The protection of the environment is currently of the uppermost importance and all legal fields have to contribute to this goal. This includes criminal law, both on a national and an international level. The debate in international criminal law focusses on a proposal to introduce a new core crime of “ecocide” to the Rome Statute. Much has been contributed to this debate, and often the ultima ratio approach has been mentioned in this context. However, the contents of this principle remain vague. In my article, I assess the ultima ratio principle for international criminal law and apply it to the discussion about the introduction of a new core crime of ecocide to the Rome Statute. My assessment reveals that under the current circumstances, this cannot be considered a good fit. Rather, alternatives exist that are to be expected to serve the urgent interest of protecting the natural environment better.
By definition, criminal trials are set to determine the guilt or innocence of the accused. In this process, judges are tasked with assessing not only evidence that presents itself in quantifiable forms, but also as personal experiences. In the case of Dominic Ongwen, a former child soldier and commander of the Lord’s Resistance Army (lra), the issue of spiritualism played a significant role, particularly in relation to the affirmative defences of mental incapacity and duress. Assessing such culturally charged evidence, inherently interconnected to local beliefs, through the lens of an international criminal law trial raises a number of challenges. In the construction of the legal truth, such immaterial evidence undergoes a process through which only certain elements, which are deemed relevant in light of specific arguments, are ultimately selected, filtered through the legal framework, contested by the parties and ultimately decided upon by the judges. Spiritual beliefs therefore become patterns, and patterns become certainties. Based on an in-depth analysis of 408 trial transcripts, along with main submissions and decisions, this article sheds light into how framing spiritualism according to the criteria laid out in the Rome Statute has played out in the trial of Dominic Ongwen. It maps the way in which cultural concepts related to spirituality have been introduced into the trial, by which parties and for what purpose. It also looks at how the system of spiritual powers guiding the lra and its fighters was assessed by the judges and potentially why.
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