ICC-02/04-01/15-2108 07-04-2025 1/90 A A3

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”

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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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JUDGMENT ................................................................ 6

I. KEY FINDINGS...................................................... 6

II. INTRODUCTION .................................................. 7

III. PROCEDURAL HISTORY ....................................... 9

A. Proceedings before the Trial Chamber .............................................................. 9

B. Proceedings before the Appeals Chamber ....................................................... 10

IV. STANDARD OF REVIEW ......................................11

A. Errors of law .................................................................................................... 11

B. Errors of fact .................................................................................................... 11

C. Procedural errors .............................................................................................. 12

D. Abuse of discretion .......................................................................................... 12

E. Substantiation of arguments ............................................................................. 13

V. PRELIMINARY ISSUE .........................................13

VI. MERITS ............................................................14

A. First ground of appeal: Alleged erroneous refusal to disclose the names of

victims ...................................................................................................................... 14

1. Relevant background and part of the Impugned Decision ........................ 14

2. Summary of the submissions ..................................................................... 16

3. Determination by the Appeals Chamber ................................................... 17

B. Second ground of appeal: Alleged errors in the Trial Chamber’s findings

relating to domestic proceedings ............................................................................. 22

1. Relevant background and part of the Impugned Decision ........................ 23

2. Summary of the submissions ..................................................................... 24

3. Determination by the Appeals Chamber ................................................... 25

C. Third ground of appeal: Alleged erroneous presumption regarding residents of

IDP camps and non-residents present at the time of the attacks .............................. 29

1. Relevant part of the Impugned Decision ................................................... 29

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2. Summary of the submissions ..................................................................... 30

3. Determination by the Appeals Chamber ................................................... 31

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 .............................................................................................................. 36

1. Relevant part of the Impugned Decision ................................................... 37

2. Summary of the submissions ..................................................................... 38

3. Determination by the Appeals Chamber ................................................... 40

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 ............................................. 49

1. Relevant part of the Impugned Decision ................................................... 49

2. Summary of the submissions ..................................................................... 50

3. Determination by the Appeals Chamber ................................................... 51

F. Sixth ground of appeal: Alleged error in prioritising participating direct victims

over non-participating direct victims ....................................................................... 58

1. Relevant part of the Impugned Decision ................................................... 58

2. Summary of the submissions ..................................................................... 59

3. Determination by the Appeals Chamber ................................................... 60

G. Seventh ground of appeal: Alleged error in failing to require medical

documentation .......................................................................................................... 62

1. Relevant part of the Impugned Decision ................................................... 62

2. Summary of the submissions ..................................................................... 63

3. Determination by the Appeals Chamber ................................................... 63

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 ................... 65

1. Relevant part of the Impugned Decision ................................................... 65

2. Summary of the submissions ..................................................................... 66

3. Determination by the Appeals Chamber ................................................... 67

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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 ...... 70

1. Relevant part of the Impugned Decision ................................................... 70

2. Summary of the submissions ..................................................................... 71

3. Determination by the Appeals Chamber ................................................... 72

J. Thirteenth ground of appeal: Alleged erroneous assessment of moral harm... 73

1. Relevant background and part of the Impugned Decision ........................ 74

2. Summary of the submissions ..................................................................... 76

3. Determination by the Appeals Chamber ................................................... 77

K. Fourteenth ground of appeal: Alleged errors concerning the Trial Chamber’s

eligibility assessment of four victims in the Sample ............................................... 81

1. Relevant background and part of the Impugned Decision ........................ 82

2. Summary of the submissions ..................................................................... 83

3. Determination by the Appeals Chamber ................................................... 84

VII. APPROPRIATE RELIEF ......................................89

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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

JUDGMENT

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
war crimes.1 On 28 February 2024, the Trial Chamber issued the Impugned Decision,2
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

(first ground of appeal);3

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
in the Impugned Decision (second ground of appeal);4

iii. presumptions concerning residents of the IDP camps and non-residents

present in these camps at the time of the attacks (third ground of appeal);5

iv. Acholi traditional and cultural factors and mechanisms (joint fourth,
eleventh and twelfth grounds of appeal);6

v. the legal basis for a symbolic cash award (fifth ground of appeal);7

vi. criteria for prioritisation of victims at the implementation stage (sixth

ground of appeal);8

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.
7
Appeal Brief, paras 67-75.
8
Appeal Brief, paras 76-87.

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vii. medical documentation to support applications of two victims (seventh

ground of appeal);9

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
ground of appeal);10

ix. the impact of the number of LRA operational units on the estimation of the
number of victims (ninth ground of appeal);11

x. psychological evidence and/or examination required to prove moral harm

(thirteenth ground of appeal);12 and

xi. the Trial Chamber’s findings on the eligibility of four victims (fourteenth
ground of appeal).13

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
Impugned Decision.14

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
used therein.15

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.
14
Victims Group 1’s Response, Victims Group 2’s Response.
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
and 31 December 2005.16

On 6 May 2021, the Trial Chamber sentenced Mr Ongwen to a total period of

25 years of imprisonment as a joint sentence.17 On the same day, the Trial Chamber
instructed the Defence, Victims Group 1, Victims Group 2, the Registry and the TFV
to make submissions on certain issues concerning reparations.18

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
beneficiaries of reparations, and transmit such a list to the Trial Chamber.19

On 16 January 2023, following the Registry’s transmission of the proposed list

of victims to be included in the Sample,20 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
and Victims Group 2 to make submissions on the dossiers in the Sample.21

On 17 April 2023 and 19 May 2023, Victims Group 1, Victims Group 222 and the
Defence23 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.
20
Registry’s Transmission of List of Individuals and Relevant Information for Reparation Sample.
21
Decision Approving the Sample, pp. 12-13.
22
Victims’ Joint Submissions of 17 April 2023; Victims Group 2’s Submission of Information Related
to the Sample Applications.
23
Defence’s Submissions of 19 May 2023.

