Impugned Decision , para. 210, referring to Sentencing Decision , paras 143, 149, 185, 223, 258-259. 188 Impugned Decision , para. 163, referring to Conviction Decision , para. 1105. Defence’s Submissions of 7 March 2022 189 Impugned Decision , para. 160. See also , paras 35-41.
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presumption proposed by the Registry. It argued that any increase in the number of potential beneficiaries resulting from visits to the Pajule IDP camp for a festivity was negated by “residents [who] left the camp to celebrate with friends and family at other camps”. 190 It is therefore inappropriate that the Defence raises these concerns only on appeal, despite having had the opportunity to bring them to the attention of the Trial Chamber such that it could consider them when deciding on whether to adopt that 191 presumption.
In any event, the Defence fails to demonstrate that the above presumption of victimhood is unreasonable. In support of its argument, the Defence only asserts that “one cannot be attacked if he or she is not present” and that “[i]t defies common sense and logic” to “[require] Mr Ongwen to pay reparations to persons who never saw an 192 attack”. The Defence does not refer to any of the aforementioned considerations, upon which the Trial Chamber relied, and does not explain why they “def[y] common sense and logic”.
The Appeals Chamber further notes that the Defence appears to confuse the above-mentioned presumption of victimhood with a presumption of harm adopted by the Trial Chamber with respect to the victims of the same crimes. Indeed, the Defence requests the Appeals Chamber to overturn “the presumption of harm for persons who lived at the IDP camps at the time of the attack and those persons who were present” and “rule that all persons must prove to the appropriate standard that they suffered some 193 sort of harm”.
The Appeals Chamber notes in this regard that the Trial Chamber clearly 194 considered victimhood and harm as two distinct elements of a reparation order. Accordingly, the Trial Chamber discussed the aforementioned presumption of
Defence’s Submissions of 22 March 2023 190 , para. 19. Blaškić 191 See Sentencing Appeal Judgment , para. 108; Ongwen OA3 Judgment , para. 45. See also Appeal Judgment , para. 222. 192 Appeal Brief , para. 34. 193 Appeal Brief , para. 37 (emphasis added). 194 Impugned Decision , para. 89 (“[A] reparations order must contain, at a minimum, five essential elements: […] (ii) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted (‘Second Element: Victims’); (iii) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted […] (‘Third Element: Harm’); […]”).
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victimhood in the section of the Impugned Decision concerning the “Second element:
Victims” 195 and the above-mentioned presumption of harm in the section concerning
the “Third element: Harm”. 196 Each of these presumptions relates to a distinct condition
of eligibility. The presumption of victimhood relates to the issue of “whether the
victim’s account corresponds to the [Trial] Chamber’s findings as to the crimes for
197 which Mr Ongwen was convicted”. By contrast, the said presumption of harm relates
to the requirement that “the person [must] [establish], on a balance of probabilities, the
198 existence of the alleged harm”. The Trial Chamber makes it clear that both these
requirements must be met in order for a person to be eligible to benefit from
199 reparations.
It follows that, under the Trial Chamber’s approach, individuals who are
presumed to be victims of the crimes in question are not automatically considered to be
eligible for reparations. Rather, they still need to prove that they suffered harm caused
by those crimes. Among the persons who benefit from the aforementioned presumption
of victimhood, only those who “have personally experienced the attacks” will benefit
200 from the above-mentioned presumption of moral harm. By contrast, “individuals
who were not present and did not personally experience the attacks” will not benefit
201 from that presumption of harm. Rather, they will “have to demonstrate, at the
required balance of probabilities threshold, that they suffered moral harm as a result of
202 the attacks”.
The Appeals Chamber therefore finds that the Trial Chamber was mindful of the
possibility that some residents of the IDP camps who were absent from the camps at
the time of the attacks might have suffered no moral harm. It decided not to adopt a
195 Impugned Decision , paras 163-165. 196 Impugned Decision , paras 524-525. 197 Impugned Decision , para. 457. 198 Impugned Decision , para. 435. 199 Impugned Decision , para. 435 (“In order to be found eligible to benefit from reparations, victims need to comply with the following requirements: […] ii. Second requirement: […] whether the person has established, on a balance of probabilities, to be a direct victim of at least one of the crimes committed in the context of the attacks against the Pajule, Lukodi, Odek, or Abok IDP camps, and for which Mr Ongwen was convicted; and or of at least one of the thematic crimes for which Mr Ongwen was convicted. […] iii. Third requirement: whether the person has established, on a balance of probabilities, the existence of the alleged harm; […]”). 200 Impugned Decision , para. 524. 201 Impugned Decision , para. 525. 202 Impugned Decision , para. 525.
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presumption of moral harm for all residents of the IDP camps, including those who were absent. Having carefully considered the presumption of victimhood in question, together with this presumption of moral harm, the Appeals Chamber finds that the Defence has failed to show that these presumptions are “overarching” and would “[open] the floodgates to abuse of the reparations system” by “frivolous claims”. 203
In light of the above, the Appeals Chamber considers that the Defence has not demonstrated that no reasonable trier of fact could have formulated the presumption that all residents of Pajule, Odek, Lukodi and Abok IDP camps were victims of the crimes of attack against the civilian population as such and persecution through the underlying act of attack against the civilian population. The Appeals Chamber rejects the Defence’s argument in this regard.
b. Whether the Trial Chamber erred in presuming that all persons present in the IDP camps at the time of the attack were victims of the crimes
The Defence argues that persons who did not suffer from any interactions with the LRA or the UPDF and “did not experience any of the attack” should not be 204 presumed victims.
In addition to the aforementioned residents of the four IDP camps, the presumption of victimhood adopted by the Trial Chamber applies to “individuals who 205 were present in […] the four IDP camps at the time of the attacks on said camps”. In order to benefit from this presumption, potential beneficiaries must “establish, on a balance of probabilities, that they were […] physically present in one of the camps at the time of the attacks”. 206
The Appeals Chamber recalls the considerations upon which the Trial Chamber 207 relied to support the presumption of victimhood in this respect.
As indicated above, the Defence also appears to challenge the presumption of harm adopted by the Trial Chamber with respect to victims of the same crimes. In this
203 Appeal Brief , para. 36. 204 Appeal Brief , para. 35. 205 Impugned Decision , para. 164. 206 Impugned Decision , para. 164. 207 See paragraph 86 above. No: ICC-02/04-01/15 A3 35/90
respect, when discussing presumptions of harm related to victims of Mr Ongwen’s crimes, including attacks against the civilian population and persecution, the Trial Chamber took into account its assessment of the Sample which allowed it “to estimate that a very high percentage of these victims indeed suffered moral harm, with approximately 90% of all direct victims of the attacks and of each of the crimes having 208 demonstrated […] to have suffered moral harm”. The Trial Chamber considered that “it is inherent to human nature that all those subjected to brutal acts […] experience 209 intense suffering, anguish, terror and insecurity”.
The Appeals Chamber considers that the Defence has not identified any error in the Trial Chamber’s adoption of the aforementioned presumptions of victimhood and harm. The Defence merely asserts that the individuals in question “should not be 210 presumed victims”, without engaging with any of the foregoing considerations. Having regard to the factors which the Trial Chamber took into consideration, the Appeals Chamber finds that the Defence has not demonstrated that no reasonable trier of fact could have formulated the presumptions of victimhood and harm concerning individuals present at the four IDP camps at the time of the attacks. It therefore rejects the Defence’s argument in this regard.
c. Overall conclusion
Having rejected all arguments of the Defence, the Appeals Chamber rejects the third ground of appeal.
D. Fourth, eleventh and twelfth grounds of appeal: Alleged errors concerning the Trial Chamber’s consideration of the Acholi traditional and cultural factors and mechanisms
At the outset, the Appeals Chamber notes that the Defence has grouped the fourth, eleventh and twelfth grounds of appeal without making a distinction between “the legal and/or factual reasons in support of each ground of appeal”, as required by regulation 58(2) of the Regulations. As a result, it is unclear which arguments relate to which ground of appeal. The Appeals Chamber reiterates that this practice infringes on
208 Impugned Decision , para. 523 (footnotes omitted). 209 Impugned Decision , para. 523, referring to Ntaganda Addendum to Reparation Order , para. 146; Katanga Reparation Order , para. 128. 210 Appeal Brief , para. 35. No: ICC-02/04-01/15 A3 36/90
regulation 58(2) of the Regulations and reminds the Defence of its duty to comply, at 211 all times, with the procedural regime applicable before the Court. Nevertheless, in order to prevent any prejudice to Mr Ongwen’s rights, the Appeals Chamber will address these arguments together.
Under these grounds of appeal, the Defence, in essence, submits that the Trial Chamber’s allegedly erroneous consideration of the Acholi traditional and cultural factors and mechanisms significantly increased the number of indirect victims of the Pajule, Odek, Lukodi and Abok attacks, as well as the scope of Mr Ongwen’s 212 liability.
1 Relevant part of the Impugned Decision The Trial Chamber recognised “the family members of direct victims” as a The Trial Chamber noted that “due regard ought to be 213 category of indirect victims. given” to the “social and familial structures in the affected communities” with the understanding that the concept of family may extend “beyond the strict frame of a couple and their children”. 214 However, the Trial Chamber underscored that the family members of direct victims must “demonstrate to have suffered personal harm as a result of the commission of the crime against the direct victim and a causal link between their harm and the crimes”, in order to establish an indirect victim status. 215
The Trial Chamber also found that “the crimes of pillaging and destruction of property for which Mr Ongwen was convicted” caused harm to the victims of the attacks, as these crimes prevented the victims from “engaging in and performing 216 traditional rituals and customs that are culturally important to them”.
The Trial Chamber considered evidence of the phenomenon of cen , which “represents the vengeful spirits of those who have died a violent death”. 217 The Trial Chamber concluded that it had been established, on a balance of probabilities, that
211 See Conviction Appeal Judgment , para. 38. 212 Appeal Brief , paras 39-40, 42, 52-59, 65-66. 213 Impugned Decision , para. 128. 214 Impugned Decision , para. 131. 215 Impugned Decision , paras 128, 132. 216 Impugned Decision , para. 398. 217 Impugned Decision , para. 240.
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direct and indirect victims of the attacks and direct victims of the crimes against child 218 soldiers suffered moral harm which includes “spiritual disturbances”.
2 Summary of the submissions
a. Defence’s submissions
The Defence submits that the Trial Chamber erred in law by failing to provide a 219 reasoned opinion with respect to the concept of the “African extended family”, and in fact by applying its “overly broad” understanding of the concept in its determination 220 concerning indirect victims of the attacks. According to the Defence, the Trial Chamber’s errors in this regard increased the number of victims eligible for reparations, and thereby the scope of Mr Ongwen’s liability. 221
The Defence also submits that when finding that the crimes of pillaging and destruction of property caused harm to the victims of the attacks by preventing them from performing traditional rituals, the Trial Chamber failed to “explicitly recognise” the “complementarity role” of the Acholi traditional and cultural mechanisms of restorative justice such as mato oput , despite “overwhelming evidence” concerning 222 their relevance. Lastly, it alleges that the Trial Chamber mischaracterised cen by “equating it to mental illness in Western medicine”. 223
The Defence requests that the Appeals Chamber reverse the Trial Chamber’s decision on the “African extended family” and remand the issue back to it for further investigations on the “cultural and social dynamics of the Acholi people […] in the 224 different regions in [N]orthern Uganda”.
b. Victims Group 1’s submissions
With respect to the concept of the “African extended family”, Victims Group 1 submit that the Defence’s arguments in this regard are “erroneous and placed out of context” of the Impugned Decision, as the Trial Chamber’s consideration of the concept was “strictly” in the context of the category of “the family members of direct victims”,
218 Impugned Decision , paras 242, 269, 369, 414(a)(ii), 414(b)(i), 414(f)(ii); see also paras 240, 368. 219 Appeal Brief , paras 39, 41-42, 65. 220 Appeal Brief , paras 40, 52, 54, 65. 221 Appeal Brief , paras 42, 52, 54, 65. 222 Appeal Brief , paras 58-59. 223 Appeal Brief , paras 55, 57. 224 Appeal Brief , para. 66. No: ICC-02/04-01/15 A3 38/90
225 and not indirect victims in general. Moreover, in their view, the Defence’s allegations
concerning the concept demonstrate its failure to comprehend the Impugned Decision
which imposes an obligation on each indirect victim “to demonstrate that they have
226 suffered harm on a balance of probabilities as result of the crime on the direct victim”.
Regarding the Trial Chamber’s presumption of harm to all inhabitants and
non-inhabitants of the four IDP camps, Victims Group 1 aver that the Defence makes
“a false allegation”, since the Trial Chamber reached this conclusion on the basis of the
evidence in the record of the case and the Sample, as well as the relevant jurisprudence
227 of the Appeals Chamber.
Victims Group 1 also submit that the Defence’s arguments regarding the
complementarity role of the Acholi cultural mechanisms are “of no factual relevance”
to the Trial Chamber’s determination of reparations under the Statute. 228 As regards the
Defence’s submissions concerning cen , Victims Group 1 contend that the Defence fails
229 to substantiate its argument, and that the Trial Chamber’s findings relating to moral
harm suffered by victims are based on the relevant findings in the Conviction Decision
230 and the evidence from the trial proceedings.
c. Victims Group 2’s submissions
Victims Group 2 submit that these grounds of appeal “should be dismissed” for
231 the following reasons. As regards the concept of the “African extended family”,
Victims Group 2 contend that (i) the Trial Chamber did not adopt a broad concept that
232 is inconsistent with the evidence in the case record; (ii) the particularities of the
233 Acholi culture were addressed at trial; and (iii) whichever concept of family the Trial
234 Chamber adopted, it had no major consequences on the number of indirect victims.
In respect of the relevance of the Acholi traditional and cultural mechanisms,
Victims Group 2 argue that the Defence misrepresents the Impugned Decision, merely
Victims Group 1’s Response 225 , para. 39. Victims Group 1’s Response 226 , paras 40, 44. Victims Group 1’s Response 227 , para. 45. Victims Group 1’s Response 228 , para. 48. Victims Group 1’s Response 229 , para. 50. Victims Group 1’s Response 230 , para. 49. Victims Group 2’s Response 231 , paras 45, 56, 73. Victims Group 2’s Response 232 , paras 49-50. Victims Group 2’s Response 233 , para. 51. Victims Group 2’s Response 234 , para. 51.
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disagrees with the Trial Chamber’s conclusions and attempts to re-litigate the issues
235 that have already been considered by the Trial Chamber. Concerning the alleged
mischaracterisation of cen , Victims Group 2 aver that the Defence seeks to reverse the
236 factual findings of the Trial Chamber that have already been confirmed on appeal.
They emphasise that, regardless of how cen manifests itself, the Trial Chamber
correctly found that the victims in the present case suffered moral harm as a direct
237 consequence of the crimes of which Mr Ongwen was convicted.
