Cultural Arguments and Cultural Defences in the <i>Ongwen</i> Case

Abstract Jurisprudential recognition and admission of cultural arguments (and cultural defences) are fundamental in international trials. This article examines why and how this complex, yet pivotal goal was achieved by the International Criminal Court (ICC) in the Ongwen case. It is argued that, although in this case the judges decided to convict the accused, addressing the cultural arguments raised by the defendant may be considered essential for different reasons. As in national systems, it is fundamental to implement the principle nulla poena sine culpa and to address relevant cultural arguments in international courtrooms in order to punish only those who are lawfully guilty of a crime. In addition, since international criminal law is inherently an amalgam of different legal systems, cultural relativism may be sometimes inevitable, and a nuanced attendance to specific cultures is therefore necessary. Most importantly, such judicial recognition of different cultures will be deemed significant for the goal of transitional justice — with trials acting as its pillar — in managing conflict, aiding reconciliation, and ending impunity within post-conflict communities. Challenging the limited usage of defences in international criminal justice in general and the opinion that cultural reasoning cannot be allowed in international criminal courtrooms, this article argues that cultural arguments and cultural defences can be raised before international judges. The article focuses on the Ongwen trial to show that the defence case strongly relied on cultural arguments and cultural defences, which did not fall on deaf judicial ears when it came to comprehensive judicial reference and cultural reasoning in the judgments.