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community-based reparations to the eligible victims and assessing Mr Ongwen’s

liability for reparations at approximately EUR 52,429,000.24

B. Proceedings before the Appeals Chamber

On 4 March 2024, the Appeals Chamber appointed Judge Luz del Carmen Ibáñez
Carranza as the Presiding Judge in the present appeal.25

On 12 March 2024, the Presidency assigned Judge Tomoko Akane and

Judge Erdenebalsuren Damdin to the Appeals Division.26

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
Decision and a request for suspensive effect thereof.28

On 16 May 2024, having received submissions and observations on the Defence’s

request,29 the Appeals Chamber rejected the request for suspensive effect and invited
the TFV and the Registry to adopt certain measures for the continuing implementation
of the Impugned Decision.30

On 12 July 2024, the Appeals Chamber reassigned the role of Presiding Judge to
Judge Solomy Balungi Bossa.31

On 17 July 2024, the Defence submitted its Appeal Brief with four annexes.32

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.
29
Registry’s Submissions on Defence’s Request for Suspensive Effect; TFV’s Observations on
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.
30
Decision on Defence’s Request for Suspensive Effect.
31
Decision Replacing the Presiding Judge of the Appeals Chamber.
32
Appeal Brief.

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On 23 August 2024 and 26 August 2024, Victims Group 133 and Victims
Group 234 filed their respective responses to the Appeal Brief.

On 17 September 2024, with the leave of the Appeals Chamber,35 the TFV
submitted its observations on the Appeal Brief.36

On 27 September 2024, the Defence filed its response to the TFV’s

Observations.37

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

33
Victims Group 1’s Response.
34
Victims Group 2’s Response.
35
Decision on the TFV’s Request for Leave to Make Observations.
36
TFV’s Observations.
37
Defence’s Response to TFV’s Observations.
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
standard of proof of a balance of probabilities.40 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
the Statute.41 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
to the present reparation proceedings.42

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
rendered.43

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
nature of the decision in question.44

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
the alleged error and explain how the trial chamber erred.45

V. PRELIMINARY ISSUE
The Defence listed 15 grounds of appeal in its Notice of Appeal. 46 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.
48
Victims Group 2’s Response, 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
Sample,50 which affected the Defence’s ability to assess their applications.51 The
Defence argues that there were no credible instances of threats to victims and that
redactions to their applications were thus unnecessary.52

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
exceptionally when no agreement can be reached.53

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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Sample.54 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
could only be verified if their names were provided to the Defence.55 It also submitted
that there was “no objectively justifiable risk” to the victims concerned, as there had
not been a single incident of interference.56

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’
names unduly affected its ability to review and comment on the Sample.58

Subsequently, the Defence requested the lifting of redactions with respect to

13 victims.59 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
in the [Decision on Request for the Lifting of Redactions]”.60

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

54
Defence’s Request for the Lifting of Redactions, paras 1, 12, 24.
55
Defence’s Request for the Lifting of Redactions, paras 20-21.
56
Defence’s Request for the Lifting of Redactions, 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.
59
Defence’s Second Request for the Lifting of Redactions, 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
disclosure of the names of the potential beneficiaries in the Sample.65 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”
country.67 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
the Defence to review the relevant applications.68

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
Sample and the Decision on Request for the Lifting of Redactions.69 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
not to appeal that decision.71 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
reparations.72 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.
69
Victims Group 1’s Response, paras 18-19.
70
Victims Group 1’s Response, paras 20-23.
71
Victims Group 2’s Response, para. 31.
72
Victims Group 2’s Response, para. 29.

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information”.73 Victims Group 2 submit that the redactions authorised by the Trial
Chamber are necessary as victims continue to live in fear of reprisals.74

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
Redactions.75 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
prejudicial to the Defence”.76 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
causal link”.77 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
Sample, as the Defence chose not to appeal that decision.79 According to Victims
Group 2, the issue the Defence has raised in this regard concerns the requirement that

73
Victims Group 2’s Response, para. 30.
74
Victims Group 2’s Response, para. 32.
75
Victims Group 1’s Response, 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.
79
Victims Group 2’s Response, para. 31.

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the Defence should communicate its objections to redactions directly to the VPRS.80
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
their advice”.81 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
Sample prevents it from raising issues with respect to that decision,84 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

80
Victims Group 2’s Response, para. 31 (“As regards the redactions in the applications included in the
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
whether, in reality, its non-disclosure affects the convicted person’s rights.88

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
the 13 persons89 with respect to whom the Defence had sought the disclosure of
names.90 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
the disclosure of the names of 13 persons.91 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
Request for the Lifting of Redactions,92 clearly indicates that the Defence was able to
make its observations on their dossiers.93 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.
91
Defence’s Second Request for the Lifting of Redactions, 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
been redacted”.96 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
benefit from reparations98 and “[elaborate] on the relevant evidentiary criteria”.99 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 ex aequo et bono” amount to each victim.102 The
purpose for which the information contained in the victims’ dossiers was relied upon
was thus a relevant consideration.103

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
against him”.104

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
conduct a proper investigation”,106 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.
107
Defence’s Submissions of 19 May 2023, 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
person concerned”.110

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
members upon his return after serving the sentence”.111 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
renounced rebellion or fighting and accordingly still pose threats”.112 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
ha[d] been in fact able to review and comment on some of the victims’ eligibility”.113
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.
112
Victims Group 1’s Submissions of 11 April 2023, 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.