3 Determination by the Appeals Chamber
Under these grounds of appeal, the Defence alleges errors in relation to the Trial
Chamber’s consideration of the concept of extended family, 238 as well as the Acholi
traditional and cultural mechanisms and factors such as mato oput and cen , the
complementarity role of which, it submits, the Trial Chamber failed to explicitly
239 recognise. The Appeals Chamber will address these arguments in turn.
a. Alleged errors concerning the concept of extended family
i. Alleged failure to provide any evidential basis for the concept of extended family
The Appeals Chamber notes the Defence’s submission that the Trial Chamber
relied solely upon the Ntaganda Reparation Order and failed to provide any “credible
evidential basis” with respect to the concept of extended family. 240 In this regard, the
Appeals Chamber notes that the Trial Chamber recalled “its understanding of the
concept of extended family in the Acholi cultural practice” from the Conviction
Decision, “whereby a woman may refer to all of the children born into her husband’s
family as her own children, and that children born into the same extended family may
refer to each other as siblings”. 241 242 Contrary to the Defence’s contention, the finding
in the Conviction Decision, to which the Trial Chamber referred, was supported by the
243 evidence on the record of this case. Moreover, the Trial Chamber took into account
Victims Group 2’s Response 235 , para. 40. Victims Group 2’s Response 236 , para. 66. Victims Group 2’s Response 237 , para. 67. 238 Appeal Brief , paras 39, 40-42, 52-54, 65. 239 Appeal Brief , paras 55, 57-59. 240 Appeal Brief , paras 39, 41-42, 65. 241 Impugned Decision , para. 129, referring to Conviction Decision , para. 483, fn 837. 242 Appeal Brief , para. 42. 243 Conviction Decision , para. 483, fn 837.
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244 the relevant submissions of the parties and the participants, as well as previous 245 jurisprudence of the Court.
Regarding the Defence’s argument that the Trial Chamber ought to have sought 246 expert evidence on the concept of extended family, the Appeals Chamber notes that 247 the Defence did not request the Trial Chamber to seek such evidence. The Defence also does not explain how expert evidence would have informed the Trial Chamber’s decision on the eligibility criteria for indirect victims. The Appeals Chamber recalls that the Trial Chamber required family members of direct victims to demonstrate 248 personal harm and a causal link, while pointing out that “it is not relevant whether 249 the family member is close or distant to the direct victim in the abstract”. It is unclear from the Defence’s submissions how the criteria formulated in this manner would have been different, had the Trial Chamber received expert evidence.
In light of the foregoing, the Appeals Chamber rejects the Defence’s argument that the Trial Chamber’s understanding of the concept of extended family is not supported by the evidence on the record of this case or by expert evidence.
ii. The Trial Chamber’s allegedly “overly broad” understanding of the concept of extended family As regards the Defence’s allegations of the Trial Chamber’s “overly broad” understanding of the concept of extended family and failure to define the concept in the 250 case at hand, the Appeals Chamber notes that the Defence raised a similar argument before the Trial Chamber, in relation to “the family members of direct victims” as a category of indirect victims in the present case. The Defence, while accepting that “the definition of family must be culturally adapted to go beyond the western notion of a nuclear family”, averred that the concept of extended family “must be defined for the purpose of this case, rather than encompassing an unlimited number of individuals 251 based on a broad definition”. The Trial Chamber addressed these submissions of the
244 Impugned Decision , paras 129-131. 245 Impugned Decision , para. 131, referring to Ntaganda Reparation Order , para. 124. 246 Appeal Brief , para. 41. Defence’s Submissions of 7 March 2022 Defence’s Submissions of 19 May 2023 247 See , paras 44-47; , paras 17-18. 248 Impugned Decision , paras 128, 132. 249 Impugned Decision , para. 132. 250 Appeal Brief , paras 40, 42, 54, 65. Defence’s Submissions of 7 March 2022 251 Impugned Decision , para. 130, referring to , paras 44-45, 47.
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Defence, as well as the relevant submissions of the parties and the participants, and noted that “due regard ought to be given to the applicable social and familial structures in the affected communities” in that “broadly, in the African continent, including in Uganda, the concept of family goes beyond the strict frame of a couple and their children, to include their father and mother, brothers and sisters, and other relatives”. 252 However, the Trial Chamber emphasised that, in the context of the instant reparation proceedings, the family members of direct victims, “in order to be entitled to receive reparations”, “must always demonstrate to have suffered personal harm” as a result of the convicted person’s crime against the direct victim and “a causal link between their harm and the crimes”. 253 In this regard, the Trial Chamber recalled that “it is not relevant whether the family member is close or distant to the direct victim in the abstract”, provided that they can demonstrate personal harm and the causal link, as 254 noted above.
In this context, the Appeals Chamber notes that the Defence raises again the contention that indirect victims in the present case must prove “a very close relationship” with the direct victims and the harm resulting from the crimes of which 255 Mr Ongwen was convicted. In the Impugned Decision, the Trial Chamber dismissed a similar argument of the Defence that “indirect victims must prove the existence of a ‘strong relationship […]’ […] with the direct victim”. 256 Recalling the relevant jurisprudence of the Appeals Chamber, the Trial Chamber found that “proving the nature of the bond with the direct victim cannot and does not constitute a pre-condition to establish an indirect victim status”, because “demonstrating the existence of a ‘close personal relationship’ is just one way of proving the moral harm suffered, resorting to a presumption”. 257
The Appeals Chamber also notes that the Defence does not substantiate its argument that the Trial Chamber ought to have limited the category of indirect victims to “members of the nuclear family of direct victims who can prove a very close
252 Impugned Decision , paras 129-131. 253 Impugned Decision , paras 128, 132. 254 Impugned Decision , para. 132, referring to , inter alia , Ntaganda Reparation Order , para. 125. 255 Appeal Brief , para. 53. Defence’s Submissions of 19 May 2023 256 Impugned Decision , para. 486, referring to , paras 17-18. 257 Impugned Decision , para. 486 (emphasis in original), referring to Ntaganda A4 A5 Appeal Judgment , paras 608-640; Katanga A3-A5 Appeal Judgment , para. 116.
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relationship with the direct victims”. 258 Notably, the Defence does not refer to any relevant evidence in this regard. It is noted that none of the authorities cited by the 259 Defence support the point which the Defence seems to be making. In any event, the Defence does not appear to have submitted these authorities in the proceedings before the Trial Chamber. Furthermore, the Defence does not explain why, in its view, the Trial Chamber’s requirement of demonstrating personal harm and a causal link is 260 insufficient with regard to family members outside of the nuclear family. The Appeals Chamber notes in this regard that the Defence itself acknowledged before the Trial Chamber that “families in [N]orthern Uganda generally live in the same or very close compounds with cousins, nephews, aunts and uncles”. 261
In light of the above, the Appeals Chamber considers that the Defence has failed to show any errors in relation to the Trial Chamber’s understanding of the concept of extended family in its determination on indirect victims of “the family members of direct victims”. Accordingly, the Appeals Chamber rejects the Defence’s arguments in this regard.
iii. The Trial Chamber’s alleged reliance on the concept of extended family in its determinations on indirect victims of the attacks The Defence argues that the Trial Chamber failed to provide how its understanding of the extended family in the Acholi culture “informed” its projections 262 as to the number of indirect victims. In relation to the Trial Chamber’s determination on presumption of harm with respect to all residents and non-residents who were 263 present at the four IDP camps during the attacks, the Defence avers that the Trial Chamber’s reliance on the concept of extended family “opens the door for reparation claims which are not premised on direct victims’ families defined in the [Impugned Decision]”, thereby going beyond the scope of the harm resulting from the crimes of 264 which Mr Ongwen was convicted. However, the Appeals Chamber notes that the Trial Chamber’s understanding of the extended family in the Acholi culture did not
258 Appeal Brief , para. 53. 259 See Appeal Brief , paras 43-51. 260 Impugned Decision , paras 128, 132. Defence’s Submissions of 19 May 2023 261 , para. 17. 262 Appeal Brief , para. 52. 263 Appeal Brief , paras 52, 54, referring to Impugned Decision , paras 103, 164, 518-522. 264 Appeal Brief , paras 52, 54.
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form “the basis” of its determination on indirect victims in the category of “the family
members of direct victims”. 265
As noted above, the Trial Chamber emphasised the requirement of personal harm
as a result of the commission of the crime against the direct victim and a causal link
266 between their harm and the crimes. Moreover, in respect of presumptions of harm related to indirect victims of the attacks, the Trial Chamber clearly indicated that “close
family members for the purposes of presuming their harm are understood to be all those ”. 267 members of a family living within the same household It is also significant that the
Trial Chamber adopted this presumption only with respect to moral harm, noting that it “[did] not have sufficient information to reach a similar conclusion in relation to the
physical, psychological, and material harm suffered by persons who witnessed the
268 attacks”. In addition, the Appeals Chamber notes that the Defence did not make any
specific objections before the Trial Chamber with respect to presumptions of harm in
269 this regard.
The Appeals Chamber also notes that for the purpose of assessing the Sample, the Trial Chamber “refrained from resorting to presumptions”. 270 As a result, “a
potential beneficiary alleging to be an indirect victim need[ed] to establish that they
ha[d] suffered personal harm under the same conditions as direct victims, i.e. on
271 a balance of probabilities”. Therefore, to the extent that the Defence may be
understood to argue that the Trial Chamber’s consideration of the concept of extended
272 family expanded its estimation of the number of indirect victims of the attacks, the
Appeals Chamber considers that the Defence miscomprehends the Impugned Decision.
Since the Trial Chamber did not presume harm with respect to indirect victims in the
265 See Appeal Brief , para. 40. 266 Impugned Decision , paras 128, 132. 267 Impugned Decision , para. 541 (emphasis added). 268 Impugned Decision , para. 542. 269 See Impugned Decision , paras 518, 521, 539. The Appeals Chamber notes that the Defence opposed the adoption of presumptions of intergenerational harm, SGBC and loss of unborn children ( see Defence’s Submissions of 7 March 2022 , paras 35-41). 270 Impugned Decision , para. 487. 271 Impugned Decision , para. 487. 272 See Appeal Brief , para. 52.
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Sample, there is nothing to suggest that it unduly expanded the scope of the harm 273 resulting from the crimes of which Mr Ongwen was convicted.
Therefore, the Appeals Chamber rejects all of the Defence’s submissions concerning the concept of extended family in relation to the Trial Chamber’s determination and projections on indirect victims of the attacks.
b. Alleged errors relating to the Acholi cultural mechanisms
At the outset, the Appeals Chamber notes that the Defence alleges, once more, the “complementarity role” of the Acholi traditional and cultural mechanisms such as 274 mato oput practices. The Appeals Chamber recalls that the Trial Chamber, in the Sentencing Decision, rejected the Defence’s similar submission proposing an incorporation of elements of Acholi traditional system of justice, including mato 275 oput . The Trial Chamber found that, in light of the principle of legality and the relevant jurisprudence of the Appeals Chamber, it was “precluded from introducing ‘unregulated penalties or sentencing mechanisms not otherwise foreseen in the legal 276 framework of the Court’”. In the same vein, the Appeals Chamber recalls that, in the Sentencing Appeal Judgment, it rejected the Defence’s argument that the Trial Chamber failed to apply the principle of complementarity to the Acholi traditional rituals as follows:
[W]hile respectful of the cultural beliefs advanced by the Defence and mindful of their significance, the Appeals Chamber considers that the question of incorporation of the Acholi traditional judicial system into the Court’s statutory 277 framework has no bearing on complementarity […] matters. In light of the above, to the extent that the Defence argues that the principle of complementarity should apply to the reparation proceedings such that the traditional and cultural mechanisms would be incorporated into the Court’s statutory framework, its argument has already been rejected on appeal.
In the instant reparation proceedings, the Defence contends that the Trial Chamber failed to “explicitly recognise the complementarity role of cultural
273 See Appeal Brief , paras 52, 54. 274 Appeal Brief , paras 58-59. Defence’s Sentencing Brief 275 See Sentencing Decision , paras 15-23, 25-43; , paras 27, 31-39, 182-183. 276 Sentencing Decision , para. 26, referring to Bemba et al. Sentencing Appeal Judgment , para. 77. 277 Sentencing Appeal Judgment , para. 109. No: ICC-02/04-01/15 A3 45/90
mechanisms […] for 278 cen spirit possessions”. In the specific circumstances of the case
and in light of the aforementioned findings of the Trial Chamber and the Appeals
Chamber relating to the Acholi cultural mechanisms, the Appeals Chamber considers
that the Defence does not demonstrate that the Trial Chamber was required to
“explicitly recognise” the role of the Acholi traditional and cultural mechanisms in the
Impugned Decision. In particular, the Defence does not explain how these mechanisms
should be incorporated into the reparation system under the Court’s legal texts and how
such incorporation would affect the scope of Mr Ongwen’s liability for reparations.
The Appeals Chamber also notes that the Trial Chamber, in the Impugned
Decision, duly addressed the proposal of ARLPI to include, inter alia , “[r]econciliation
ceremonies (mato oput)” in the design of collective reparations, 279 noting that the
Defence welcomed ARLPI’s observations on traditional ceremonies. 280 The Trial
Chamber considered that the suggested measures could assuage “tensions” that may
arise between the victims in the present case and “victims of the war in general, who
may be able to incidentally benefit from these community-based symbolic measures
only”. 281 On this basis, the Trial Chamber found it appropriate to include in the design
of the collective reparations in the case at hand “other community-based satisfaction or
symbolic measures” proposed by ARLPI, 282 and instructed the TFV that it may
“consider implementing, based on its consultations with the victims”, measures such
, “reconciliation and cleansing ceremonies”. 283 as, inter alia In this regard, the Trial
Chamber emphasised that “the fact that victims of the war in general may incidentally
benefit from symbolic reparations has no impact on the liability of the convicted
person”. 284 The Appeals Chamber further observes that the Trial Chamber, in awarding
“other community-based symbolic and satisfaction measures”, considered the projected
285 costs of the symbolic measures provided by ARLPI. Therefore, it is clear from the
278 Appeal Brief , para. 59. ARLPI’s Observations of 30 November 2021 279 , pp. 11, 13; Impugned Decision , paras 607, 635. Defence’s Submissions of 7 March 2022 280 Impugned Decision , paras 766, 791, referring to , para. 26. 281 Impugned Decision , para. 635. 282 Impugned Decision , para. 635. ARLPI’s Observations of 30 November 2021 283 Impugned Decision , para. 635, referring to , inter alia , , pp. 9-12. 284 Impugned Decision , para. 635. ARLPI’s Observations of 30 November 2021 285 Impugned Decision , paras 766, 791, referring to , pp. 13-14.
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Impugned Decision that the Trial Chamber gave due consideration to the measures of the Acholi traditional and cultural mechanisms in its award of collective reparations.
Turning to the Defence’s submission concerning the harm caused by the inability of the victims of the attacks to perform traditional and cultural rituals as a result of the 286 crimes of pillaging and destruction of property, the Appeals Chamber understands the Defence’s argument to be that the Trial Chamber should have taken into account the role of the Acholi cultural mechanism of cen healing, mato oput , in its assessment of the harm. The Appeals Chamber notes in this respect that the Trial Chamber, 287 recalling its relevant finding in the Conviction Decision, found that “the pillaging and destruction of goods and livestock significantly impaired the victims’ ability to carry out traditional rituals and customs”. 288 It referred to evidence of goods and livestock being used, inter alia , to “heal health conditions” and to bury deceased 289 persons. The Trial Chamber considered “evidence about how the failure to bury family members in accordance with rituals may result in […] ‘ ’”. 290 cen The Defence does not identify any error in these findings of the Trial Chamber. It also does not explain the significance of the Acholi cultural mechanism of mato oput in the present context. Accordingly, the Appeals Chamber dismisses the Defence’s arguments as unsubstantiated.
c. Alleged mischaracterisation of “spiritual disturbances (cen)” as “mental illness”
As a preliminary matter, the Appeals Chamber observes that the Defence, in the Notice of Appeal and the heading of the twelfth ground of appeal in the Appeal Brief, indicates the alleged error as the Trial Chamber’s characterisation of cen as mental illnesses “without a clinical basis of its diagnosis”. 291 However, in the Appeal Brief, the Defence does not develop any arguments pertaining to the purported failure of the Trial
286 Appeal Brief , para. 58. 287 Impugned Decision , para. 394, referring to Conviction Decision , paras 150, 165, 185, 195. 288 Impugned Decision , paras 394, 398. 289 Impugned Decision , paras 394-397. 290 Impugned Decision , para. 397. , p. 13, heading F (“Ground 12: Trial Chamber IX erred 291 See Notice of Appeal , para. 24; Appeal Brief in law and fact when it decided the victims suffered spiritual attacks, cultural problems and cen , while characterising the conditions as mental illnesses without a clinical basis of its diagnosis ” (emphasis added)).
