Marina Fortuna, based on an interview with Prof. Joop de Jong
Following up from a previous discussion on the psychological assessment of the defendant in the Ongwen case, this blog post shares the observations of Prof. Joop de Jong, one of the mental health professionals who assessed Dominic Ongwen’s mental state. Prof. de Jong identified three main challenges posed by the case, which may come up in the International Criminal Court’s (ICC) future case law: (1) the impact of the cultural beliefs on the determination of the Defendant’s mental health, (2) the selection of mental health experts and the ways in which the reports of the experts can be challenged and (3) the problem of reaching the conclusion on the mental health state at the time of the commission of the crimes.
According to Prof. de Jong, the central question raised by the Ongwen case is whether or not, and, if so, to what extent, cultural elements should be decisive for reaching a conclusion on the mental health state of a defendant. One of the submissions of the defence during the trial was that Ongwen’s acts were, at least in part, motivated by his spiritual beliefs as a member of a possession cult that later developed into a prophetic political movement. About fourteen years ago, Prof. de Jong interviewed child soldiers in Northern Uganda, who asserted that Kony hears everything they discuss with him. This belief is common among members of the Lord Resistance Army (LRA), and, from a historical standpoint, can be taken as a legacy of the import of Christianity by the colonial powers. If these kinds of beliefs form part of a person’s internal reality, the question then is the degree to which the ICC should take culture into account, and what role it assigns to psychology and psychiatry in this context (needless to say, this raises the question of how guilt versus innocence is to be evaluated).
Prof. de Jong’s viewpoint is that it is difficult to divorce culture from psychology. He puts forward a compelling example:
“Assume we take a ‘neutral’, ‘universalistic’ psychiatrist to assess Jesus ‘without the burden of cultural expertise’, as happened with several experts in the Ongwen case. The psychiatrist clearly sees a man with a megalomanic delusion because he claims to be the son of God. He also sees a man with a narcissistic antisocial personality because he was believed to incite his people to commit genocide in his name, for example during the Crusades. In a way, that is what the Court does when it thinks you can take the ‘neutral’ ‘global’ yardstick of psychiatry to assess the sanity of a local though widespread African belief.”
Prof. de Jong also notes that authoritative instruments in the field of psychiatry and psychology, such as the International Classification of Diseases or the Diagnostic and Statistical Manual of Mental Disorders, claim that believing that you are the son of God need not be pathological when it occurs within a religious context. But no mental health expert knows how big a group of adherents must be, in order to be called a sect, a cult or a religion. So, says de Jong, we also don’t know if the size of the LRA with its deviant cosmology is large enough to qualify as some sort of religion where delusional thinking about the power of the Holy Spirit is seen as normal and normative. Because the law may say we do not judge beliefs, unless they are the expression of a delusion. But how, asks de Jong, do you then apply the law when you have a mass movement with a collective delusional ideology, delusional in the true psychiatric sense, meaning false thoughts that cannot be corrected?
Thus, the entire cultural context in which these crimes are committed presents a serious challenge – both for mental health professionals and judges alike – for establishing the proper role of culture and psychology and how they relate to questions of what is considered normal and what is considered deviant.
Turning to the second issue, Prof. de Jong expresses his concerns regarding the ICC’s selection of mental health experts and the Court’s ability to address these reports critically. In de Jong’s view, the ICC should choose experts which are specifically qualified in the sub-field that is relevant for a particular case. For many cases, this would be specialists in trauma and post-traumatic stress disorder, but also specialists from the field of cultural psychiatry and psychology who are specialized in the culture to which the defendant belongs.
In Ongwen, Prof. de Jong had serious reservations regarding the expertise of one of the Court’s appointed experts who stated that someone with post-traumatic stress disorder would not be able to handle a weapon, be promoted, become an administrator, or fight – as Ongwen did. According to him, this is not only incorrect, but also goes against UN reports prepared by mental health professionals who studied the behaviour of former child soldiers in Uganda, all of which demonstrate extremely high rates of post-traumatic stress disorder and depression.
This expert also alleges that people who are in combat cannot suffer from PTSD. This is the opposite conclusion reached by this same expert in a study that he co-authored on Burundians deployed in Somalia.
Finally, de Jong points that the expert argues that Ongwen cannot be depressed because he works hard and pays attention to his children. Many of us, and certainly mental health professionals, know that depressed people often work hard and love their children to feel less depressed or less numb. According to de Jong, this is another display of professional naiveté. He sharply states that ‘“If the prosecution gets away with this kind of biased and flawed opinions, the ICC runs the risk that serious experts in the future may turn their back on the tribunal.”
Thirdly, de Jong states that the Court should be mindful of the limitations of the mental health profession when the Court asks psychiatrists or psychologists to evaluate the mental state of the defendant at the time of the commission of the crime. One of the experts in this case was very confident of his ability to assess how many dissociative episodes Ongwen had in the period 2002-2005. According to de Jong, any trauma specialist around the world would agree that this is absolutely impossible, because of the difficulty in reaching such a high degree of precision and certainty surrounding events which took place years ago. The existence of these limitations requires, first and foremost, transparency on behalf of the mental health professional, but it is equally important that the Court is also aware of these limitations that fall outside its own competence.
Overall, Prof de Jong believes that ‘in the short term, the ICC might learn that it has to be more specific in what it asks its expert to do to avoid some of these unpleasant afterthoughts.’
Acknowledgements: I thank Prof. A. McFarlane for his insightful suggestions.
Joop de Jong, MD, PhD, is a psychiatrist and psychotherapist. He is Emeritus Professor of Cultural Psychiatry and Global Mental Health at UMC Amsterdam, Adjunct Professor of Psychiatry at Boston University School of Medicine, and Emeritus Visiting Professor of Psychology at Rhodes University, South Africa. He was the founder and director of the Transcultural Psychosocial Organization (TPO), which provided mental health and psychosocial services, especially in post-war and post-disaster areas, in over 20 countries in Africa, Asia, and Europe. Joop de Jong worked part-time as a psychotherapist and psychiatrist with immigrants and refugees in the Netherlands. He has been integrating insights from public and global mental health, psychotherapy, psychiatry, anthropology and epidemiology in community interventions, on which he co-authored 335 papers, chapters and books.
Marina Fortuna (LLM) is a PhD researcher in the TRICI-Law project at the University of Groningen. Her PhD research focuses on the interpretation of customary international law in the practice of international courts and tribunals. Marina’s area of interest and research includes customary international law, interpretation, international courts and tribunals, impartiality and reasoning of international judges and the intersection between international law and psychology/psychiatry.