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Monday, June 22, 2020

Schell Center Postgraduate Fellow Spotlight: Nikila Kaushik ’19 LL.M.

Nikila Kaushik

Nikila Kaushik ’19 LL.M., a Robina Foundation Fellow, is spending her fellowship year in The Hague, Netherlands working for the Office of the Prosecutor at the International Criminal Court (ICC). A former Federal Prosecutor in Australia, Kaushik is now working in international criminal justice, an aspiration of hers, with a human rights perspective acquired as a member of the Allard K. Lowenstein Human Rights Clinic.

Kaushik is on the prosecution team of Dominic Ongwen’s trial, the first in which the ICC has considered duress and mental disease or defect as grounds for excluding responsibility for international crimes. Ongwen — the alleged former commander of the guerrilla group Lord’s Resistance Army (LRA) — has been charged with 70 counts of crimes against humanity and war crimes allegedly committed after July 2002 in northern Uganda. Kaushik joined the international prosecution team for the final stages of the four-year trial, and helped the team to respond to the defense’s expert evidence on mental illness, to develop its closing brief and to prepare for closing statements, delivered from March 10–12. Shortly afterward, her work was put temporarily on hold due to COVID-19, but she is currently hoping for a verdict by the end of 2020.

Kaushik described this case as “going to the very edges of the criminal law concepts of mental illness, incapacity and duress.” Ongwen, who was abducted and forced into the Lord’s Resistance Army as a child, later rose up through the ranks of the guerrilla group. As a senior commander, he is alleged to have ordered attacks on camps for internally displaced people — during which fighters under his command murdered and tortured civilians — to have systematically abducted children to become child soldiers and domestic servants, and to have overseen a system of sexual crimes against women, some of whom he personally enslaved and forced to bear his children.

The prosecution has argued that despite the tragedy of Ongwen’s circumstances, the legal elements of duress have not been made out. It argued further that there is no evidence that Ongwen suffered from mental illnesses that destroyed his capacity to understand or control his conduct. The defense, on the other hand, has shielded Ongwen using a “once a victim, always a victim” argument that seemingly absolves him of all responsibility.

Kaushik herself has sought a more nuanced perspective. She feels “no ideological affiliation with the prosecution,” and has attempted in her work to respond to the incapacity narratives in Ongwen’s defense with “empathy,” and in a way that “acknowledges his victimhood.”

Kaushik sympathizes with Ongwen’s victim status as a person who was “abducted into a brutal organization at a young age” and who potentially did not have the opportunity to develop judgment having “endured extreme circumstances.” However, she also feels for his victims, particularly the children and women whose rights he allegedly violated, and recognizes the seriousness of the charged crimes. She tries to “reconcile these two narratives to bring humanity into the criminal proceedings.”

Kaushik believes her legal education at Yale influenced her current approach to her work. “YLS informed the way in which I think about criminal justice and international criminal law,” Kaushik says. “The Clinic pushed me to critique the assumptions I made about international criminal justice and human rights and to think more carefully about the institutions created to protect them.” This critical perspective she obtained has shaped her work on Ongwen’s case.

As an Australian lawyer, Kaushik worked as the Associate to a Judge of the Federal Court of Australia and as a lawyer at the Commonwealth Attorney-General’s Department. At Yale, Nikila was a member of the Allard K. Lowenstein Human Rights Clinic and was on the Board of the Yale Journal of International Law. Ongwen’s trial, Kaushik says, raises issues she has been “thinking about and interested in for a long time.”

In order to contribute to the prosecution team’s filing and drafting, she has had to draw from her experience as a criminal lawyer. To engage with “some of the more difficult issues that have come up,” however, she has had to draw from her experiences at the Law School. She tries to “step back from the strategy” and to-and-fro with defense in order to think more carefully about the language used throughout the trial. “It’s easy to get lost in the strategic fight...Yale has been a constant prompt to be more critical and reflective about what this means for the future, especially with [the consideration of duress and mental illness] that is novel in international criminal law.”

From Kaushik’s perspective, the prosecution in any setting “has a huge responsibility to be fair, to not overstate a case and to not get carried away by rhetoric.” Instead, she believes a “balance [must be] struck between acknowledging victimhood and working to the ends of the prosecution.” While everyone “acknowledges that Ongwen was a victim,” the question of “how the law should treat that victimhood” remains. “Victim perpetrators,” Kaushik says, “are not unique nor unprecedented... it is important that the complexity of their cases does not result in crimes of such seriousness being met with impunity.”

Since October, Kaushik has been embracing trial and advocacy and she will continue to do so in her next case “working with a team dealing with Russia’s incursions into Georgia in 2008.” She will be working on this case at its pre-trial stage which she hopes will be an “interesting way to develop her drafting skills.” Kaushik continues to appreciate her time at the ICC, even at a moment when the court is “facing serious political persecution.” She says that the ICC has been “attacked for the way that it is operating” by countries that “see it as a threat to their sovereignty to have their citizens pushed into an international court.” From the inside, however, she believes that everyone around her is “acting with integrity” and she is “comforted by the fact that [she is] working with really excellent lawyers.”