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Chamber to provide “a clinical basis”. 292 In the absence of any substantiation, the Appeals Chamber will limit its review to the alleged factual error of the Trial Chamber’s mischaracterisation of cen .
The Appeals Chamber notes that the Defence misunderstands the Impugned Decision in arguing that the Trial Chamber “misrepresented” 293 cen . Contrary to the Defence’s claim, 294 the Trial Chamber did not “equate” cen to “mental illness in Western medicine”. Rather, the Trial Chamber found that, on a balance of probabilities,
direct and indirect victims of the attacks and direct victims of the crimes against child soldiers suffered “moral harm” which includes “spiritual disturbances ( cen )” that had
295 long-lasting consequences. In reaching this conclusion, the Trial Chamber considered the relevant findings in the Conviction Decision and the Sentencing Decision, the evidence heard during the trial proceedings and the information obtained 296 from its assessment of the Sample. In particular, the Trial Chamber took note of the following evidence:
[S]ome of the witnesses and victims referred to ‘spiritual disturbances’ or claimed to have experienced […] ‘ cen ’. In relation to this, the Chamber considered the evidence that ‘ cen ’ represents the vengeful spirits of those who have died a violent death, and are commonly used to interpret what western medicine would call ‘mental illnesses’. Dr Atim’s report noted that 67% of her survey participants stated that they had been ‘harmed by spirits of the dead in relation to the LRA attacks’ and a number of the victim participants in her survey gave detailed explanations of the long term impacts they believe the spirits continue to have on them.
[…]
[…] [T]he Expert [Witness Professor Wessels] recognised that a ‘significant number’ of those children who had been abducted and integrated into the LRA, suffered from a range of issues including anxiety and depression, aggressive behaviours, PTSD, everyday distress, as well as spiritual disturbances ( cen ). […] The Expert indicated that ‘ cen ’ was a significant source of suffering and social
, paras 55 (“The Chamber determined […] that victims suffered from a phenomenon 292 See Appeal Brief known as cen , which the Chamber interpreted to equate to ‘mental illness’ in ‘Western medicine’”), 57 (“The Chamber misrepresented the cen psychotic disorder, which is steeped in the spiritualism of the Acholi culture by equating it to mental illness in Western medicine”). 293 Appeal Brief , paras 55, 57. 294 See Appeal Brief , paras 55, 57. 295 Impugned Decision , paras 242, 269, 369, 414(a)(ii), 414(b)(i), 414(f)(ii). 296 Impugned Decision , paras 242, 269, 369, 414(a)(ii), 414(b)(i), 414(f)(ii).
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isolation, and that families often feared that returning children might bring ‘ cen ’ 297 into the household, and that it would harm family members. The aforementioned findings clearly indicate that the Trial Chamber did not consider cen to equate to “mental illness in the Western medicine” as the Defence claims. Accordingly, the Appeals Chamber rejects the Defence’s argument concerning cen .
d. Overall conclusion
Having dismissed or rejected all of the Defence’s arguments, the Appeals Chamber rejects the fourth, eleventh and twelfth grounds of appeal.
E. Fifth ground of appeal: Alleged error in the Trial Chamber’s decision to award a symbolic cash payment of EUR 750 to each victim
Under this ground of appeal, the Defence submits that the Trial Chamber erred in law and procedure by awarding a symbolic cash payment of EUR 750 to each victim, specifically not intending this award to constitute a partial restitution or compensation 298 for the harm suffered. The Defence argues that the Trial Chamber acted ultra vires , 299 as such an award is not provided in the Statute or the Rules.
1 Relevant part of the Impugned Decision The Trial Chamber determined that it would be “appropriate for each eligible ”. 300 direct and indirect victim in the case to receive a symbolic award of [EUR 750 ] In reaching this determination the Trial Chamber took into consideration: (i) that most 301 victims had expressed a preference to receive a monetary award; (ii) the “nearly impossible” task of determining the value of the harms suffered by the large number of
297 Impugned Decision , paras 240, 368 (footnotes omitted). 298 Appeal Brief , paras 67-68, 74. 299 Appeal Brief , paras 67, 70-73, 75. 300 Impugned Decision , para. 621 (emphasis in original omitted). , para. 622. The Trial Chamber referred in particular to the victims’ expectations 301 Impugned Decision to receive monetary awards for: (i) the loss of life and persons who were missing or unaccounted for, consistent with the Acholi/Lango cultures; (ii) victims of SGBC; (iii) former child soldiers; and (iv) victims of the attacks. The Trial Chamber also referred to similar submissions made by Victims Group 2 and the Registry.
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302 303 victims; (iii) the time for rehabilitation programmes to commence; and (iv) that
“victims are best placed to address their own immediate needs”. 304
The Trial Chamber emphasised that “the symbolic monetary payment awarded to
the victims in the present case is not intended as restitution, nor as a compensation for
305 the harm, as it was, at least in part, in the Katanga case”. The Trial Chamber also
considered that the symbolic payment awarded in this case is not a form of individual
306 reparations, but part of collective community-based reparations.
In determining the amount of the symbolic payment, the Trial Chamber took the
symbolic payment of USD 250 awarded in the Katanga Reparation Order as a point of
307 reference. It made a number of adjustments in light of the circumstances of the
308 present case. In light of the convicted person’s indigency, the Trial Chamber also
acknowledged that the payment of the symbolic award will be subject to a decision of
the TFV’s Board of Directors and the TFV’s ability to complement the reparation
309 award.
2 Summary of the submissions
The Defence submits that the Trial Chamber acted ultra vires when granting the
symbolic award of EUR 750 to each victim, as such an award “does not fall under
any of the categories” of reparations outlined in article 75(1) of the Statute or
310 rule 94(1)(d)-(f) of the Rules. It contends that granting this award “seriously inflated
the amount of reparations ordered in the Impugned Decision”. 311 The Defence argues
that, as the Trial Chamber itself admitted, this award was not intended to be restitution
302 Impugned Decision , para. 623. 303 Impugned Decision , para. 624. 304 Impugned Decision , para. 625. 305 Impugned Decision , para. 626. , para. 631. In taking this approach, the Trial Chamber rejected the TFV’s 306 Impugned Decision submission that symbolic payments could be granted only to specific groups of victims, such as victims of SGBC ( Impugned Decision , para. 632, referring to TFV’s Observations of 6 December 2021 , paras 99, 111). 307 Impugned Decision , para. 626, referring to Katanga Reparation Order , para. 300. 308 Impugned Decision , paras 626-630. 309 Impugned Decision , para. 633. 310 Appeal Brief , paras 67-68, 70-73, 75. 311 Appeal Brief , para. 67.
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312 or compensation, contrary to the purposes of article 75 of the Statute. It requests the
313 Appeals Chamber to reverse the symbolic reparation award of EUR 750 per victim.
Victims Group 1 argue that there is nothing in the Trial Chamber’s exercise of its
discretion or in its assessment “that points to an error of law and procedure”. 314 They
further submit that the order of a symbolic award is “properly rooted in the principles
of reparations”. 315
Victims Group 2 argue that the Trial Chamber committed no error and that “the
Impugned Decision aligns with the former jurisprudence that recognizes the symbolic
316 award as a form of reparation”.
The TFV observes that, in light of the specific circumstances of the present case,
the Trial Chamber’s approach in awarding the symbolic payment of EUR 750 is
317 appropriate and in line with the prior jurisprudence of the Court. The TFV refers to
the Appeals Chamber’s ruling that “collective reparations can include the payment of
sums of money”, emphasising that “[t]he Appeals Chamber did not indicate that any
318 such payment must be considered as a compensation”.
3 Determination by the Appeals Chamber
a. Whether article 75(1) of the Statute and rule 94(1)(f) of the Rules limit reparations to restitution, compensation and rehabilitation
The main submission of the Defence is that by making a symbolic award of
EUR 750, the Trial Chamber acted ultra vires , as article 75(1) of the Statute does not
319 allow types of reparations other than restitution, compensation and rehabilitation. It
further argues that “other forms of remedy” referred to in rule 94(1)(f) of the Rules are
320 limited to forms of rehabilitation and do not include a symbolic cash award.
Defence’s Response to TFV’s Observations 312 Appeal Brief , para. 74; , paras 13-16. 313 Appeal Brief , para. 75. Victims Group 1’s Response 314 , para. 54. Victims Group 1’s Response 315 , para. 55. Victims Group 2’s Response 316 , para. 61. TFV’s Observations 317 , paras 18-20. TFV’s Observations 318 , para. 20, referring to Lubanga A7 A8 Judgment , para. 40. 319 Appeal Brief , paras 67-68, 73, 75. , para. 233 (“Rehabilitation shall 320 Appeal Brief , para. 69, referring to Lubanga Reparation Decision include the provision of medical services and healthcare (particularly in order to treat HIV and Aids);
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The Appeals Chamber recalls that article 75(1) of the Statute provides that “[t]he
Court shall establish principles relating to reparations to, or in respect of victims, 321 including restitution, compensation and rehabilitation”. The Appeals Chamber 322 agrees with Victims Group 2 that this phrase should not be understood as exhaustive.
As regards rule 94(1) of the Rules, the Appeals Chamber notes that this provision foresees that victims requesting reparations shall include in their requests for 323 324 reparations: a description of items for restitution, “[c]laims for compensation”, and “[c]laims for rehabilitation ”. 325 and other forms of remedy As noted by Victims Group 2, rule 94(1) of the Rules “merely specifies what the victim must provide when requesting reparations”. 326 It does not in any way limit a trial chamber’s choice of modalities or types of reparations which it may award. Furthermore, rule 94(1) of the Rules enables the Court to consider victims’ requests not only for restitution, compensation and rehabilitation, but also for “other forms of remedy” not explicitly provided for in article 75(1) of the Statute.
The aforesaid interpretation of article 75(1) of the Statute and rule 94(1) of the Rules is in line with the Appeals Chamber’s jurisprudence. In this regard, the Appeals
Chamber recalls that in the Lubanga A-A3 Judgment, it found no error in respect of the following determination on the modalities of reparations by Trial Chamber I:
[T]he Trial Chamber decided that the appropriate modalities of reparation awards in the circumstances of the Lubanga case are: restitution, compensation, rehabilitation, as well as others with a symbolic, transformative and preventative value . With respect to modalities of reparations apart from restitution, compensation and rehabilitation , the Appeals Chamber finds that the Trial Chamber defined these other modalities of reparations […] as “measures to address the shame felt by some former child soldiers” and held that reparations programmes should “be directed at preventing future conflicts and raising awareness that the effective reintegration of these children requires eradicating the victimisation, discrimination and stigmatisation of young people in these circumstances”. 327
psychological, psychiatric and social assistance to support those suffering from grief and trauma; and any relevant legal and social services” (footnotes omitted)). 321 Article 75(1) of the Statute (emphasis added). Victims Group 2’s Response 322 , para. 58. 323 Rule 94(1)(d) of the Rules. 324 Rule 94(1)(e) of the Rules. 325 Rule 94(1)(f) of the Rules. Victims Group 2’s Response 326 , para. 58. 327 Lubanga A-A3 Judgment , para. 202 (footnote omitted and emphasis added).
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Moreover, in the Lubanga Amended Reparation Order, the Appeals Chamber held that “[r]eparations are not limited to restitution, compensation and rehabilitation, as listed in article 75 of the Statute”, and that other types of reparations include those “with a symbolic, preventative or transformative value”. 328
Considering the above, it is clear that a trial chamber may order modalities of reparations beyond restitution, compensation and rehabilitation, including those with a symbolic value. Furthermore, in the case at hand, and although the Trial Chamber labelled the cash payments as symbolic measures, it determined that they “are intended to help contribute to the process of rehabilitation”. 329 Therefore, the Defence has failed to demonstrate that the symbolic award is contrary to the statutory framework or that the Trial Chamber acted ultra vires .
Accordingly, the Appeals Chamber finds that the Trial Chamber did not err in ordering a symbolic award and the Defence’s argument is thus rejected.
b. Whether the Trial Chamber erred when it determined that the EUR 750 symbolic award is not intended as restitution or compensation
In the Impugned Decision the Trial Chamber decided that “the symbolic monetary payment awarded to the victims in the present case is not intended as restitution, nor as a compensation for the harm”. 330 The Defence takes issue with this 331 statement.
The Defence submits in this regard that the present case is different from the Katanga case, since in that case the parties agreed to a symbolic award of EUR 1 per 332 victim, but Trial Chamber II increased the amount to USD 250. It argues that the appeal against the Katanga Reparation Order concerned Trial Chamber II’s decision to 333 increase the amount of the symbolic award, rather than the legality of such an award. Thus, the Defence appears to suggest that the Trial Chamber erred in “specifically reject[ing] this notion” of a symbolic award intended, as in the Katanga case, as “partial
328 Lubanga Amended Reparation Order , paras 34, 67. 329 Impugned Decision , para. 620. 330 Impugned Decision , para. 626. Defence’s Response to TFV’s Observations 331 Appeal Brief , para. 74; , paras 13-16. 332 Appeal Brief , para. 74, referring to Katanga Reparation Order , para. 300. 333 Appeal Brief , para. 74.
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compensation for the losses of the victims”. 334 The issue raised by the Defence thus
appears to be whether it is appropriate for a trial chamber to award a monetary payment
intended solely as a symbolic reparation.
The Appeals Chamber recalls that in the Lubanga Amended Reparation Order, it
did not define what symbolic reparations are, but simply referred to modalities of
reparations that have a “symbolic […] value”. 335 It further provided two examples of
symbolic reparations, when it determined that “symbolic reparations, such as
, may also contribute to the process of rehabilitation”. 336 commemorations and tributes
In doing so, the Appeals Chamber did not limit symbolic reparations solely to
“commemorations and tributes”. Rather, it gave examples of possible modalities of
reparations with a symbolic value, consistent with the examples previously foreseen by
337 Trial Chamber I.
Moreover, the Appeals Chamber previously determined that “collective
reparations can include the payment of sums of money to individuals to repair harm
suffered”. 338 339 However, as noted by the TFV, this does not mean that any such
payment must be considered as a compensation. Rather, “many permutations [are]
possible, which will also be dependent on the facts of particular cases”. 340
The determination of whether a given modality of reparations is appropriate must
be decided on a case-by-case basis. The Appeals Chamber recalls that in the
Lubanga A-A3 Judgment, it determined that a trial chamber “must identify the most
appropriate modalities of reparations, based on the specific circumstances of the case
”. 341 at hand Moreover, the determination of what is an appropriate modality of
342 reparations must be grounded in the determination of the harms caused. In this
334 Appeal Brief , para. 74, referring to Impugned Decision , para. 626; Katanga Reparation Order , para. 300. 335 Lubanga Amended Reparation Order , para. 67. 336 Lubanga Amended Reparation Order , para. 67(v) (emphasis added). 337 Lubanga Reparation Decision , para. 236. 338 Lubanga A7 A8 Judgment , para. 40. TFV’s Observations 339 , para. 20, referring to Lubanga A7 A8 Judgment , para. 40. 340 Lubanga A7 A8 Judgment , para. 40. See also Lubanga Separate Opinion of Judge Ibáñez Carranza , p. 4 (“[e]conomic compensation is not the most important aspect of reparations. The ultimate goal of reparations consists of restoring human dignity and restructuring the human being both in his or her individual and social dimensions”). 341 Lubanga A-A3 Judgment , para. 200 (emphasis added). 342 Lubanga A-A3 Judgment , para. 200.