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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
Decision.115 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
fairness to the victims and Mr Ongwen.116

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
21 February 2023.117 According to the Defence, by this decision, the High Court of
Uganda awarded compensation to former owners of property on which many IDP
camps, including Abok IDP camp, were located from 2003 to 2007.118 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
proceedings do not impact reparations before the Court”.122

115
Appeal Brief, paras 20, 22, 27, 29.
116
Appeal Brief, paras 20, 26, 28-29.
117
Defence’s Submissions of 22 March 2023, para. 17.
118
Defence’s Submissions of 22 March 2023, para. 17.
119
Defence’s Submissions of 22 March 2023, para. 17.
120
Defence’s Notification of 24 October 2023, paras 12-13; Annex A to Defence’s Notification of
24 October 2023.
121
Defence’s Notification of 24 October 2023, 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
potentially concern victims from the IDP camp in Abok.123 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
reparations accordingly to ensure fairness to the victims and Mr Ongwen”.125 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
liability.127

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
Decision.129 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.
128
Victims Group 1’s Response, paras 26-28.
129
Victims Group 1’s Response, paras 28-29.
130
Victims Group 1’s Response, 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
findings in the Impugned Decision.132 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
submissions.134

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
rights of victims under national or international law”.136 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

131
Victims Group 2’s Response, para. 45.
132
Victims Group 2’s Response, para. 36.
133
Victims Group 2’s Response, para. 37, referring to Lubanga Amended Reparation Order, para. 9.
134
Victims Group 2’s Response, 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
pursuant to other treaties or domestic legislation”.139 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
proceedings.140 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.
140
Appeal Brief, para. 28; see also para. 27 (“it was desirable that the [Trial] Chamber investigates about
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
resulted from the crimes in question”.145 Even in cases where other individuals may
also have contributed to the harm, “it is not, per se, inappropriate to hold the person
liable for the full amount necessary to repair the harm”.146

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
investigate and adjust the reparations accordingly”147 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
under domestic law or international human rights law”.149 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
guarantee that reparations are not applied unfairly or in discriminatory manner”.151
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
participating in the reparation proceedings before the Court,152 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
is very common for several individuals to share the same name in Northern Uganda.155
The Appeals Chamber also notes that the plaintiffs in the aforementioned case before
the High Court of Uganda are the owners of the land on which IDP camps were set.156
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.

153
Victims Group 1’s Response, 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).
155
Victims Group 2’s Response, 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
persecution.158

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
Chamber adopted separate presumptions concerning victimhood and harm.159

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
the underlying act of attack against the civilian population as such.160

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
would have, as a result, suffered […] from the attacks”.161

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]
the underlying acts of attack against the civilian population as such.162

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
moral harm as a result of the attacks”.163

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
Appeals Chamber to overturn this “presumption of harm”.164 It avers that “[r]esidents
of an IDP camp who were not present for the attack should not be presumed victims”,
as “one cannot be attacked if he or she is not present”.165 Similarly, it submits that
persons who were present in one of the four IDP camps during the attack but did not
have any interactions with the LRA or the UPDF should not be presumed victims.166
The Defence contends that, in both scenarios, if such persons “cannot prove some other
harm, they should not be eligible for reparations”.167

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
present during the attacks.168 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
dynamic and circumstances”.169 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
committed any error.171 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.
168
Victims Group 1’s Response, para. 31; see also para. 34.
169
Victims Group 1’s Response, para. 35.
170
Victims Group 1’s Response, para. 36.
171
Victims Group 2’s Response, 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
the attack, regardless of whether they were physically or financially harmed”.173
Victims Group 2 submit that the presumptions adopted by the Trial Chamber are
therefore “the most logical” in the circumstances of this case.174

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
persecution through the underlying act of an attack against the civilian population.175

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
resident of or physically present in one of the camps at the time of the attacks”.177 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

172
Victims Group 2’s Response, para. 47.
173
Victims Group 2’s Response, para. 48.
174
Victims Group 2’s Response, 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
camps, but simply that the residents were in fact residing in the targeted camps”.180 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,
suffered all the same from the attacks themselves”.181 In making this finding, it relied
upon the Conviction Decision which “highlighted the densely populated nature of the
IDP camps, with houses often being built less than a metre apart”.182 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
to 30,000 in the Pajule IDP camp,183 between 2,000 and 3,000 in the Odek IDP camp,184
“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
and access to water and adequate health facilities”.188

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
the Trial Chamber.189 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.
189
Impugned Decision, para. 160. See also Defence’s Submissions of 7 March 2022, 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
presumption.191

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
attack”.192 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
sort of harm”.193

The Appeals Chamber notes in this regard that the Trial Chamber clearly
considered victimhood and harm as two distinct elements of a reparation order.194
Accordingly, the Trial Chamber discussed the aforementioned presumption of

