International criminal courts face a fundamental challenge when prosecuting crimes that involve deeply cultural practices. How do judges decide whether a particular behavior constitutes a specific crime when that behavior is embedded in local customs and traditions? This question has become increasingly important as courts encounter diverse cultural contexts, from the bush wives phenomenon in Uganda to imposed Islamic marriages in Mali.

Recent research from Assistant Professor Quackelbeen at Tilburg University suggests that the International Criminal Court’s 2021 judgment in the Ongwen case provides a revealing window into how judges currently approach this challenge. Dominic Ongwen, a former commander in Uganda’s Lord’s Resistance Army, was convicted for crimes including forced marriage under the category of “other inhumane acts.” The case centered on the phenomenon of “bush wives” – young girls who were abducted by the LRA and forced to serve as wives to commanders while also performing household labor and suffering various forms of violence, including sexual violence.

The legal category of “other inhumane acts” serves as a catch-all provision in international criminal law, designed to capture serious crimes that don’t fit neatly into other specified categories such as murder, torture, or sexual slavery. This residual category has existed since the Nuremberg trials and requires that acts be similar in character and gravity to listed crimes while also being materially distinct from them. Courts must walk a careful line, proving both similarity to existing crimes and distinctiveness from them. Also, the use of this category is somewhat limited as the principle of legality and the ban on extending criminal provisions by analogy require the judges to carefully assess whether including conduct is, amongst other things, legitimately foreseeable.

Quackelbeen’s analysis reveals that judges in the Ongwen case used what she terms an “Aristotelian Approach” to categorization. This traditional method works like a checklist – judges examine whether a practice possesses certain necessary properties to belong to a particular crime category. In the forced marriage analysis, judges focused on three main elements: whether the acts caused similar harm to other crimes against humanity, whether they were similar in character to listed crimes, and whether they contained materially distinct elements.

For the harm requirement, judges argued that forced marriage created different and additional suffering beyond other forms of sexual violence. They claimed victims experienced unique stigmatization in their communities, mental trauma from being forced into conjugal relationships, and deprivation of their fundamental right to choose their spouse. However, the research reveals significant problems with this reasoning. Expert testimony in the case indicated that all returnees from the LRA faced substantial difficulties and stigmatization, with no clear evidence that wives suffered differently than other victims of sexual and gender-based crimes. The main factor that seemed to create additional stigma was whether women returned with children, not their status as wives.

The requirement for material distinctiveness led judges to identify three key factors. First, the imposition of marriage status. Second, the exclusivity of the conjugal relationship, which they argued could lead to punishment for violations. And third, the different social harm suffered by victims. However, the analysis shows these determinations often relied on external precedent rather than evidence from the case itself. Most significantly, judges failed to engage meaningfully with local marriage customs or explain how the LRA practices related to traditional Acholi marriage concepts.

This research reveals that judges in Ongwen made little effort to understand Acholi marriage practices. They noted the absence of traditional marriage rituals but failed to explore what those rituals typically involved or how the LRA might have perverted them. Expert testimony was available about nineteenth-century Acholi customs of marriage by capture, but judges didn’t examine how this historical practice related to contemporary understandings of marriage or how local communities interpreted the LRA’s use of marriage terminology.

The emphasis on exclusivity as a marriage characteristic appears particularly problematic in a context where polygamous marriages are legal in Uganda. This focus seems to reflect Western marriage concepts rather than local understanding, suggesting the checklist approach led to culturally inappropriate assumptions being imported from other cases, particularly the Special Court for Sierra Leone decisions.

This Aristotelian approach creates several serious problems, failing to account for how practices adapt to different contexts. Professor Quackelbeen proposes to look at an alternative way of understanding categorization drawn from cognitive science called prototype theory. This theory suggests that categorization works not through rigid checklists but by comparing objects to prototypical examples of categories. Rather than requiring all necessary properties, prototype theory recognizes that some examples of a category are more representative than others, with category membership being a matter of degree based on similarity to the prototype.

In the context of marriage, prototype theory would require judges to first understand what constitutes a prototypical marriage in the relevant culture, then assess how closely the criminal practice resembles that prototype. This approach acknowledges that prototypes are often culturally determined – what represents a typical marriage in one society may differ significantly from another.

A prototype approach might have led to different conclusions in the Ongwen case. Given the lack of ceremonial practices, family involvement, or community recognition that typically characterize Acholi marriages, the bush wives phenomenon appears to more closely resemble a prototypical example of enslavement rather than marriage. The research suggests that judges avoided thoroughly examining the enslavement label, possibly missing a more appropriate legal characterization.

The Al Hassan case at the International Criminal Court provided another opportunity to test these insights. This case involves jihadi marriages imposed by Islamic groups in Mali, where perpetrators often sought family consent, provided dowries, and attempted to legitimize unions through traditional means. The cultural practice is thus very different than what occurred in Uganda. In the confirmation of Charges proceedings, the judge showed more engagement with local marriage customs and explained the difference between the practices of arranged marriage that were firmly embedded in local cultural and these Jihadi marriages. This suggested a more culturally sensitive approach. Unfortunately, the Trial Judgment was again a demonstration of how difficult it is for judges at the international level to deal with these heavily culturally defined practices. In the end, Al Hassan was acquitted of forced marriage, unlike Ongwen, and the case only illustrated how difficult it is to apply international legal definitions to practices shaped by local culture, religion, and social norms.

This research contributes to ongoing debates about making international justice more inclusive and responsive to cultural diversity. By drawing insights from cognitive science and philosophy of language, it demonstrates how interdisciplinary approaches can address practical problems in legal interpretation. Rather than viewing choices between different legal characterizations as simple binaries, Quackelbeen argues that it is important to form a nuanced understanding of how various practices serve different functions within their cultural contexts.

Critics have long argued that international courts impose Western legal concepts on diverse cultural contexts. The challenge for international criminal courts lies in balancing respect for cultural diversity with the need to hold perpetrators accountable for serious crimes. For Professor Quackelbeen, prototype theory offers tools for achieving this balance by requiring deeper engagement with local contexts while maintaining analytical rigor. For advocates seeking more equitable international criminal law, effective reform requires careful attention to how legal concepts operate across different cultural frameworks rather than assuming universal applicability of particular legal categories.