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regard, in the Katanga A3-A5 Judgment, the Appeals Chamber determined that “trial
chambers should seek to define the harms and to determine the appropriate modalities
343 [of reparations] for repairing the harm caused”.
344 The Appeals Chamber further notes that both Victims Group 2 and the
345 Defence correctly submit that, although relevant, the aforementioned findings in the
Katanga Reparation Order may not be directly applied to the circumstances of this case.
In assessing the correctness of the Impugned Decision in this regard, while bearing in mind the Trial Chamber’s references to the 346 Katanga Reparation Order, the Appeals
Chamber will proceed on the basis that the Trial Chamber ought to be guided
principally by the specific circumstances of this case.
The Appeals Chamber recalls that the principles under article 75(1) of the Statute
347 are the basis for any reparation order. Accordingly, when assessing the correctness
of the symbolic cash award in this case, the Appeals Chamber will have regard to the
reparations principles adopted by the Trial Chamber.
The Appeals Chamber notes in this regard that in the Impugned Decision the Trial
348 Chamber adopted the principles set out in the Ntaganda Reparation Order, with some
349 amendment to, among others, the principle on types and modalities of reparations.
The Trial Chamber specifically held that “payments that are not proportional and
”. 350 appropriate to address the harm can only be regarded as symbolic It thus adopted
the following principle on types and modalities of reparations:
[T]he principle is amended as required to include the following: First, the Chamber notes that rehabilitation measures may not only be aimed at addressing the medical and psychological conditions of the victims. They can also be aimed at improving the socio-economic conditions of victims, seeking to enable the maximum possible self-sufficiency and to restore, as much as possible, victims’
343 Katanga A3-A5 Judgment , para. 72. Victims Group 2’s Response 344 , para. 60. 345 Appeal Brief , para. 74. 346 Impugned Decision , paras 626-630. 347 Article 75(1) of the Statute reads in its relevant part: “The Court shall establish principles relating to reparations […]. On this basis , in its decision the Court may […] determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting” (emphasis added). See also Lubanga A-A3 Judgment , para. 53. 348 Impugned Decision , paras 57, 59, referring to Ntaganda Reparation Order , paras 30-103. See also Impugned Decision , paras 77, 87, 167, 570, 612, 655. 349 Impugned Decision , paras 71(v), 78. 350 Impugned Decision , para. 71(v) (emphasis added).
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independence and vocational ability, facilitating their inclusion and participation in society. Measures of socio-economic rehabilitation may include a wide array of inter-disciplinary activities, including, inter alia , housing, social services, vocational training and education, micro-credits, income generating opportunities, or sustainable work that promote a meaningful role in society. Second, considering that compensation is aimed at addressing in a proportionate and appropriate manner the harm inflicted, payments that are not proportional and appropriate to address the harm can only be regarded as symbolic . Third, measures of satisfaction and guarantees of non-repetition can also be included as appropriate modalities of reparations, particularly in the context of collective 351 reparations.
The Appeals Chamber notes that the Defence does not appear to challenge the aforesaid principle. Moreover, this principle, and the Trial Chamber’s approach further
analysed below, is in line with the Appeals Chamber’s jurisprudence that compensation
should be considered “when i) the economic harm is sufficiently quantifiable; ii) an award of this kind would be appropriate and proportionate (bearing in mind the gravity of the crime and the circumstances of the case); and iii) in view of the availability of 352 funds, this result is feasible”.
The relevant findings in the Impugned Decision must be seen in the context of
this particular case. In this regard, the Appeals Chamber notes that in reaching its decision to award a symbolic payment, the Trial Chamber was guided by the aforementioned principle, but also appears to have taken into consideration and balanced the different interests and views of those concerned, namely: (i) the TFV’s suggestion to grant a symbolic payment to certain types of victims (for instance, victims 353 of SGBC and their children); (ii) the submissions of Victims Group 1 requesting a 354 symbolic award of USD 1,429; (iii) the submissions of Victims Group 2 requesting individual reparations and arguing that the symbolic payment suggested by the TFV 355 would be modest and its impact limited, leading to tensions in the community; and (iv) the Defence’s submissions that conflict might arise if different monetary awards
351 Impugned Decision , para. 78 (emphasis added and footnotes omitted). 352 Lubanga Amended Reparation Order , para. 37 (emphasis added). TFV’s Observations of 6 December 2021 353 Impugned Decision , para. 593, referring to , para. 111. Victims Group 1’s Submissions of 7 February 2022 354 Impugned Decision , para. 590, referring to , para. 33. Victims Group 2’s Submissions of 7 March 2022 355 Impugned Decision , para. 593, referring to , para. 47; Victims Group 2’s Submissions of 6 December 2021 , para. 80.
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are granted to victims, and that an extensive amount of time would be required to
356 determine exact amounts per victim.
The Trial Chamber also noted that a large number of victims were “likely to have
357 suffered extensive multi-layered harms”, and that this would make “the task of
determining the value of each of the harms suffered [...] a nearly impossible
undertaking”. 358 In order to mitigate the Defence’s concerns in this regard, the Trial
Chamber “decided to set the same ex aequo et bono symbolic award for all direct and
indirect victims”. 359
The Trial Chamber took into account that individual reparations suggested by the
victims may not be feasible, “may take decades to implement or may never be
360 361 implemented” “for approximately 49,772 victims” in this case. It also noted that
“it would be impossible, given the high number of victims and the amount of time since
the crimes occurred to assess individual economic loss”. 362 However, in granting a
symbolic award where the individual circumstances of victims have no bearing on their
363 eligibility to receive such an award or on its amount, the Trial Chamber still awarded
a modality of reparations that, albeit collective, may already help individual victims
364 address some of their immediate needs arising out of the harm they suffered. The
365 Appeals Chamber agrees with the TFV that the Trial Chamber’s determination that
the symbolic measures in this case are directed at addressing all harms was appropriate
in the specific circumstances of this case.
In this regard, the Appeals Chamber notes that the Trial Chamber recognised that
the payment, even if symbolic: (i) may “serve as a ‘stopgap’ for victims”, 366 before they
can start benefiting from other reparations measures, given that it may take years for
356 Impugned Decision , para. 623, referring to Defence Submissions of 7 March 2022 , para. 63. 357 Impugned Decision , para. 623. 358 Impugned Decision , para. 623. 359 Impugned Decision , para. 623. 360 Impugned Decision , para. 579. 361 Impugned Decision , para. 579. 362 Impugned Decision , para. 614; see also para. 775 (“endeavouring to value each harm in order to provide restitution or compensation to each individual victim is simply an impossible undertaking”). 363 Impugned Decision , para. 631. 364 Impugned Decision , para. 625. TFV’s Observations 365 , para. 19, referring to Impugned Decision , para. 620. 366 Impugned Decision , para. 624.
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367 the relevant programmes to commence; (ii) will allow victims to “address their own immediate needs” so they can be “in a better position to contribute to and engage in the 368 consultations required” for the collective community-based reparations; and (iii) will allow victims to “make their own decisions regarding how to best address their own circumstances”. 369 The Appeals Chamber notes that the Defence does not specifically challenge any of the above considerations.
Accordingly, the Defence’s argument is rejected, as it has failed to demonstrate that the Trial Chamber erred when it made a symbolic monetary award on the basis of 370 the aforesaid principle on modalities of reparations, and bearing in mind the circumstances of this case.
c. Overall conclusion
Having rejected all arguments of the Defence, the Appeals Chamber rejects the fifth ground of appeal.
F. Sixth ground of appeal: Alleged error in prioritising participating direct victims over non-participating direct victims
Under this ground of appeal, the Defence submits that the Trial Chamber erred 371 by prioritising participating direct victims over non-participating direct victims.
1 Relevant part of the Impugned Decision In the Impugned Decision, the Trial Chamber set out criteria for prioritisation among victims in the reparation process. The Trial Chamber gave first priority to “the vulnerable victims who are in dire need of urgent assistance”, second priority to the vulnerable direct victims who have participated in the Court’s proceedings, and third priority to “all remaining vulnerable victims”. 372 The remaining “non-vulnerable
367 Impugned Decision , para. 624. 368 Impugned Decision , para. 625. The Trial Chamber also noted that, different from the Ntaganda case, where Trial Chamber II had rejected a similar proposal by the TFV, “the symbolic payment is intended to allow victims to engage in the required consultations to design and develop a programme that does not exist” ( Impugned Decision , fn 2181, referring to Ntaganda First Decision on Implementation , paras 40-46). 369 Impugned Decision , para. 630. 370 See paragraph 155 above. 371 Appeal Brief , paras 76-87. 372 Impugned Decision , paras 659-661; see also para. 665.
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victims” are to receive reparations after all the aforementioned categories of victims
373 received reparations.
2 Summary of the submissions
The Defence submits that the Trial Chamber’s “decision to prioritise one direct
victim (not in dire need) over another goes against the spirit of reparations and shall
extend the time needed to disseminate reparations”. 374 It further avers that this
prioritisation is “against the fundamental fairness of the victims, especially those who
desired to participate in the proceedings, but were unable to file their victim
375 participation forms before the deadline set by [the] Trial Chamber”. In the Defence’s
view, “the only diversion from the principle of treating each direct victim equal should
be [with respect to] those who are in dire need”. 376
Victims Group 1 submit the Defence fails to substantiate this ground of appeal,
focusing “on victims’ applications which are unrelated to the basis of prioritisation”. 377
They further argue that in any event, the Defence lacks standing to make the present
challenge, as it “fails to show how Dominic Ongwen’s rights are affected by the [Trial]
Chamber’s decision to prioritise certain categories of victims”. 378
Victims Group 2 submit that the Defence’s argument under this ground “lacks
merit”, as “[s]uch prioritisation does not affect the total number of beneficiaries or the
total amount of reparations”, and “the Impugned Decision would not have substantially
differed from the one rendered”, even without the prioritisation in question. 379 They
contend that the Trial Chamber’s decision to “prioritise direct participating victims […]
align[s] with the spirit of reparations”, as this approach “helps meet urgent needs and
speeds up the overall implementation process of reparations”. 380
373 Impugned Decision , para. 662. 374 Appeal Brief , para. 76. 375 Appeal Brief , paras 76, 79-87. 376 Appeal Brief , para. 86. Victims Group 1’s Response 377 , para. 60. Victims Group 1’s Response 378 , para. 61. Victims Group 2’s Response 379 , para. 62. Victims Group 2’s Response 380 , para. 64.
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The TFV submits that it “cannot discern from the submission what kind of error has been alleged […], as it is labelled a procedural error, while the Appeal Brief recounts facts and alleges unfairness in general terms”. 381
In its response to the TFV’s Observations, the Defence argues that the TFV has not given any substantive arguments as to “why Ground 6 of the Defence’s Appeals Brief is not an appropriate measure”. 382
3 Determination by the Appeals Chamber Under this ground of appeal, the Defence submits that the Trial Chamber erred in 383 prioritising participating direct victims over non-participating direct victims. The 384 Appeals Chamber notes at the outset that, as observed by the TFV, it is unclear from the Appeal Brief what error is alleged. The Defence alleges an interference with “the fundamental fairness of the victims” 385 without describing any prejudice to Mr Ongwen. Moreover, the Appeals Chamber recently held that an urgency screening to determine victims’ urgent needs did not affect the rights of the defence, as it concerned “which victims should receive reparations first during the course of the implementation process”, rather than “whether they were ”. 386 eligible for reparations The Appeals Chamber held in that case that the victims’ “eligibility for reparations […] was […] of relevance for the [d]efence [but] not the question of whether they should 387 receive any reparations […] as a matter of priority”. It is therefore unclear why the Defence is raising a matter related to the prioritisation and what relief it seeks.
Furthermore, the Appeals Chamber notes that the Defence misrepresents the Impugned Decision by focusing its arguments on the victims’ participation status 388 alone, without having due regard to the fact that this is merely a part of the prioritisation scheme that the Trial Chamber developed, which in fact sets out the priority primarily according to the victims’ vulnerability and needs. Indeed, the Trial Chamber gave first priority to “vulnerable victims who are in dire need of urgent
TFV’s Observations 381 , para. 24. Defence’s Response to TFV’s Observations 382 , paras 18-21. 383 Appeal Brief , paras 76-87. TFV’s Observations 384 , para. 24. 385 Appeal Brief , paras 76, 79-87. 386 Ntaganda A6 A7 Judgment , para. 274 (emphasis in original); see also para. 136. 387 Ntaganda A6 A7 Judgment , para. 274. 388 Appeal Brief , para. 76.
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assistance”, second priority to “vulnerable direct participating victims”, and third priority to “all remaining vulnerable victims”, before distributing reparations to “non-vulnerable victims”. 389 Contrary to the Defence’s submission, the Trial Chamber, in the Impugned Decision, merely took the victims’ participation in the proceedings into account as a secondary consideration to further distinguish between victims who were already determined to be vulnerable but not in dire need of urgent assistance.
Based on the above reading of the Impugned Decision, the Appeals Chamber understands the Defence’s arguments to pertain to the differentiation between the second and third priority groups. In this regard, the Appeals Chamber notes the Trial Chamber’s finding that “victims who have participated in the Court’s proceedings have done so for nearly a decade, making important contributions to the search for truth and justice through their active participation before the Court”. 390 The Appeals Chamber takes further note of Victims Group 2’s pertinent submissions that “[i]dentifying and assessing all potential beneficiaries is a time-consuming process” and that “[p]articipating victims are those for whom the said process has already been initiated 391 and partially completed”. In light of these considerations, the Appeals Chamber rejects as unsubstantiated the Defence’s argument that the prioritisation adopted by the Trial Chamber “shall extend the time needed to disseminate reparations”. 392
For the foregoing reasons, the Appeals Chamber finds that, irrespective of whether the Defence can actually claim that any interests of Mr Ongwen are affected by the prioritisation of victims in the present case, it is clear that the Trial Chamber 393 prioritised victims primarily based on their vulnerability and needs, whereas their prior participation in the proceedings only had a secondary significance and was, in any event, a factor related to the expeditiousness of the implementation process. The Appeals Chamber therefore finds that the Defence has not demonstrated an error in the Trial Chamber’s approach to the prioritisation of participating direct victims over non-participating direct victims. Accordingly, the Appeals Chamber rejects the sixth ground of appeal.
389 Impugned Decision , paras 658-662. 390 Impugned Decision , para. 660 (footnote omitted). Victims Group 2’s Response 391 , para. 64. 392 Appeal Brief , para. 76. 393 Impugned Decision , paras 655-662. No: ICC-02/04-01/15 A3 61/90
G. Seventh ground of appeal: Alleged error in failing to require medical documentation
Under this ground of appeal, the Defence submits that the Trial Chamber erred by failing to require two persons in the Sample (hereinafter: “Two Victims”) to provide 394 medical documentation to prove their disabilities.