190
Defence’s Submissions of 22 March 2023, para. 19.
191
See Sentencing Appeal Judgment, para. 108; Ongwen OA3 Judgment, para. 45. See also Blaškić
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
which Mr Ongwen was convicted”.197 By contrast, the said presumption of harm relates
to the requirement that “the person [must] [establish], on a balance of probabilities, the
existence of the alleged harm”.198 The Trial Chamber makes it clear that both these
requirements must be met in order for a person to be eligible to benefit from
reparations.199

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
from the above-mentioned presumption of moral harm.200 By contrast, “individuals
who were not present and did not personally experience the attacks” will not benefit
from that presumption of harm.201 Rather, they will “have to demonstrate, at the
required balance of probabilities threshold, that they suffered moral harm as a result of
the attacks”.202

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
presumed victims.204

In addition to the aforementioned residents of the four IDP camps, the

presumption of victimhood adopted by the Trial Chamber applies to “individuals who
were present in […] the four IDP camps at the time of the attacks on said camps”.205 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
relied to support the presumption of victimhood in this respect.207

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.

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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
demonstrated […] to have suffered moral harm”.208 The Trial Chamber considered that
“it is inherent to human nature that all those subjected to brutal acts […] experience
intense suffering, anguish, terror and insecurity”.209

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
presumed victims”, without engaging with any of the foregoing considerations.210
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.

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regulation 58(2) of the Regulations and reminds the Defence of its duty to comply, at
all times, with the procedural regime applicable before the Court.211 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
liability.212

1. Relevant part of the Impugned Decision

The Trial Chamber recognised “the family members of direct victims” as a
category of indirect victims.213 The Trial Chamber noted that “due regard ought to be
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
traditional rituals and customs that are culturally important to them”.216

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
soldiers suffered moral harm which includes “spiritual disturbances”.218

2. Summary of the submissions

a. Defence’s submissions
The Defence submits that the Trial Chamber erred in law by failing to provide a
reasoned opinion with respect to the concept of the “African extended family”,219 and
in fact by applying its “overly broad” understanding of the concept in its determination
concerning indirect victims of the attacks.220 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
their relevance.222 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
different regions in [N]orthern Uganda”.224

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.

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and not indirect victims in general.225 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
suffered harm on a balance of probabilities as result of the crime on the direct victim”.226
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
of the Appeals Chamber.227

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
to substantiate its argument,229 and that the Trial Chamber’s findings relating to moral
harm suffered by victims are based on the relevant findings in the Conviction Decision
and the evidence from the trial proceedings.230

c. Victims Group 2’s submissions

Victims Group 2 submit that these grounds of appeal “should be dismissed” for
the following reasons.231 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
is inconsistent with the evidence in the case record;232 (ii) the particularities of the
Acholi culture were addressed at trial;233 and (iii) whichever concept of family the Trial
Chamber adopted, it had no major consequences on the number of indirect victims.234

In respect of the relevance of the Acholi traditional and cultural mechanisms,

Victims Group 2 argue that the Defence misrepresents the Impugned Decision, merely

225
Victims Group 1’s Response, para. 39.
226
Victims Group 1’s Response, paras 40, 44.
227
Victims Group 1’s Response, para. 45.
228
Victims Group 1’s Response, para. 48.
229
Victims Group 1’s Response, para. 50.
230
Victims Group 1’s Response, para. 49.
231
Victims Group 2’s Response, paras 45, 56, 73.
232
Victims Group 2’s Response, paras 49-50.
233
Victims Group 2’s Response, para. 51.
234
Victims Group 2’s Response, para. 51.

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disagrees with the Trial Chamber’s conclusions and attempts to re-litigate the issues
that have already been considered by the Trial Chamber.235 Concerning the alleged
mischaracterisation of cen, Victims Group 2 aver that the Defence seeks to reverse the
factual findings of the Trial Chamber that have already been confirmed on appeal.236
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
consequence of the crimes of which Mr Ongwen was convicted.237

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
recognise.239 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 Contrary to the Defence’s contention,242 the finding
in the Conviction Decision, to which the Trial Chamber referred, was supported by the
evidence on the record of this case.243 Moreover, the Trial Chamber took into account

235
Victims Group 2’s Response, para. 40.
236
Victims Group 2’s Response, para. 66.
237
Victims Group 2’s Response, 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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the relevant submissions of the parties and the participants,244 as well as previous
jurisprudence of the Court.245

Regarding the Defence’s argument that the Trial Chamber ought to have sought
expert evidence on the concept of extended family,246 the Appeals Chamber notes that
the Defence did not request the Trial Chamber to seek such evidence.247 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
personal harm and a causal link,248 while pointing out that “it is not relevant whether
the family member is close or distant to the direct victim in the abstract”.249 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
case at hand,250 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
based on a broad definition”.251 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.
247
See Defence’s Submissions of 7 March 2022, paras 44-47; Defence’s Submissions of 19 May 2023,
paras 17-18.
248
Impugned Decision, paras 128, 132.
249
Impugned Decision, para. 132.
250
Appeal Brief, paras 40, 42, 54, 65.
251
Impugned Decision, para. 130, referring to Defence’s Submissions of 7 March 2022, 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
noted above.254

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
Mr Ongwen was convicted.255 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.
256
Impugned Decision, para. 486, referring to Defence’s Submissions of 19 May 2023, 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
Defence support the point which the Defence seems to be making.259 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
insufficient with regard to family members outside of the nuclear family.260 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
as to the number of indirect victims.262 In relation to the Trial Chamber’s determination
on presumption of harm with respect to all residents and non-residents who were
present at the four IDP camps during the attacks,263 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
which Mr Ongwen was convicted.264 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.
261
Defence’s Submissions of 19 May 2023, 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
between their harm and the crimes.266 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
members of a family living within the same household”.267 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
attacks”.268 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
this regard.269

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
a balance of probabilities”.271 Therefore, to the extent that the Defence may be
understood to argue that the Trial Chamber’s consideration of the concept of extended
family expanded its estimation of the number of indirect victims of the attacks, 272 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
resulting from the crimes of which Mr Ongwen was convicted.273

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
mato oput practices.274 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
oput.275 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
framework of the Court’”.276 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
framework has no bearing on complementarity […] matters.277

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.
275
See Sentencing Decision, paras 15-23, 25-43; Defence’s Sentencing Brief, 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.