1 Relevant part of the Impugned Decision In the Impugned Decision, the Trial Chamber considered the issue of availability 395 of supporting documentation. It examined submissions of the victims’ representatives to conclude that “in light of the time elapsed since the commission of the crimes, the displacement of the victims, and the lack of official records, it is extremely difficult for the victims to obtain additional documentary evidence in support 396 of their claims”.
In the section of the Impugned Decision concerning the requirement of causal link between the harm and the crimes, the Trial Chamber addressed the Defence’s 397 submission regarding the Two Victims’ failure to provide medical reports. Having regard to the aforementioned difficulties, which the victims had in obtaining additional 398 documentary evidence in support of their claims, the Trial Chamber “dismisse[d] the Defence’s reasoning” and held that “the causal link between the harms [victims] allegedly suffered and the crimes for which Mr Ongwen was convicted can be established through a credible, coherent, and consistent account”. 399
In Annex I to the Impugned Decision, the Trial Chamber set out its assessment of eligibility to benefit from reparations with respect to, among others, the Two 400 Victims. The Trial Chamber rejected the Defence’s objections to the lack of medical 401 documentation to support the two applications.
394 Appeal Brief , paras 88-99. 395 Impugned Decision , paras 436-443. 396 Impugned Decision , para. 442. 397 Impugned Decision , paras 505-506. 398 Impugned Decision , para. 506, referring to para. 442. 399 Impugned Decision , para. 506. 400 Confidential ex parte Annex I to Impugned Decision, paras 1006-1021, 1035-1049. 401 Confidential ex parte Annex I to Impugned Decision, paras 1014-1015, 1043-1044.
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2 Summary of the submissions
The Defence submits that the Trial Chamber “failed to understand” the Defence’s
402 requests for medical documentation from the Two Victims, whose claims were
“questionable” and thus required “a heightened level of review”. 403 Referring to the
Appeals Chamber’s jurisprudence, 404 the Defence argues that there was no need for the
Trial Chamber to resort to presumptions in these instances, as the Two Victims must
have seen a medical professional and medical documentation should have been
405 produced. The Defence requests the Appeals Chamber to remand the matter and “to
change the presumption that where documentation is readily or easily available to show
406 harm caused by the crime, the victim applicant must produce said documentation”.
Victims Group 1 submit that the Trial Chamber did not need to grant the
Defence’s request for documentation, as its duty was to set out general criteria. 407
Victims Group 1 contend that the Defence does not demonstrate how the Trial Chamber
408 erred in this regard.
Victims Group 2 submit that the Defence’s arguments under this ground “merely
reflect a disagreement with the Impugned Decision”. 409 They argue that the Defence
“lacks the expertise” to express opinions on the victims’ allegations of a medical
410 nature. Victims Group 2 aver that the alleged error “cannot meaningfully impact” the
411 overall estimated number of beneficiaries.
3 Determination by the Appeals Chamber
The Defence’s main argument under this ground is that the Two Victims “should
without a doubt have medical documentation” for their injuries, as they “would have
undoubtedly seen a medical professional”. 412 The Appeals Chamber notes in this regard
that the Defence did not raise the issue of lack of medical documentation when making
402 Appeal Brief , para. 88. 403 Appeal Brief , paras 89, 92-95, 97. 404 Appeal Brief , paras 90-91, referring to Lubanga Amended Reparation Order , paras 22, 65; Katanga A3-A5 Judgment , para. 75. 405 Appeal Brief , paras 92-96, 98. 406 Appeal Brief , para. 99. Victims Group 1’s Response 407 , para. 65. Victims Group 1’s Response 408 , para. 66. Victims Group 2’s Response 409 , paras 33-34. Victims Group 2’s Response 410 , para. 33. Victims Group 2’s Response 411 , para. 34. 412 Appeal Brief , paras 92-94; see also para. 96.
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its general observations on the Sample before the Trial Chamber. Victims Group 1 and
Victims Group 2, in their joint submissions on the Sample, had averred that most of the
relevant documentation had been destroyed and that, given the distance between the
IDP camps and the main cities and towns, it was impossible for victims to obtain any
413 documentation. However, as noted by the Trial Chamber, the Defence did not
contest the victims’ representatives submissions regarding the lack of supporting
414 documentation.
It appears that in the proceedings before the Trial Chamber, as in the current
appeal proceedings, the Defence raised the lack of medical documentation only with
415 respect to the Two Victims, whereas as many as 49 persons alleged to have suffered
416 harm as a result of physical injuries.
The Trial Chamber found that each of the Two Victims suffered physical harm
417 after having fallen during the attack. The Appeals Chamber notes that the Two
Victims, in their applications, make no mention of either of them having received
418 assistance from a medical professional. The Defence does not explain why it believes
that the Two Victims received such assistance. Nor does the Defence substantiate its
assertion that the Two Victims have medical documentation concerning their injuries,
despite difficulties which many victims had in obtaining and keeping such
419 documentation, as acknowledged by the Trial Chamber. In finding the Two Victims
eligible to benefit from reparations, the Trial Chamber duly considered such difficulties,
as well as the coherence and credibility of the Two Victims’ accounts, and their
420 consistency with the Conviction Decision and the accounts of other victims.
For the foregoing reasons, the Appeals Chamber finds that the Defence has not
demonstrated that the Trial Chamber erred by not requiring the Two Victims to support
Victims’ Joint Submissions of 17 April 2023 413 , para. 16. See also paragraph 224 below. 414 Impugned Decision , para. 442. Defence’s Submissions of 19 May 2023 415 , paras 29, 31. 416 Impugned Decision , para. 506. 417 Confidential ex parte Annex I to Impugned Decision, paras 1018, 1046. 418 Transmission to the Defence of 63 Redacted Victim Dossiers pursuant to Trial Chamber IX Decision ICC-02/04-01/15-2027, 15 March 2023, ICC-02/04-01/15-2034-Conf-Exp-Anx20; ICC-02/04-01/15- 2034-Conf-Exp-Anx21. 419 Impugned Decision , para. 506, referring to para. 442. 420 Confidential ex parte Annex I to Impugned Decision, paras 1014-1015, 1043-1044.
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421 their claims with medical documentation. Accordingly, the Appeals Chamber rejects the seventh ground of appeal.
H. Eighth ground of appeal: Alleged errors concerning the scope of Mr Ongwen’s liability in relation to his time as the commander of the Sinia brigade
Under this ground of appeal, the Defence submits that the Trial Chamber erred in 422 fact in its estimation of the number of victims of SGBC and child soldiers, by failing to take into account that Mr Ongwen was not the commander of the Sinia brigade for 423 47.62% of the temporal scope of the case. According to the Defence, the Trial Chamber’s error significantly increased the estimated number of victims of the thematic 424 crimes and, in turn, the amount of reparations imposed on Mr Ongwen.
1 Relevant part of the Impugned Decision The Trial Chamber noted that, in awarding reparations in the instant case, it remained within the confines of the Conviction Decision and the Sentencing Decision, 425 in accordance with the jurisprudence of the Court. The Trial Chamber further noted that:
[A]t this juncture of the proceedings, the Chamber is no longer open to the possibility of the parties raising new issues or challenging findings that stem from or relate to the [Conviction Decision] and [Sentencing Decision], nor has the Chamber entertained reparations for acts and conduct whose authorship or causation was not determined beyond reasonable doubt in the [Conviction 426 Decision] and [Sentencing Decision].
In respect of the use of evidence from the trial proceedings, the Trial Chamber
noted that:
[W]here it made a specific evidentiary finding in the [Conviction Decision] or [Sentencing Decision], it will, in the present [Impugned Decision], also rely on that finding. This is because, in such instances, the finding has already been
421 Appeal Brief , paras 88-89, 93-96, 98. 422 Appeal Brief , para. 100. 423 Appeal Brief , para. 107; see also paras 100, 102. 424 Appeal Brief , para. 100; see also para. 111. 425 Impugned Decision , para. 20, referring to Ntaganda A4 A5 Appeal Judgment , para. 482; Lubanga A7 A8 Judgment , para. 311. 426 Impugned Decision , para. 20.
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established beyond reasonable doubt – a higher standard of proof than the one 427 applicable to reparations proceedings.
In relation to the Defence’s submission that the estimated number of victims of
the thematic crimes of which Mr Ongwen was convicted “should be discounted by
52.38%” in order to reflect the 22-month period during which he “controlled” the Sinia
428 brigade, the Trial Chamber reiterated that “Mr Ongwen’s conviction for conscripting
and use in hostilities of children under the age of 15 pertained to the period between
”, and dismissed the Defence’s argument. 429 1 July 2002 and 31 December 2005
2 Summary of the submissions
The Defence submits that the Trial Chamber erred in fact in its estimation of the
number of victims of the thematic crimes by failing to take into account that
Mr Ongwen was not the commander of the Sinia brigade “during the entire jurisdiction
430 431 of the case”, as he was appointed the commander of the brigade on 4 March 2004.
It contends that the Trial Chamber’s error resulted in “a significant increase in the
432 amount of reparations owed by Mr Ongwen”. The Defence requests that the Appeals
Chamber overturn these findings and order the Trial Chamber to adopt its estimation of
the number of victims of the thematic crimes based on “new calculations”. 433
Victims Group 1 submit that the Defence cannot raise the same argument that it
made before the Trial Chamber concerning Mr Ongwen’s role as the commander of the
434 Sinia brigade in relation to the temporal scope of the case. They refer in this regard
to the Trial Chamber’s findings that: (i) the Impugned Decision remains within the
confines of the Conviction Decision and the Sentencing Decision; and that (ii) the Trial
Chamber relied upon the evidential findings established beyond reasonable doubt in the
435 Conviction Decision as evidence. Victims Group 1 aver that, in light of the clear
427 Impugned Decision , para. 21. Defence’s Submissions of 17 February 2023 428 Impugned Decision , para. 734, referring to , paras 17, 19; Defence’s Submissions of 22 March 2023 , para. 14. 429 Impugned Decision , para. 734 (emphasis added), referring to Conviction Decision , p. 1076. 430 Appeal Brief , para. 100; see also paras 102-107. 431 Appeal Brief , para. 102, referring to Conviction Decision , paras 137, 1077. 432 Appeal Brief , para. 100; see also paras 103-105. 433 Appeal Brief , paras 111-112 (emphasis in original omitted); see also paras 108-110. Victims Group 1’s Response 434 , para. 69. Victims Group 1’s Response 435 , para. 69, referring to Impugned Decision , paras 20-21.
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findings of the Trial Chamber, there is no basis for the Defence’s estimates and the 436 Defence fails to identify the alleged error.
Victims Group 2 submit that the Trial Chamber rejected the same argument of the Defence at trial and, in the Impugned Decision, correctly found that Mr Ongwen has been convicted of the child-soldier related crimes for the period between 1 July 2022 and 31 December 2005, “independently of his subsequent role as Sinia [b]rigade [c]ommander”. 437
3 Determination by the Appeals Chamber Under this ground of appeal, the Defence submits that the Trial Chamber failed to take into account that “Mr Ongwen was not the commander of Sinia [b]rigade for 47.62% of the temporal scope of the case”, 438 since he only “became responsible for the abductions and SGBC committed by persons operating in Sinia [b]rigade” on 4 March 2004, when he was appointed as the commander of the brigade, rather than on 439 1 July 2002.
The Appeals Chamber notes that, as correctly observed by Victims Group 1 and 440 Victims Group 2, the Defence attempts to re-litigate an issue that was considered and ruled upon by the Trial Chamber in the Conviction Decision and confirmed on appeal. Contrary to its own statement that it does not contest Mr Ongwen’s conviction of the conscription of children under the age of 15 years and their use in armed hostilities from 441 1 July 2002 to 31 December 2005, the Defence’s present argument, in fact, attempts 442 to challenge, once more, the scope of Mr Ongwen’s conviction in this regard.
In particular, the Trial Chamber, in the Conviction Decision, found Mr Ongwen to be criminally responsible of, inter alia , “the war crime of conscripting children under the age of 15 into an armed group and using them to participate actively in hostilities, pursuant to [a]rticles 8(2)(e)(vii) and 25(3)(a) of the Rome Statute, between 1 July 2002
Victims Group 1’s Response 436 , paras 71-72. Victims Group 2’s Response 437 , para. 52, referring to Impugned Decision , para. 734. 438 Appeal Brief , paras 100, 107. 439 Appeal Brief , para. 102. Victims Group 1’s Response Victims Group 2’s Response 440 , para. 67; , para. 52. 441 See Appeal Brief , para. 103. 442 Appeal Brief , paras 100, 107.
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443 and 31 December 2005 in Northern Uganda”, and the sexual and gender-based crimes, including forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy and outrage upon person dignity “between 1 July 2002 and 31 December 2005” in Northern Uganda. 444 When addressing a similar argument which the Defence raised in its appeal against the Conviction Decision, the Appeals Chamber noted that the Trial Chamber, in reaching this conclusion, considered Mr Ongwen’s different 445 formal positions within the Sinia brigade. The Appeals Chamber also took note of the Trial Chamber’s findings, not challenged by the Defence at the time, that prior to becoming the brigade commander of the Sinia brigade on 4 March 2004, Mr Ongwen was the battalion commander of the Oka battalion until 17 September 2003, when he was appointed second-in-command of the Sinia brigade; and on 15 November 2003, he 446 was promoted to the rank of lieutenant colonel.
In the same vein, the Appeals Chamber, in the Conviction Appeal Judgment, rejected the Defence’s contention that Mr Ongwen could not be held criminally responsible for the conscription and use in armed hostilities of children under the age 447 of 15 years and for forced marriage prior to 4 March 2004. It found that the Defence’s argument was “based on a misunderstanding of the charges confirmed in this case”, given that the charges against Mr Ongwen were “not limited to the period when he was the Sinia brigade commander”, but “covered the entire period between 1 July 2002 and 31 December 2005”. 448 The Appeals Chamber also found that the Defence had not demonstrated any error in the Trial Chamber’s findings on Mr Ongwen’s criminal 449 responsibility in this context.
The Defence raised a similar issue in the reparations proceedings. In the Impugned Decision, the Trial Chamber dismissed that argument of the Defence, reiterating that Mr Ongwen has been convicted of conscription of children under the age of 15 years and their use in armed hostilities in “the period between 1 July 2002
443 Conviction Decision , paras 3115-3116, p. 1076 (emphasis added). 444 Conviction Decision , paras 3026, 3034, 3043, 3049, 3055, 3062, 3068, 3100, pp. 1073-1076. 445 Conviction Appeal Judgment , para. 923, referring to Conviction Decision , paras 1013-1083. 446 Conviction Appeal Judgment , para. 923, referring to Conviction Decision , paras 134, 136. See also Conviction Decision , para. 137. 447 Conviction Appeal Judgment , paras 921, 925, 1031, 1033. 448 Conviction Appeal Judgment , para. 1033. 449 See Conviction Appeal Judgment , para. 922 (footnotes omitted), referring to Conviction Decision , paras 3106-3114; Conviction Appeal Judgment , paras 926-927.
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450 451 and 31 December 2005”. Moreover, as the Trial Chamber correctly noted, “in awarding reparations, a trial chamber must remain within the confines of the conviction and sentencing decisions”. 452 Therefore, the Appeals Chamber’s findings with respect to the Defence’s argument seeking to limit Mr Ongwen’s criminal responsibility are relevant to the Defence’s present contention concerning the alleged limitation of the scope of his liability for reparations. The Trial Chamber thus correctly dismissed the Defence’s argument regarding the time of Mr Ongwen’s appointment as the commander of the Sinia brigade.