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mechanisms […] for cen spirit possessions”.278 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
as, inter alia, “reconciliation and cleansing ceremonies”.283 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
costs of the symbolic measures provided by ARLPI.285 Therefore, it is clear from the

278
Appeal Brief, para. 59.
279
ARLPI’s Observations of 30 November 2021, pp. 11, 13; Impugned Decision, paras 607, 635.
280
Impugned Decision, paras 766, 791, referring to Defence’s Submissions of 7 March 2022, para. 26.
281
Impugned Decision, para. 635.
282
Impugned Decision, para. 635.
283
Impugned Decision, para. 635, referring to, inter alia, ARLPI’s Observations of 30 November 2021,
pp. 9-12.
284
Impugned Decision, para. 635.
285
Impugned Decision, paras 766, 791, referring to ARLPI’s Observations of 30 November 2021,
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
crimes of pillaging and destruction of property,286 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,
recalling its relevant finding in the Conviction Decision,287 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
persons.289 The Trial Chamber considered “evidence about how the failure to bury
family members in accordance with rituals may result in […] ‘cen’”.290 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.
291
See Notice of Appeal, para. 24; Appeal Brief, p. 13, heading F (“Ground 12: Trial Chamber IX erred
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” cen.293 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
long-lasting consequences.295 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
from its assessment of the Sample.296 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

292
See Appeal Brief, paras 55 (“The Chamber determined […] that victims suffered from a phenomenon
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’
into the household, and that it would harm family members.297

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
for the harm suffered.298 The Defence argues that the Trial Chamber acted ultra vires,
as such an award is not provided in the Statute or the Rules.299

1. Relevant part of the Impugned Decision

The Trial Chamber determined that it would be “appropriate for each eligible
direct and indirect victim in the case to receive a symbolic award of [EUR 750]”.300 In
reaching this determination the Trial Chamber took into consideration: (i) that most
victims had expressed a preference to receive a monetary award;301 (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).
301
Impugned Decision, para. 622. The Trial Chamber referred in particular to the victims’ expectations
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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victims;302 (iii) the time for rehabilitation programmes to commence;303 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
the harm, as it was, at least in part, in the Katanga case”.305 The Trial Chamber also
considered that the symbolic payment awarded in this case is not a form of individual
reparations, but part of collective community-based reparations.306

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
reference.307 It made a number of adjustments in light of the circumstances of the
present case.308 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
award.309

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
rule 94(1)(d)-(f) of the Rules.310 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.
306
Impugned Decision, para. 631. In taking this approach, the Trial Chamber rejected the TFV’s
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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or compensation, contrary to the purposes of article 75 of the Statute.312 It requests the

Appeals Chamber to reverse the symbolic reparation award of EUR 750 per victim.313

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
award as a form of reparation”.316

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
appropriate and in line with the prior jurisprudence of the Court.317 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
such payment must be considered as a compensation”.318

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
allow types of reparations other than restitution, compensation and rehabilitation.319 It
further argues that “other forms of remedy” referred to in rule 94(1)(f) of the Rules are
limited to forms of rehabilitation and do not include a symbolic cash award.320

312
Appeal Brief, para. 74; Defence’s Response to TFV’s Observations, paras 13-16.
313
Appeal Brief, para. 75.
314
Victims Group 1’s Response, para. 54.
315
Victims Group 1’s Response, para. 55.
316
Victims Group 2’s Response, para. 61.
317
TFV’s Observations, paras 18-20.
318
TFV’s Observations, para. 20, referring to Lubanga A7 A8 Judgment, para. 40.
319
Appeal Brief, paras 67-68, 73, 75.
320
Appeal Brief, para. 69, referring to Lubanga Reparation Decision, para. 233 (“Rehabilitation shall
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,
including restitution, compensation and rehabilitation”.321 The Appeals Chamber
agrees with Victims Group 2 that this phrase should not be understood as exhaustive.322

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
reparations: a description of items for restitution,323 “[c]laims for compensation”,324 and
“[c]laims for rehabilitation and other forms of remedy”.325 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).
322
Victims Group 2’s Response, 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.
326
Victims Group 2’s Response, 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
statement.331

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
victim, but Trial Chamber II increased the amount to USD 250.332 It argues that the
appeal against the Katanga Reparation Order concerned Trial Chamber II’s decision to
increase the amount of the symbolic award, rather than the legality of such an award.333
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.
331
Appeal Brief, para. 74; Defence’s Response to TFV’s Observations, 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
commemorations and tributes, may also contribute to the process of rehabilitation”.336
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
Trial Chamber I.337