The Appeals Chamber notes that the Defence merely disagrees with the Trial Chamber’s findings, without identifying any error. In this regard, the Appeals Chamber notes with concern the Defence’s statement that “Mr Ongwen cannot be held responsible for crimes […] as the brigade commander until he [became the commander of the Sinia brigade]”. 453 As discussed above, the Defence raised the same issue in its appeal against the Conviction Decision and the Appeals Chamber rejected its arguments. The Appeals Chamber finds it inappropriate that the Defence attempts to re-litigate a matter that has already been settled in previous appellate proceedings and that it does so without even mentioning the Appeals Chamber’s findings made in those proceedings.
With respect to the effect of Mr Ongwen’s time spent in sickbay on the exercise of his authority, the Appeals Chamber observes that the Defence submits a hypothetical example of a child under the age of 15 years who could have been conscripted and used in armed hostilities during the time Mr Ongwen was in sickbay, and escaped in early 454 2003. As with the previous argument under this ground of appeal, the Defence omits to mention that it made a similar argument in its appeal against the Conviction Decision. In addressing that argument, the Appeals Chamber recalled the findings in the Conviction Decision that during the period when Mr Ongwen was injured and placed in sickbay, he “retained command” and “maintained communication with other high commanders of the LRA”, and that “any disruption to [Mr] Ongwen’s exercise of his
450 Impugned Decision , para. 734, referring to Conviction Decision , p. 1076. 451 Impugned Decision , para. 20. 452 Ntaganda A4 A5 Appeal Judgment , para. 482; Lubanga A7 A8 Judgment , para. 311. 453 Appeal Brief , para. 100 (emphasis added). 454 Appeal Brief , para. 106. No: ICC-02/04-01/15 A3 69/90
powers as Oka battalion commander was limited in time”, as “he was again exercising his authority as battalion commander as early as December 2002”. 455 The Appeals Chamber therefore concluded that the fact that Mr Ongwen was in sickbay during the time of the victims’ abduction “does not negate his responsibility so long as he retained command as a military commander in the LRA”. 456
In light of the foregoing, the Appeals Chamber finds that the Defence has failed to demonstrate any error in the Trial Chamber’s dismissal of the Defence’s submission that the estimated number of victims of the thematic crimes should be discounted to reflect that Mr Ongwen was appointed as the commander of the Sinia brigade on 4 March 2004. Accordingly, the Defence’s arguments in this regard are rejected. As a result, the Appeals Chamber will not entertain the Defence’s submissions on its “new calculations” 457 of the estimated number of victims of the thematic crimes.
Accordingly, the Appeals Chamber rejects the eighth ground of appeal.
I. Ninth ground of appeal: Alleged errors concerning the Trial Chamber’s use of the divisor of four, instead of five, in relation to the number of LRA brigades
Under this ground of appeal, the Defence submits that the Trial Chamber erred in 458 fact in its estimation of the number of victims of SGBC and child soldiers, by failing to take into consideration that there were five, rather than four, LRA operational units, 459 including Control Altar. According to the Defence, the Trial Chamber’s error significantly increased the estimated number of victims of the thematic crimes and 460 Mr Ongwen’s liability.
1 Relevant part of the Impugned Decision In addressing the Defence’s submission that the Registry, in its estimation of the number of victims, should have applied a divisor of six to reflect that there were six LRA units at the relevant level, including Control Altar and Jogo division, during the
455 Conviction Appeal Judgment , para. 1034, referring to Conviction Decision , paras 1037-1038, 1044. 456 See Conviction Appeal Judgment , para. 1034. 457 Appeal Brief , paras 109-111. 458 Appeal Brief , para. 113. 459 Appeal Brief , paras 113-116. 460 Appeal Brief , paras 100, 113.
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461 period relevant to the charges in this case, the Trial Chamber dismissed the Defence’s
arguments, recalling the relevant findings in the Conviction Decision and its overall
462 conclusion that the LRA was divided into four brigades.
2 Summary of the submissions
The Defence submits that the Trial Chamber erred in fact by failing to take into
account that “Control Altar was an operational unit”, 463 and using the divisor of four,
instead of five, in estimating the number of victims of SGBC and child-soldier related
464 crimes attributed to Mr Ongwen. According to the Defence, the Trial Chamber’s
failure in this respect significantly increased the estimated number of victims of those
465 crimes. The Defence requests that the Appeals Chamber “overturn [these findings]
and order” the Trial Chamber to adopt an estimation of the number of victims based on
“new calculations”, using a divisor of five: “1,379 persons, not 2,377 as the Chamber
calculated”, which renders “an 988-person difference, equating to a €748,500
difference in the amount of reparations”. 466
Victims Group 1 submit that the figures provided by the Defence under this
ground of appeal are based on “an incorrect appreciation” of the Impugned Decision
and the suggested divisor of five “lacks basis and merit”. 467
Victims Group 2 submit that the Defence’s argument under this ground of appeal
“lacks merit and should be rejected”, considering that the Trial Chamber correctly relied
upon the relevant findings in the Conviction Decision that the LRA was divided into
four brigades, and thus remained within the confines of the Conviction Decision and
468 the Sentencing Decision.
Defence’s Submissions of 17 February 2023 461 Impugned Decision , para. 734, referring to , paras 14-15. 462 Impugned Decision , para. 734, referring to Conviction Decision , paras 123, 856-857, 862, 2799; T-105 , p. 57, lines 7-11, p. 62, lines 15-20; T-160 , p. 9, lines 10-12; T-240 , p. 32, lines 18-20; T-154 , p. 20, lines 19-22, p. 21, lines 21-23; T-111 , p. 50, lines 2-9. 463 Appeal Brief , para. 113. 464 Appeal Brief , paras 113, 116. 465 Appeal Brief , para. 113. 466 Appeal Brief , paras 122-123 (emphasis in original omitted). Victims Group 1’s Response 467 , para. 76. Victims Group 2’s Response 468 , paras 54-55.
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3 Determination by the Appeals Chamber
Under this ground of appeal, the Defence submits that the Trial Chamber erred in
fact by dividing the estimated number of former child soldiers and victims of SGBC in
the LRA during the temporal jurisdiction of the case by four, instead of five, since there
were four brigades and Control Altar, which “acted as a brigade”. 469
470 Similar to its submissions under the eighth ground of appeal, the Defence
merely disagrees with the Trial Chamber’s findings, without identifying any error.
Furthermore, the Defence does not mention that it, in fact, raised the same argument
before the Trial Chamber and that the Trial Chamber dismissed it. The Appeals
Chamber recalls in this regard that when raising on appeal an issue which the appellant
previously raised before the trial chamber and on which the trial chamber ruled, he or
she must identify alleged errors in the relevant ruling of the trial chamber, to the extent
471 that that ruling deals with that issue raised on appeal. In this context, the Appeals
Chamber observes that the Trial Chamber, in the Impugned Decision, considered and
dismissed a similar argument of the Defence that Control Altar and Jogo division
“operated the same as the Sinia, Trinkle, Stockree and Gilva [b]rigades”. 472 As correctly
473 noted by the Trial Chamber, the factual findings in the Conviction Decision on the
structure of the LRA clearly indicate that “the LRA was divided into four brigades:
Sinia, Stockree, Gilva and Trinkle”, 474 and that Control Altar was described as the
“headquarters” of the LRA, “the high command”, “the overall group” and “the big
group where most senior commanders [were]”. 475 The Trial Chamber further noted the
absence of any evidence or information in support of the Defence’s assertion. 476
In the present appeal, the Defence contends again that Control Altar, “[f]or all
intent and purposes, […] acted as a brigade, fighting the UPDF, abducting persons and
taking forced wives”, 477 without demonstrating any error of the Trial Chamber in its
reasoning or conclusion dismissing the Defence’s argument in this regard. The Appeals
469 Appeal Brief , paras 113, 115-117. 470 See paragraph 197 above. 471 Ntaganda A A2 Judgment , para. 95; Conviction Appeal Judgment , para. 131. Defence’s Submissions of 17 February 2023 472 Impugned Decision , para. 734, referring to , paras 14-15. 473 Impugned Decision , para. 734, referring to , inter alia , Conviction Decision , paras 123, 856-857, 2799, 2807; T-160 , p. 9, lines 10-12; T-240 , p. 32, lines 18-20. 474 Conviction Decision , paras 123, 857, 2799, 2807. 475 Conviction Decision , paras 123, 855-857, 2799. 476 Impugned Decision , para. 734. 477 Appeal Brief , para. 115.
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Chamber notes that the Defence refers in support to the passages in the Prosecutor’s
Application for Warrants of Arrest and Document Containing the Charges, as well as 478 the Confirmation Decision. However, the Appeals Chamber recalls that the factual findings in the Conviction Decision upon which the Trial Chamber relied have been 479 established beyond reasonable doubt, which is a different and higher standard of 480 proof than that required for a pre-trial chamber’s issuance of a warrant of arrest and 481 confirmation of charges. The Defence does not refer to any evidence or the Trial Chamber’s findings in the Conviction Decision to support its proposition that the Trial Chamber’s use of the divisor of four was erroneous.
In light of the foregoing, the Appeals Chamber finds that the Defence has not shown that the Trial Chamber’s use of the divisor of four, taking into account that there
were four LRA brigades, was unreasonable. Accordingly, the Defence’s argument is rejected. Consequently, the Appeals Chamber will not address the Defence’s submissions on its “new calculations” 482 of the estimated number of victims of the thematic crimes.
Accordingly, the Appeals Chamber rejects the ninth ground of appeal.
J. Thirteenth ground of appeal: Alleged erroneous assessment of moral harm
Under this ground of appeal, the Defence submits that the Trial Chamber erred in fact in determining that victims suffered moral harm, without requiring medical, 483 psychological and/or psychiatric evidence and/or the examination of at least some of 484 the victims in the Sample by an expert psychiatrist or psychologist. The Defence avers that it was a “double standard” for the Trial Chamber to refuse to recognise
478 Appeal Brief , paras 114-115. 479 See Impugned Decision , para. 21. 480 The Appeals Chamber notes that pursuant to article 58 of the Statute, a pre-trial chamber shall, upon the Prosecutor’s application, issue a warrant of arrest of a person, if it is satisfied that “[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court” and “[t]he arrest of the person appears necessary” (emphasis added). 481 The Appeals Chamber notes that pursuant to article 61(7) of the Statute, a pre-trial chamber shall determine “whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged” (emphasis added). 482 Appeal Brief , paras 120-122. 483 Appeal Brief , paras 125-126, 143. 484 Appeal Brief , paras 133-136.
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Mr Ongwen’s victimhood, while addressing similar victimhood with respect to victims
485 of the LRA.
1 Relevant background and part of the Impugned Decision
In the Conviction Decision, the Trial Chamber found, based on expert evidence
and other corroborating evidence, that “Dominic Ongwen did not suffer from a mental
disease or defect at the time of the conduct relevant under the charges” and that,
therefore, “[a] ground excluding criminal responsibility under Article 31(1)(a) of the
Statute is not applicable”. 486 In addressing the issue of whether duress as a ground
excluding criminal responsibility under article 31(1)(d) of the Statute applied, the Trial
Chamber found that “there is no basis in the evidence to hold that Dominic Ongwen
was subjected to a threat of imminent death or imminent or continuing serious bodily
harm to himself or another person at the time of his conduct underlying the charged
crimes”. 487
In the Conviction Appeal Judgment, the Appeals Chamber rejected all grounds
of the Defence’s appeal relating to the Trial Chamber’s findings on Mr Ongwen’s
488 mental disease or defect. It also concluded that “the Defence ha[d] not demonstrated
any error that would warrant the Appeals Chamber’s intervention in relation to the Trial
Chamber’s findings on duress as a ground for excluding criminal responsibility”. 489
In the Impugned Decision, the Trial Chamber found that “[m]oral harm may
include psychological harm or trauma, mental pain and anguish, emotional distress,
490 psychosocial harm, and loss of life plan”. In concluding that the victims of the present
491 case experienced moral harm, the Trial Chamber relied upon, inter alia , the findings
in the Conviction Decision and the Sentencing Decision that some victims were forced
492 493 to kill people and others were forced to watch someone being killed. The Trial
485 Appeal Brief , paras 127-132, 140-142. 486 Conviction Decision , para. 2580. 487 Conviction Decision , para. 2668. 488 Conviction Appeal Judgment , paras 1277, 1288, 1340, 1384. 489 Conviction Appeal Judgment , para. 1598. 490 Impugned Decision , para. 168 (emphasis in original omitted and footnotes omitted); see also paras 269, 369, 414. 491 Impugned Decision , para. 414(a)(ii), (b)(i), (c)(ii), (d)(ii), e(i), (f)(ii), (g)(i). 492 Impugned Decision , paras 236, 293, 297, 362. 493 Impugned Decision , paras 236, 266, 362.
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Chamber also recalled its findings on the long-lasting psychological suffering caused 494 by such experience.
The Trial Chamber analysed all dossiers of victims contained in the Sample to conclude that all 198 victims, who had established their victimhood, also established, on a balance of probabilities: (i) “to have suffered harm falling within the scope of the harms defined by the Chamber as those caused to direct and indirect victims of the 495 crimes for which Mr Ongwen was convicted”; and (ii) “the causal link between the harm and at least one of the crimes for which Mr Ongwen was convicted”. 496
Regarding moral harm, the Trial Chamber stated that
[t]he assessment of the Sample also allow[ed] [it] to estimate that a very high percentage of these victims indeed suffered moral harm, with approximately 90% of all direct victims of the attacks and of each of the crimes having demonstrated, 497 to the requisite standard of proof, to have suffered moral harm. The Trial Chamber further recalled “that ‘it is inherent to human nature that all those subjected to brutal acts […] experience intense suffering, anguish, terror and 498 insecurity’”. Accordingly, the Trial Chamber considered “that it shall not be necessary to scrutinise the specific moral harm alleged by each potential direct victim of crimes against persons committed during and in the aftermath of the attacks, once 499 their victimhood has been established on a balance of probabilities”. The Trial Chamber “presume[d] moral harm for all individuals who have established, on a balance of probabilities, to have personally experienced the attacks and are direct victims of crimes against persons committed during and in the aftermath of the 500 attacks”.
Regarding the former child soldiers in the Sample, the Trial Chamber referred to its findings, “based on abundant evidence”, as to “the extensive, severe, and long-lasting consequences” of, inter alia , the moral harm suffered by former child
494 Impugned Decision , paras 236, 238, 242, 269, 369. 495 Impugned Decision , para. 502. 496 Impugned Decision , para. 507. 497 Impugned Decision , para. 523 (footnotes omitted). 498 Impugned Decision , para. 523, referring to Ntaganda Reparation Order , para. 146. 499 Impugned Decision , para. 524. 500 Impugned Decision , para. 525; see also para. 556(a)(i).