Moreover, the Appeals Chamber previously determined that “collective

reparations can include the payment of sums of money to individuals to repair harm
suffered”.338 However, as noted by the TFV,339 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
at hand”.341 Moreover, the determination of what is an appropriate modality of
reparations must be grounded in the determination of the harms caused.342 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.
339
TFV’s Observations, 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
[of reparations] for repairing the harm caused”.343

The Appeals Chamber further notes that both Victims Group 2344 and the
Defence345 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 Katanga Reparation Order,346 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
are the basis for any reparation order.347 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
Chamber adopted the principles set out in the Ntaganda Reparation Order,348 with some
amendment to, among others, the principle on types and modalities of reparations.349
The Trial Chamber specifically held that “payments that are not proportional and
appropriate to address the harm can only be regarded as symbolic”.350 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.
344
Victims Group 2’s Response, 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
reparations.351

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
funds, this result is feasible”.352

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
of SGBC and their children);353 (ii) the submissions of Victims Group 1 requesting a
symbolic award of USD 1,429;354 (iii) the submissions of Victims Group 2 requesting
individual reparations and arguing that the symbolic payment suggested by the TFV
would be modest and its impact limited, leading to tensions in the community;355 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).
353
Impugned Decision, para. 593, referring to TFV’s Observations of 6 December 2021, para. 111.
354
Impugned Decision, para. 590, referring to Victims Group 1’s Submissions of 7 February 2022,
para. 33.
355
Impugned Decision, para. 593, referring to Victims Group 2’s Submissions of 7 March 2022, 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
determine exact amounts per victim.356

The Trial Chamber also noted that a large number of victims were “likely to have
suffered extensive multi-layered harms”,357 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
implemented”360 “for approximately 49,772 victims” in this case.361 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
eligibility to receive such an award or on its amount,363 the Trial Chamber still awarded
a modality of reparations that, albeit collective, may already help individual victims
address some of their immediate needs arising out of the harm they suffered.364 The
Appeals Chamber agrees with the TFV365 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.
365
TFV’s Observations, para. 19, referring to Impugned Decision, para. 620.
366
Impugned Decision, para. 624.

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the relevant programmes to commence;367 (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
consultations required” for the collective community-based reparations;368 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
the aforesaid principle on modalities of reparations,370 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
by prioritising participating direct victims over non-participating direct victims.371

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
received reparations.373

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
participation forms before the deadline set by [the] Trial Chamber”.375 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.
377
Victims Group 1’s Response, para. 60.
378
Victims Group 1’s Response, para. 61.
379
Victims Group 2’s Response, para. 62.
380
Victims Group 2’s Response, 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
prioritising participating direct victims over non-participating direct victims.383 The
Appeals Chamber notes at the outset that, as observed by the TFV,384 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 eligible for reparations”.386
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
receive any reparations […] as a matter of priority”.387 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
alone,388 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

381
TFV’s Observations, para. 24.
382
Defence’s Response to TFV’s Observations, paras 18-21.
383
Appeal Brief, paras 76-87.
384
TFV’s Observations, 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
and partially completed”.391 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
prioritised victims primarily based on their vulnerability and needs,393 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).
391
Victims Group 2’s Response, para. 64.
392
Appeal Brief, para. 76.
393
Impugned Decision, paras 655-662.

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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
medical documentation to prove their disabilities.394

1. Relevant part of the Impugned Decision

In the Impugned Decision, the Trial Chamber considered the issue of availability
of supporting documentation.395 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
of their claims”.396

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
submission regarding the Two Victims’ failure to provide medical reports.397 Having
regard to the aforementioned difficulties, which the victims had in obtaining additional
documentary evidence in support of their claims,398 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
Victims.400 The Trial Chamber rejected the Defence’s objections to the lack of medical
documentation to support the two applications.401

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
requests for medical documentation from the Two Victims,402 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
produced.405 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
harm caused by the crime, the victim applicant must produce said documentation”.406

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
erred in this regard.408

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
nature.410 Victims Group 2 aver that the alleged error “cannot meaningfully impact” the
overall estimated number of beneficiaries.411

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.
407
Victims Group 1’s Response, para. 65.
408
Victims Group 1’s Response, para. 66.
409
Victims Group 2’s Response, paras 33-34.
410
Victims Group 2’s Response, para. 33.
411
Victims Group 2’s Response, 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
documentation.413 However, as noted by the Trial Chamber, the Defence did not
contest the victims’ representatives submissions regarding the lack of supporting
documentation.414

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
respect to the Two Victims,415 whereas as many as 49 persons alleged to have suffered
harm as a result of physical injuries.416

The Trial Chamber found that each of the Two Victims suffered physical harm
after having fallen during the attack.417 The Appeals Chamber notes that the Two
Victims, in their applications, make no mention of either of them having received
assistance from a medical professional.418 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
documentation, as acknowledged by the Trial Chamber.419 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
consistency with the Conviction Decision and the accounts of other victims.420

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

413
Victims’ Joint Submissions of 17 April 2023, para. 16. See also paragraph 224 below.
414
Impugned Decision, para. 442.
415
Defence’s Submissions of 19 May 2023, 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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their claims with medical documentation.421 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
fact in its estimation of the number of victims of SGBC and child soldiers,422 by failing
to take into account that Mr Ongwen was not the commander of the Sinia brigade for
47.62% of the temporal scope of the case.423 According to the Defence, the Trial
Chamber’s error significantly increased the estimated number of victims of the thematic
crimes and, in turn, the amount of reparations imposed on Mr Ongwen.424

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,
in accordance with the jurisprudence of the Court.425 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
Decision] and [Sentencing Decision].426