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501 soldiers. The Trial Chamber noted that those victims suffered physical and moral
harms, inter alia , due to the exposure to violence and “being forced to commit and
witness the commission of crimes”. 502
2 Summary of the submissions
The Defence submits that the Trial Chamber erred in determining that “unproven
mental health issues” amounted to moral harm related to the attacks. 503 It argues that
moral harm, as defined by the Trial Chamber, comprises conditions which can only be
504 ascertained by medical, psychological and/or psychiatric evidence. The Defence
avers that the Trial Chamber erred in failing to establish the causal link between the
harms and the victims, based on the actual examination of at least some of the victims
505 in the Sample by an expert psychiatrist or psychologist. The Defence contends that
the Trial Chamber applied a “‘double standard’ on victimhood” by refusing to consider
Mr Ongwen’s abduction at the age of nine as relevant to the affirmative defences of
mental disease or defect and duress, while addressing such harm with respect to victims
506 of the LRA. The Defence submits that the Trial Chamber applied “distorted logic”
by embracing in the Impugned Decision the notion of long-lasting consequences of
child soldiering, despite having rejected a report on such consequences in the
507 Conviction Decision.
Victims Group 1 submit that this ground of appeal should be rejected, because:
(i) the Defence re-litigates issues that were conclusively determined in the Conviction
508 Decision; (ii) the Trial Chamber’s definition of moral harm and its adoption of
presumptions are consistent with the Court’s case-law; 509 and (iii) the Defence’s
argument that the Trial Chamber ought to have applied its findings on moral harm to
510 Mr Ongwen is unsupported by the Statute or any other law.
501 Impugned Decision , para. 550. 502 Impugned Decision , para. 550. 503 Appeal Brief , para. 124. 504 Appeal Brief , paras 125-126, 143. 505 Appeal Brief , paras 133-136. 506 Appeal Brief , paras 127-132, 140-142. 507 Appeal Brief , paras 137-139. Victims Group 1’s Response 508 , para. 79. Victims Group 1’s Response 509 , para. 80. Victims Group 1’s Response 510 , para. 84.
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Victims Group 2 submit that the Defence seeks to reverse factual findings made
511 in the Conviction Decision and the Sentencing Decision, and confirmed on appeal.
They argue that the comparison between the trauma suffered by Mr Ongwen and the
trauma suffered by the victims is “inapposite”, as the legal contexts in which these
512 traumas were considered are distinct, and victims do not seek to establish that they
suffer from mental health disorders, but to demonstrate that they suffer psychological
513 harm. Victims Group 2 submit that the Trial Chamber, while recognising the
suffering of Mr Ongwen, did not consider that this suffering could “shield him from
[criminal] responsibility”. 514
3 Determination by the Appeals Chamber
The Defence’s main argument under this ground of appeal is that in order to
515 determine whether victims suffered moral harm, the Trial Chamber ought to have
516 required medical, psychological and/or psychiatric evidence and/or the examination
517 of at least some of the victims in the Sample by an expert psychiatrist or psychologist.
The Appeals Chamber notes at the outset that the Defence does not appear to have
raised this argument before the Trial Chamber, despite being on notice that the victims
of the present case claimed to have suffered psychological harm and that they requested
the Trial Chamber to adopt factual presumptions in this regard. From the onset of the
reparations proceedings in this case, Victims Group 1 and Victims Group 2 argued that
psychological harm should be presumed for, among other victims, former child soldiers
518 and victims of the attacks. In its submissions before the Trial Chamber, the Defence
addressed a number of the arguments made by the victims, but not these specific
519 arguments.
The Appeals Chamber also notes that the Defence did not raise the issue of lack
of psychological examination or psychological evidence with respect to the victims
Victims Group 2’s Response 511 , paras 66, 72. Victims Group 2’s Response 512 , paras 68-70. Victims Group 2’s Response 513 , para. 71. Victims Group 2’s Response 514 , para. 72. 515 Appeal Brief , para. 124. 516 Appeal Brief , paras 125-126, 143. 517 Appeal Brief , paras 133-136. Victims Group 1’s Submissions of 6 December 2021 Victims Group 2’s Submissions 518 , paras 51-54; of 6 December 2021 , paras 63, 66. Defence’s Submissions of 7 March 2022 519 See , para. 39.
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concerned: (i) when Victims Group 1 and Victims Group 2, in their joint submissions on the Sample, averred that victims had difficulties in obtaining evidence of the harms which they suffered and that, therefore, “certain harms should be presumed”; 520 nor (ii) when it was provided with copies of the applications and given an opportunity to make submissions on the Sample, which included a number of victim applications that specifically described the type of harm, for which, in the view of the Defence, a 521 psychological examination should have been required. In fact, the Defence stated 522 that it did not contest those applications.
It thus appears that the Defence raises this issue for the first time on appeal. Having received the submissions of Victims Group 1 and Victims Group 2 on the adoption of presumptions of moral harm, the Defence could have reasonably raised its concerns in the proceedings before the Trial Chamber. It did not do so. As a result, the Trial Chamber did not have an opportunity to consider the Defence’s arguments in this respect and make a finding thereupon. Given the nature of these arguments, the Appeals Chamber finds that, if it were to examine them, this would exceed the scope of its appellate review, as there is no specific finding of the Trial Chamber to review in this 523 regard. The Appeals Chamber therefore dismisses these arguments of the Defence.
As regards the Defence’s contention that the Trial Chamber employed a “double standard” by refusing to consider Mr Ongwen’s victimhood caused by his abduction at 524 the age of nine, while addressing such victimhood with respect to victims of the LRA, the Appeals Chamber notes that the Defence raised some aspects of this argument before the Trial Chamber. It argued that, being himself a victim, “Mr Ongwen should be accorded the same privileges that will accrue to all the other former child soldiers in these reparations proceedings”. 525 The Trial Chamber, in the Impugned Decision, dismissed the Defence’s submission, recalling that Mr Ongwen’s age at the time of his
Victims’ Joint Submissions of 17 April 2023 520 , para. 17. 521 See , for example , Confidential ex parte Annex I to Impugned Decision, paras 650, 660, 676, 879, 1225, 2973, 2986. Defence’s Submissions of 19 May 2023 522 , para. 21. 523 See paragraph 87 above, referring to Sentencing Appeal Judgment , para. 108; Ongwen OA3 Judgment , para. 45; Blaškić Appeal Judgment , para. 222. 524 Appeal Brief , paras 127-132, 140-142. Defence’s Submissions of 6 December 2021 525 , paras 31-36.
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own abduction was not relevant to the charges against him and noting that “he 526 committed the relevant crimes when he was a fully responsible adult”.
The Appeals Chamber recalls, once more, that when raising on appeal an issue which the appellant previously raised before the trial chamber and on which the trial chamber ruled, he or she must identify alleged errors in the relevant ruling of the trial 527 chamber, to the extent that that ruling deals with that issue raised on appeal. Therefore, to the extent that the Defence’s present contention is similar to the aforementioned argument which the Defence made before the Trial Chamber, the Defence should have referred to the Trial Chamber’s relevant findings and identified any alleged error in those findings.
In any event, the Appeals Chamber is not persuaded that any parallel can be drawn between the Trial Chamber’s findings in the Conviction Decision concerning grounds excluding criminal responsibility and its findings on moral harm in the Impugned Decision. The former findings were made with a view to determining whether Mr Ongwen suffered from a mental disease or defect at the time of the relevant crimes and whether a ground excluding criminal responsibility under article 31(1)(a) of 528 the Statute was applicable. Similarly, the Trial Chamber examined the issue of whether duress as a ground excluding criminal responsibility under article 31(1)(d) of 529 the Statute applied. The Trial Chamber also considered the significance of Mr Ongwen’s abduction by the LRA and concluded that
while acknowledging that indeed Dominic Ongwen had been abducted at a young age by the LRA, the Chamber notes that Dominic Ongwen committed the relevant crimes when he was an adult and, importantly, that, in any case, the fact of having been (or being) a victim of a crime does not constitute, in and of itself, a justification of any sort for the commission of similar or other crimes – beyond the potential relevance of the underlying facts to the grounds excluding criminal 530 responsibility expressly regulated under the Statute.
526 Impugned Decision , para. 127. 527 See paragraph 207 above, referring to Ntaganda A A2 Judgment , para. 95; Conviction Appeal Judgment , para. 131. 528 Conviction Decision , para. 2580. See also Conviction Appeal Judgment , paras 1277, 1288, 1340, 1384. 529 Conviction Decision , para. 2668. See also Conviction Appeal Judgment , para. 1598. 530 Conviction Decision , para. 2672 (footnote omitted).
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The Trial Chamber’s findings in the Conviction Decision were made in order to determine whether Mr Ongwen was criminally responsible. This is materially different from the present reparation proceedings, where the Trial Chamber’s enquiry was whether victims are eligible to benefit from the awards for reparations based on the link 531 between the harm they suffered and the crimes of which Mr Ongwen was convicted.
Furthermore, when determining whether the alleged ground excluding criminal responsibility under article 31(1)(a) of the Statute was applicable, the Trial Chamber examined whether Mr Ongwen, “at the time of [his] conduct”, “suffer[ed] from a mental 532 disease or defect”. By contrast, in the present reparations proceedings, the Trial Chamber defined moral harm as including “psychological harm or trauma, mental pain 533 and anguish, emotional distress, psychosocial harm, and loss of life plan”. Under such a definition of moral harm, it was not necessary for the Trial Chamber, as correctly 534 observed by Victims Group 2, to require victims to demonstrate that they suffered from “a mental disease or defect” in order to establish that they suffered moral harm.
The Appeals Chamber also notes the Defence’s argument concerning the Trial Chamber’s rejection in the Conviction Decision of a report on the enduring effect on the mental health of having been a child soldier, while accepting in the Impugned 535 Decision that child soldiering may have long-lasting consequences. The Appeals Chamber notes that the Trial Chamber examined the report to which the Defence refers, as part of its determination “of whether Article 31(1)(a) or (d) of the Statute are fulfilled”. 536 In light of the foregoing considerations, the rejection of that report in the Conviction Decision cannot thus be compared to the Trial Chamber’s general acceptance in the context of the present reparations proceedings that former child 537 soldiers endured long-lasting consequences of the moral harm they suffered.
The Appeals Chamber therefore rejects these arguments of the Defence.
531 Impugned Decision , para. 89. 532 Article 31(1)(a) of the Statute. 533 Impugned Decision , para. 168 (footnotes omitted); see also paras 269, 369, 414. Victims Group 2’s Response 534 , para. 71. 535 Appeal Brief , paras 137-139. 536 Conviction Decision , para. 612. 537 Impugned Decision , paras 369, 550. No: ICC-02/04-01/15 A3 80/90
To the extent that the Defence may be understood to challenge as “inconceivable” the Trial Chamber’s failure to acknowledge Mr Ongwen’s victimhood in the Impugned 538 Decision, the Appeals Chamber notes that it is unclear from the Defence’s submissions what, in its view, the Trial Chamber should or could have done to this end. As mandated by article 75 of the Statute, the Trial Chamber assessed in the Impugned Decision the harm suffered by victims as a result of the crimes of which Mr Ongwen 539 was convicted. The Trial Chamber was not concerned in these reparations proceedings with any harm that Mr Ongwen himself may have suffered.
Furthermore, while, for the reasons just stated, the Trial Chamber did not make findings on Mr Ongwen’s victimhood in the Impugned Decision, it did acknowledge his childhood experience in other proceedings. In its determination of individual sentences, the Trial Chamber decided to give “certain weight” to the mitigating circumstances relating to Mr Ongwen’s childhood, “his abduction as a child by the LRA, the interruption of his education, the killing of his parents [and] his socialisation 540 in the extremely violent environment of the LRA”. The Appeals Chamber confirmed, by majority, the joint sentence of 25 years’ imprisonment imposed on Mr Ongwen. 541 The Appeals Chamber therefore rejects this argument of the Defence.
Having rejected or dismissed all arguments raised by the Defence, the Appeals Chamber rejects the thirteenth ground of appeal.
K. Fourteenth ground of appeal: Alleged errors concerning the Trial Chamber’s eligibility assessment of four victims in the Sample
Under this ground of appeal, the Defence submits that the Trial Chamber erred in its assessment of the dossiers of four victims of thematic crimes in the Sample
538 Appeal Brief , para. 132; see also paras 129, 142. 539 See Impugned Decision , para. 49. 540 Sentencing Decision , paras 87-88. 541 Sentencing Appeal Judgment , p. 6, para. 374. See also Partly Dissenting Opinion of Judge Ibáñez Carranza to the Sentencing Appeal Judgment , para. 196(c). No: ICC-02/04-01/15 A3 81/90
(hereinafter: “Four Victims”), 542 because it did not meet the standard of balance of
543 544 probabilities, and violated Mr Ongwen’s fair trial rights.
1 Relevant background and part of the Impugned Decision
In the Conviction Decision, the Trial Chamber found Mr Ongwen to be criminally
responsible for, inter alia , sexual and gender based crimes, including the crimes of
forced marriage, torture, rape, sexual slavery and enslavement, not directly perpetrated
by him, “from at least 1 July 2002 until 31 December 2005” in Northern Uganda
545 (Counts 61 to 68).
On 20 April 2023, the Trial Chamber rejected the Defence’s Request for the
Lifting of Redactions, holding that the Defence had failed to demonstrate that the
refusal to lift redactions in the applications unduly affected its ability to review and
546 comment on the Sample. On 1 November 2024, the Trial Chamber dismissed the
Defence’s Second Request for the Lifting of Redactions in limine , noting the Defence’s
attempt to “relitigate an issue that [had been] conclusively ruled upon in the [Decision
547 on Request for the Lifting of Redactions]”.
In confidential ex parte Annex I to the Impugned Decision, the Trial Chamber
assessed the accounts of the Four Victims in light of the relevant findings in the
Conviction Decision, the submissions of the parties and the accounts of other
548 individuals in the Sample who were victims of the same crimes. The Trial Chamber
542 Appeal Brief , paras 146-148 (victim a/07032/15), 149-150 (victim a/07053/15), 151-154 (victim a/07090/15), 155-157 (victim a/07093/15). 543 Appeal Brief , paras 148 (victim a/07032/15), 150 (victim a/07053/15). 544 Appeal Brief , paras 153 (victim a/07090/15), 156 (victim a/07093/15). 545 Conviction Decision , paras 3100, 3116, pp. 1075-1076 (“the crime of forced marriage, an inhumane act of a character similar to the acts set out in [a]rticle 7(1)(a)-(j), as a crime against humanity, pursuant to [a]rticles 7(1)(k), and 25(3)(a) of the [Statute]” (Count 61); “the crime against humanity of torture, pursuant to [a]rticles 7(1)(f) and 25(3)(a) of the [Statute]” (Count 62); “the war crime of torture, pursuant to [a]rticles 8(2)(c)(i) and 25(3)(a) of the [Statute]” (Count 63); “the crime against humanity of rape, pursuant to [a]rticles 7(1)(g) and 25(3)(a) of the [Statute]” (Count 64); “the war crime of rape, pursuant to [a]rticles 8(2)(e)(vi) and 25(3)(a) of the [Statute]” (Count 65); “the crime against humanity of sexual slavery, pursuant to [a]rticles 7(1)(g) and 25(3)(a) of the [Statute]” (Count 66); “the war crime of sexual slavery, pursuant to [a]rticles 8(2)(e)(vi) and 25(3)(a) of the [Statute]” (Count 67); “the crime against humanity of enslavement, pursuant to [a]rticles 7(1)(c) and 25(3)(a) of the [Statute]” (Count 68)). 546 Decision on Request for the Lifting of Redactions , paras 19-20, p. 10. See also paragraph 37 above. 547 Decision on Second Request for the Lifting of Redactions , para. 21, p. 10. See also paragraph 38 above. 548 See Confidential ex parte Annex I to Impugned Decision, paras 2843-2846, 2848-2860, 2896-2899, 2901-2910, 2917-2918, 2915-2916, 2920-2926, 2931-2934, 2936-2942.
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concluded that the Four Victims were eligible for reparations as victims of the crimes
549 of which Mr Ongwen was convicted.