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
applicable to reparations proceedings.427

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
brigade,428 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
1 July 2002 and 31 December 2005”, and dismissed the Defence’s argument.429

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
of the case”,430 as he was appointed the commander of the brigade on 4 March 2004.431
It contends that the Trial Chamber’s error resulted in “a significant increase in the
amount of reparations owed by Mr Ongwen”.432 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
Sinia brigade in relation to the temporal scope of the case.434 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
Conviction Decision as evidence.435 Victims Group 1 aver that, in light of the clear

427
Impugned Decision, para. 21.
428
Impugned Decision, para. 734, referring to Defence’s Submissions of 17 February 2023, 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.
434
Victims Group 1’s Response, para. 69.
435
Victims Group 1’s Response, 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
Defence fails to identify the alleged error.436

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
1 July 2002.439

The Appeals Chamber notes that, as correctly observed by Victims Group 1 and
Victims Group 2,440 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
1 July 2002 to 31 December 2005,441 the Defence’s present argument, in fact, attempts
to challenge, once more, the scope of Mr Ongwen’s conviction in this regard.442

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

436
Victims Group 1’s Response, paras 71-72.
437
Victims Group 2’s Response, para. 52, referring to Impugned Decision, para. 734.
438
Appeal Brief, paras 100, 107.
439
Appeal Brief, para. 102.
440
Victims Group 1’s Response, para. 67; Victims Group 2’s Response, para. 52.
441
See Appeal Brief, para. 103.
442
Appeal Brief, paras 100, 107.

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and 31 December 2005 in Northern Uganda”,443 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
formal positions within the Sinia brigade.445 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
was promoted to the rank of lieutenant colonel.446

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
of 15 years and for forced marriage prior to 4 March 2004.447 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
responsibility in this context.449

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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and 31 December 2005”.450 Moreover, as the Trial Chamber correctly noted,451 “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
2003.454 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.

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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
fact in its estimation of the number of victims of SGBC and child soldiers,458 by failing
to take into consideration that there were five, rather than four, LRA operational units,
including Control Altar.459 According to the Defence, the Trial Chamber’s error
significantly increased the estimated number of victims of the thematic crimes and
Mr Ongwen’s liability.460

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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period relevant to the charges in this case,461 the Trial Chamber dismissed the Defence’s
arguments, recalling the relevant findings in the Conviction Decision and its overall
conclusion that the LRA was divided into four brigades.462

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
crimes attributed to Mr Ongwen.464 According to the Defence, the Trial Chamber’s
failure in this respect significantly increased the estimated number of victims of those
crimes.465 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
the Sentencing Decision.468

461
Impugned Decision, para. 734, referring to Defence’s Submissions of 17 February 2023, 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).
467
Victims Group 1’s Response, para. 76.
468
Victims Group 2’s Response, 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

Similar to its submissions under the eighth ground of appeal, 470 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
that that ruling deals with that issue raised on appeal.471 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
noted by the Trial Chamber,473 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.
472
Impugned Decision, para. 734, referring to Defence’s Submissions of 17 February 2023, 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
the Confirmation Decision.478 However, the Appeals Chamber recalls that the factual
findings in the Conviction Decision upon which the Trial Chamber relied have been
established beyond reasonable doubt,479 which is a different and higher standard of
proof than that required for a pre-trial chamber’s issuance of a warrant of arrest 480 and
confirmation of charges.481 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,
psychological and/or psychiatric evidence483 and/or the examination of at least some of
the victims in the Sample by an expert psychiatrist or psychologist.484 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

of the LRA.485

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
mental disease or defect.488 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,
psychosocial harm, and loss of life plan”.490 In concluding that the victims of the present
case experienced moral harm,491 the Trial Chamber relied upon, inter alia, the findings
in the Conviction Decision and the Sentencing Decision that some victims were forced
to kill people492 and others were forced to watch someone being killed.493 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
by such experience.494

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
crimes for which Mr Ongwen was convicted”;495 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,
to the requisite standard of proof, to have suffered moral harm.497

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
insecurity’”.498 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
their victimhood has been established on a balance of probabilities”.499 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
attacks”.500

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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soldiers.501 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
ascertained by medical, psychological and/or psychiatric evidence.504 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
in the Sample by an expert psychiatrist or psychologist.505 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
of the LRA.506 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
Conviction Decision.507

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
Decision;508 (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
Mr Ongwen is unsupported by the Statute or any other law.510

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.
508
Victims Group 1’s Response, para. 79.
509
Victims Group 1’s Response, para. 80.
510
Victims Group 1’s Response, para. 84.

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Victims Group 2 submit that the Defence seeks to reverse factual findings made
in the Conviction Decision and the Sentencing Decision, and confirmed on appeal.511
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
traumas were considered are distinct,512 and victims do not seek to establish that they
suffer from mental health disorders, but to demonstrate that they suffer psychological
harm.513 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
determine whether victims suffered moral harm,515 the Trial Chamber ought to have
required medical, psychological and/or psychiatric evidence516 and/or the examination
of at least some of the victims in the Sample by an expert psychiatrist or psychologist.517

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
and victims of the attacks.518 In its submissions before the Trial Chamber, the Defence
addressed a number of the arguments made by the victims, but not these specific
arguments.519

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

511
Victims Group 2’s Response, paras 66, 72.
512
Victims Group 2’s Response, paras 68-70.
513
Victims Group 2’s Response, para. 71.
514
Victims Group 2’s Response, para. 72.
515
Appeal Brief, para. 124.
516
Appeal Brief, paras 125-126, 143.
517
Appeal Brief, paras 133-136.
518
Victims Group 1’s Submissions of 6 December 2021, paras 51-54; Victims Group 2’s Submissions
of 6 December 2021, paras 63, 66.
519
See Defence’s Submissions of 7 March 2022, 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
psychological examination should have been required.521 In fact, the Defence stated
that it did not contest those applications.522

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
regard.523 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
the age of nine, while addressing such victimhood with respect to victims of the LRA,524
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

520
Victims’ Joint Submissions of 17 April 2023, para. 17.
521
See, for example, Confidential ex parte Annex I to Impugned Decision, paras 650, 660, 676, 879,
1225, 2973, 2986.
522
Defence’s Submissions of 19 May 2023, 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.
525
Defence’s Submissions of 6 December 2021, paras 31-36.

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own abduction was not relevant to the charges against him and noting that “he
committed the relevant crimes when he was a fully responsible adult”.526

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
chamber, to the extent that that ruling deals with that issue raised on appeal.527
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
the Statute was applicable.528 Similarly, the Trial Chamber examined the issue of
whether duress as a ground excluding criminal responsibility under article 31(1)(d) of
the Statute applied.529 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
responsibility expressly regulated under the Statute.530

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
between the harm they suffered and the crimes of which Mr Ongwen was convicted.531

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
disease or defect”.532 By contrast, in the present reparations proceedings, the Trial
Chamber defined moral harm as including “psychological harm or trauma, mental pain
and anguish, emotional distress, psychosocial harm, and loss of life plan”.533 Under
such a definition of moral harm, it was not necessary for the Trial Chamber, as correctly
observed by Victims Group 2,534 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
Decision that child soldiering may have long-lasting consequences.535 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
soldiers endured long-lasting consequences of the moral harm they suffered.537

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.
534
Victims Group 2’s Response, para. 71.
535
Appeal Brief, paras 137-139.
536
Conviction Decision, para. 612.
537
Impugned Decision, paras 369, 550.

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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
Decision,538 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
was convicted.539 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
in the extremely violent environment of the LRA”.540 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).

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(hereinafter: “Four Victims”),542 because it did not meet the standard of balance of
probabilities,543 and violated Mr Ongwen’s fair trial rights.544

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
(Counts 61 to 68).545

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
comment on the Sample.546 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
on Request for the Lifting of Redactions]”.547

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
individuals in the Sample who were victims of the same crimes.548 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
of which Mr Ongwen was convicted.549

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
victims.550 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
meet the standard of balance of probabilities.551 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
a/07032/15 and victim a/07053/15;554 (ii) order the Trial Chamber to lift redactions to
the applications of victim a/07090/15 and victim a/07093/15;555 and (iii) order the Trial
Chamber to review and adjust the estimated number of victims of thematic crimes.556

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.
557
Victims Group 1’s Response, paras 86, 107.
558
Victims Group 2’s Response, paras 76-77.

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of the Defence’s relevant submissions and unredacted information provided by these

victims against the balance of probabilities standard.559

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
its submission.560 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
occurred at different times.562 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”
for members of the Sinia brigade who were in this particular area to abduct girls.563 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

559
Victims Group 2’s Response, 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.

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victim, the relevant findings in the Conviction Decision and the joint submissions of
victims, as well as the relevant submissions of the Defence.564

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
perpetrated by him provided that the facts occurred within the Sinia brigade.568 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,
Trinkle or Stockree Brigades, [given that] Gilva sickbay was operating” in the area.571
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.
565
Confidential ex parte Annex I to Impugned Decision, para. 2850, referring to Defence’s Submissions
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
brigade who did not participate in the attack on Odek IDP camp, 572 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
“part of the Sinia brigade”.573 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
submissions of the Defence.575

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.

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“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
sexual intercourse.578

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
abducted by every brigade in the LRA”.579 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”
to verify and determine coherency of all information provided by the victims.580

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

577
See Defence’s Submissions of 19 May 2023, 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
dossiers of victim a/07090/15 and victim a/07093/15.581

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
In reaching its conclusion to dismiss these arguments of the Defence,585 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
dossiers.586 It concluded that the redactions in the dossier of victim a/07090/15 were
not prejudicial to the Defence,587 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
redactions.589

In relation to the Defence’s claim that Mr Ongwen is “the best person in the case”
to verify and determine coherency of all information provided by the victims,590 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.
583
Confidential ex parte Annex I to Impugned Decision, paras 2918, 2924, referring to Defence’s
Submissions of 19 May 2023, paras 98-99. See also Appeal Brief, para. 152.
584
Confidential ex parte Annex I to Impugned Decision, paras 2934, 2940, referring to Defence’s
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
victims of the same crimes.591

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
review and adjustment of the estimated number of victims of thematic crimes,593 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
confirm, reverse or amend a reparation order.594 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

 ICC-02/04-01/15-2108 07-04-2025 90/90 A A3

Done in both English and French, the English version being authoritative.

_____________________________
Judge Solomy Balungi Bossa
Presiding

_____________________________ _____________________________
Judge Tomoko Akane Judge Luz del Carmen Ibáñez Carranza

_____________________________ _____________________________
Judge Gocha Lordkipanidze Judge Erdenebalsuren Damdin

Dated this 7th day of April 2025

At The Hague, The Netherlands

No: ICC-02/04-01/15 A3 90/90