2 Summary of the submissions
The Defence submits that the Trial Chamber erred in its determinations on the
eligibility of the Four Victims, and as a result, increased the number of SGBC
550 victims. Specifically, concerning victim a/07032/15, the Defence argues that the
Trial Chamber’s decision is based on “loose evidence and speculation”, and does not
551 meet the standard of balance of probabilities. Similarly, the Defence alleges that the
Trial Chamber’s decision on the eligibility of victim a/07053/15 “falls […] below the
balance of probabilities standard” because it failed to make “any concrete decision as
to who abducted” the victim. 552 Lastly, with respect to victim a/07090/15 and victim
a/07093/15, the Defence contends that the Trial Chamber’s refusal to lift redactions in
their applications “violated Mr Ongwen’s right to fair proceeding”. 553 It requests the
Appeals Chamber to (i) overturn the Trial Chamber’s decisions concerning victim
554 a/07032/15 and victim a/07053/15; (ii) order the Trial Chamber to lift redactions to
555 the applications of victim a/07090/15 and victim a/07093/15; and (iii) order the Trial
556 Chamber to review and adjust the estimated number of victims of thematic crimes.
Victims Group 1 submit that this ground of appeal should be rejected, as the
Trial Chamber took into consideration the Defence’s relevant submissions and its
conclusions are “grounded in” the Conviction Decision. 557
Victims Group 2 submit that this ground of appeal should be dismissed, because
the Defence’s argument thereunder reflects “a mere disagreement”. 558 They aver that
the Trial Chamber’s conclusions on the Four Victims are based upon its consideration
549 Confidential ex parte Annex I to Impugned Decision, paras 2864, 2914, 2930, 2946. 550 Appeal Brief , paras 144-153, 155-156. 551 Appeal Brief , paras 146-148. 552 Appeal Brief , para. 150. 553 Appeal Brief , paras 151-153, 155-156. 554 Appeal Brief , paras 148, 150. 555 Appeal Brief , paras 154, 157. 556 Appeal Brief , para. 159. Victims Group 1’s Response 557 , paras 86, 107. Victims Group 2’s Response 558 , paras 76-77.
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of the Defence’s relevant submissions and unredacted information provided by these 559 victims against the balance of probabilities standard.
3 Determination by the Appeals Chamber
a. Alleged violation of the principle of in dubio pro reo
At the outset, the Appeals Chamber notes that, other than merely stating that the Trial Chamber, in its assessment of the dossiers of the Four Victims, “violated the legal maxim of in dubio pro reo ”, the Defence does not develop any arguments in support of 560 its submission. Notably, the Defence does not refer to any provision of the Court’s legal texts which, in its view, was violated. Accordingly, the Defence’s submission in this regard is dismissed.
b. Victim a/07032/15
The Defence argues that the Trial Chamber, in its determination on the eligibility of victim a/07032/15, erroneously relied upon the testimony of P-0205 and made a “highly speculative” finding concerning the abductors of the victim. 561 In the view of the Defence, victim a/07032/15 could not have been the person to whose abduction witness P-0205 referred in his testimony, as the events described by each of them 562 occurred at different times. However, the Appeals Chamber notes that there is no suggestion in the Trial Chamber’s findings that a/07032/15 was the person to whom the testimony of P-0205 relates. That testimony, corroborated by other evidence on the record, merely served the Trial Chamber to observe that “it was a common practice” 563 for members of the Sinia brigade who were in this particular area to abduct girls. The Defence misrepresents the Trial Chamber’s findings and fails to demonstrate that it was an error for the Trial Chamber to rely upon the testimony of P-0205 in this context. Furthermore, the Appeals Chamber notes that the Trial Chamber’s consideration of P-0205’s testimony was not determinative to its conclusion. Rather, the Trial Chamber considered this testimony in addition to its assessment of the account of the
Victims Group 2’s Response 559 , para. 75. 560 See Appeal Brief , para. 145. 561 Appeal Brief , paras 146-148. 562 Appeal Brief , para. 146. 563 Confidential ex parte Annex I to Impugned Decision, para. 2852. No: ICC-02/04-01/15 A3 84/90
victim, the relevant findings in the Conviction Decision and the joint submissions of
564 victims, as well as the relevant submissions of the Defence.
In particular, the Trial Chamber duly addressed the Defence’s arguments, which
are raised again on appeal, concerning the proximity of the location of the Sinia brigade
to the date and location of the victim’s abduction and rape. 565 In this regard, the Trial
Chamber recalled its findings in the Conviction Decision that: (i) “Mr Ongwen was
convicted of abducting ‘women and girls in Northern Uganda’”; 566 (ii) “to be a victim
of rape as a crime against humanity and as a war crime (Counts 64 and 65), it is
sufficient that the [victim] was abducted from at least 1 July 2002 until 31 December
2005” in Northern Uganda and “was ‘distributed’ to members of the Sinia brigade”; 567
and that (iii) Mr Ongwen was convicted of SGBC crimes that were not directly
568 perpetrated by him provided that the facts occurred within the Sinia brigade. It also
recalled the finding in the Conviction Decision that the Sinia brigade’s location of the
preparation before the attack on Odek IDP camp was not precise, “but rather only that
the gathering [which] took place right before the attack […] was in the bush, […]
northwest of Odek”. 569 In this context, the Trial Chamber noted that the location of the
abduction of the victim was “in the same district as Odek IDP [c]amp”. 570
The Defence seeks to challenge these findings of the Trial Chamber on the basis
that “[i]t is just as likely that [a/07032/15] was abducted by members from Gilva,
571 Trinkle or Stockree Brigades, [given that] Gilva sickbay was operating” in the area.
However, the Defence’s submission is speculative and does not refer to any evidence
supporting this proposition. Moreover, it does not explain why the alleged location of
Gilva sickbay in that area is indicative of the presence of members of brigades other
564 See Confidential ex parte Annex I to Impugned Decision, paras 2848-2860. Defence’s Submissions 565 Confidential ex parte Annex I to Impugned Decision, para. 2850, referring to of 19 May 2023 , paras 75-79. 566 Confidential ex parte Annex I to Impugned Decision, para. 2855 (footnote omitted), referring to Conviction Decision , para. 212. 567 Confidential ex parte Annex I to Impugned Decision, paras 2850, 2855-2856, referring to Conviction Decision , paras 212, 3116, 3079-3080, p. 1076. 568 Confidential ex parte Annex I to Impugned Decision, para. 2850, referring to Conviction Decision , para. 2094. 569 Confidential ex parte Annex I to Impugned Decision, para. 2850, referring to Conviction Decision , para. 1406. 570 Confidential ex parte Annex I to Impugned Decision, para. 2851. See also T-47 , p. 44, lines 14-17 (“The distance between Odek and the [gathering], where the standby was, it took one day to walk to there”). 571 Appeal Brief , para. 147.
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than the Sinia brigade in the area at the relevant time. The Defence does not demonstrate that such alleged presence in the area makes it more likely than not that members of those other brigades committed the crimes against victim a/07032/15. The Appeals Chamber therefore rejects this argument as unsubstantiated.
As regards the Defence’s contention concerning the Trial Chamber’s finding that it was more likely than not that the victim was abducted by soldiers from the Sinia 572 brigade who did not participate in the attack on Odek IDP camp, the Appeals Chamber notes that this finding of the Trial Chamber is based on the trial testimony of former LRA members that the fighters sent to attack the Odek IDP camp were only “ 573 part of the Sinia brigade”. The Defence does not identify any error in this finding.
In light of the above, the Appeals Chamber rejects the Defence’s arguments concerning victim a/07032/15.
c. Victim a/07053/15
The Defence alleges that the Trial Chamber made a determination as to who abducted victim a/07053/15 merely on the basis that “her accounts were similar to other victim applicants on the record”, “without any true evidence or connection to Sinia [b]rigade”. 574 The Appeals Chamber notes that the Defence misrepresents the Trial Chamber’s findings in this regard. Contrary to the Defence’s contention, the Trial Chamber carefully assessed the victim’s account in light of not only the accounts of other individuals in the Sample who were victims of the same crimes, but also the findings in the Conviction Decision, the joint submissions of victims and the relevant 575 submissions of the Defence.
In respect of the Defence’s claim that the Trial Chamber “expanded the definition of SGBC victims beyond the [Conviction Decision]”, 576 the Appeals Chamber notes that the Defence does not develop any arguments pertaining to this submission. The Defence appears to re-litigate its argument before the Trial Chamber that a/07053/15 is
572 Appeal Brief , paras 147-148, referring to Confidential ex parte Annex I to Impugned Decision, para. 2853. 573 Confidential ex parte Annex I to Impugned Decision, para. 2853 (emphasis added), referring to Conviction Decision , para. 1410. See also T-148 , p. 42, lines 14-19. 574 Appeal Brief , para. 150. 575 See Confidential ex parte Annex I to Impugned Decision, paras 2901-2910. 576 Appeal Brief , para. 144. No: ICC-02/04-01/15 A3 86/90
“not a victim of a SGBC for which Mr Ongwen was convicted”, as the “SGBC [she] described is not one which involves abduction and enslavement for the purpose of doing household chores or becoming a sexual slave to a male member of the LRA”. 577 The Appeals Chamber notes in this regard that the Trial Chamber dismissed the same argument of the Defence and recalled the following relevant findings in the Conviction Decision:
[F]or forced marriage as a crime against humanity (Count 61), it is sufficient that a wom[a]n or girl was abducted as so called ‘wives’, […] for torture as a crime against humanity and as a war crime (Counts 62 and 63), it is sufficient that the wom[a]n or girl abducted was subjected to severe physical and mental pain, for rape as a crime against humanity and as a war crime (Count[s] 64 and 65) […] abducted women and girls who had been distributed were regularly forced into 578 sexual intercourse. The Defence does not identify any error in these findings of the Trial Chamber. It only states that victim a/07053/15’s “story is similar to nearly everyone who was 579 abducted by every brigade in the LRA”. However, the Defence does not point to any brigade, other than the Sinia brigade, which, in its view, abducted the victim. It fails to explain why the manner in which crimes were committed against victim a/07053/15 is such that they cannot be attributed to the Sinia brigade.
In light of the above, the Appeals Chamber rejects the Defence’s arguments concerning victim a/07053/15.
d. Victims a/07090/15 and a/07093/15
With respect to victim a/07090/15 and victim a/07093/15, the Defence contends that the Trial Chamber’s refusal to disclose the redacted information in the dossiers of these victims violated Mr Ongwen’s fair trial rights as he is “the best person in the case” 580 to verify and determine coherency of all information provided by the victims.
At the outset, the Appeals Chamber notes that it has already considered and rejected the Defence’s arguments relating to the Trial Chamber’s refusal to disclose the
Defence’s Submissions of 19 May 2023 577 See , paras 93, 95-96. 578 Confidential ex parte Annex I to Impugned Decision, para. 2903 (footnotes omitted), referring to Conviction Decision , paras 213-221, 2124-2309, 3070-3071, 3073-3080, 3100, 3116, pp. 1075-1076. 579 Appeal Brief , para. 150. 580 Appeal Brief , paras 151-157.
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redacted information, namely the victims’ names, in the Sample, including in the
581 dossiers of victim a/07090/15 and victim a/07093/15.
The Defence’s present arguments regarding victims a/07090/15 and a/07093/15
are that, had it received access to the unredacted information in the dossiers of these
victims, it would have been able to verify whether these victims suffered harm as a
result of sexual and gender based crimes perpetrated by individuals or groups in the
Sinia brigade under Mr Ongwen’s command. 582 In this respect, the Appeals Chamber
notes that the Trial Chamber considered and dismissed the Defence’s similar arguments
relating to the redactions of the names of (i) the group which abducted victim
a/07090/15, its commander and the victim’s forced husband; 583 and (ii) victim
a/07093/15’s forced husband, her commander and the escort of her forced husband. 584
585 In reaching its conclusion to dismiss these arguments of the Defence, the Trial
Chamber recalled the scope of Mr Ongwen’s conviction for SGBC not directly
perpetrated by him (Counts 61 to 68), and reviewed the redactions implemented in their
586 dossiers. It concluded that the redactions in the dossier of victim a/07090/15 were
587 not prejudicial to the Defence, and those in the dossier of victim a/07093/15 were
necessary to ensure the victim’s safety. 588 Indeed, the Appeals Chamber has already
noted, under the first ground of appeal, that the Trial Chamber’s consideration of the
submissions of the Defence on the dossiers of, among others, victims a/07090/15 and
a/07093/15, shows that the Defence was able to make its observations, despite the
589 redactions.
In relation to the Defence’s claim that Mr Ongwen is “the best person in the case”
590 to verify and determine coherency of all information provided by the victims, the
Appeals Chamber notes that the Trial Chamber, in its assessment of the Sample, had
581 See paragraphs 45-56 above. 582 See Appeal Brief , paras 18, 153, 156. Defence’s 583 Confidential ex parte Annex I to Impugned Decision, paras 2918, 2924, referring to Submissions of 19 May 2023 , paras 98-99. See also Appeal Brief , para. 152. Defence’s 584 Confidential ex parte Annex I to Impugned Decision, paras 2934, 2940, referring to Submissions of 19 May 2023 , para. 102. See also Appeal Brief , para. 155. 585 Confidential ex parte Annex I to Impugned Decision, paras 2924, 2940. 586 Confidential ex parte Annex I to Impugned Decision, paras 2924, 2938, 2940. 587 Confidential ex parte Annex I to Impugned Decision, para. 2924. 588 Confidential ex parte Annex I to Impugned Decision, para. 2940. 589 See paragraph 47 above. 590 Appeal Brief , paras 153, 156.
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before it the unredacted accounts of all victims in the Sample and that, on this basis, it was able to determine coherency and credibility of accounts of victims a/07090/15 and a/07093/15, as well as consistency of their accounts with the relevant findings in the Conviction Decision and the accounts of other individuals in the Sample who were 591 victims of the same crimes. In light of the above, the Appeals Chamber rejects the Defence’s submissions in this regard. Lastly, the Appeals Chamber notes the Defence’s submission that the Trial Chamber was required to find that the man assigned as “husband” to victim a/07090/15 “was definitely” under Mr Ongwen’s command. 592 However, the Defence does not explain why the Trial Chamber ought to have made its finding to a standard that appears to be different from the standard of balance of probabilities, which the Trial Chamber applied in these proceedings. As such, the Appeals Chamber rejects the Defence’s argument.
e. Overall conclusion
Having dismissed or rejected all arguments of the Defence with respect to the Four Victims, and noting the absence of any substantiation pertaining to its request for 593 review and adjustment of the estimated number of victims of thematic crimes, the Appeals Chamber rejects the fourteenth ground of appeal in its entirety.
VII. APPROPRIATE RELIEF
In an appeal pursuant to article 82(4) of the Statute, the Appeals Chamber may 594 confirm, reverse or amend a reparation order. In the present case it is appropriate to confirm the Impugned Decision.
591 See Confidential ex parte Annex I to Impugned Decision, paras 2920-2926, 2936-2942. 592 Appeal Brief , para. 153. 593 See Appeal Brief , paras 158-159. 594 Rule 153(1) of the Rules. No: ICC-02/04-01/15 A3 89/90
_____________________________ Judge Solomy Balungi Bossa Presiding
_____________________________ _____________________________ Judge Tomoko Akane Judge Luz del Carmen Ibáñez Carranza
_____________________________ _____________________________ Judge Gocha Lordkipanidze Judge Erdenebalsuren Damdin
th Dated this 7 day of April 2025 At The Hague, The Netherlands
No: ICC-02/04-01/15 A3 90/90