The Dominic Ongwen case at the ICC and the double status of child soldiers as victims-perpetrators

Abbreviations
________________________________________
CS(s) Child Soldier(s)
ICC International Criminal Court
IL International Law
IHL International Humanitarian Law
ICL International Criminal Law
UN United Nations
LRA Lord Resistance Army
CRC Convention on the Rights of the Child
PTC ICC Pre-Trial Chamber
IHRL International Human Rights Law

On December 6th 2016, the ICC launched the trial of Dominic Ongwen, a former CS who rose through the ranks and became one of the ruthless commanders of the LRA, an Ugandan rebel group renowned for its violence against several populations in East and Central Africa . This trial has particularly received widespread attention from the international community given that it marks the first time ever for a former child soldier to be tried before the ICC and be accused of crimes of which he was also a victim. In fact, The Ongwen trial at the ICC is particularly illustrative of the complex status of CSs as victims-perpetrators where, notwithstanding their vulnerability as victims, they are equally perceived as dangerous criminals who deserve to face criminal charges for their actions.

The trial of Dominic Ongwen before the ICC began on 6 December 2016 . While he was abducted by the LRA at only 9 years old, Ongwen rose through the ranks and became a senior commander among the rebel group. The LRA has been responsible for the deaths of nearly 100,000 people as well as acts of torture, rape, forced labour, and more across countries such as Uganda, Sudan, The CAR and DRC . Additionally, they have also been responsible for the abduction of at least 30,000 children who have been used primarily as sexual slaves or combatants, such as in the case of Ongwen. Dominic Ongwen was charged with 70 counts of war crimes and crimes against humanity pursuant to articles 5,7 and 8 of the Rome Statute , namely in relation to some of the most violent raids led by the LRA between 2002 and 2005 as well as for his active participation in the conscription of children under the age of 15. If convicted, he risks facing up to 30 years in prison or the possibility of a life sentence. The complexity of this trial is particularly found in the challenges that there is in determining whether or not Ongwen, as a former CS, should be held responsible for his actions or if, instead, he should be considered as a victim whose trauma influenced his life decisions. As we shall observe in the following lines, contrary to traditional discourses of victimhood or culpability, the situation of CSs isn’t so black and white . Rather, it is one that transcends guilt and innocence, agency and vulnerability as well as adulthood and childhood .

The first line of arguments about CSs is that they are beforehand victims and that only their recruiters must face criminal charges. Proponents of this approach argue that despite their violent participation in armed conflicts, CSs should never face prosecution, as it would appear as a sort of double victimisation , given the great amount of psychological and physical damage that they already suffer as a result of their recruitment . In the Ongwen case for instance, his defense team argued that his troubling background must be taken into consideration, given that he was “bullied, brutalized, and indoctrinated as a child soldier” . Based on the testimonies of ex-LRA CSs who were fortunate enough to abscond, escapes or acts of resistance often resulted in severe punishment as well as death threats on the abductees or their families . For instance, in the Lubanga case, the ICC recognised “the environment of terror” to which CSs are subjected as well as the extent to which it may strip them off their freedom of choice. As a result, in order to survive, they must “obey orders, fight hard, and excel in the way of the rebels.” , which often involves committing serious acts of violence. Ziv Bohrer argues that the degree of coercion faced by CSs should be used to excuse their behaviour when there is evidence of “harsh coercive means…used as part of a comprehensive attempt to indoctrinate [them].” In this context, Ongwen’s defence argued that he should benefit from the legal protection to which CSs are entitled and should be dismissed of criminal responsibility under the defence of duress , even though it took him nearly 30 years after his abduction to leave the ranks of the LRA. In fact, Articles(31)(d) and 31(3) of the Rome Statute provide that the defense of duress may be used if it can be proven that the defendant did not “intend to cause a greater harm than the one sought to be avoided” . In this context, Ongwen’s defence argued that, while he may have shown a desire to escape , his decision to remain within the ranks of the LRA emerged out of a fear for his life and other potential harmful consequences as a result of such action . However, these arguments were rejected by the Pre-Trial Chamber, which stated that “duress is not regulated in the Statute in a way that would provide blanket immunity to members of criminal organisations which have brutal systems of ensuring discipline as soon as they can establish that their membership was not voluntary” . In fact, despite duress being a factor that may have constrained Ongwen to commit the killings of innocent populations, the proportionality of his actions may be harder to demonstrate. Given the high level of brutality as well as the severity of the crimes committed by the LRA, it is hard to prove whether Ongwen’s actions were necessary or if such actions were proportionate to the threat placed upon him. In fact, some witnesses argued that his actions may have resulted more from a desire to “thrive” through the LRA and acquire respect from his superiors rather than from a pure survival instinct . If this can be proven, the principle of proportionality under Article 31(d) may be dismissed and rather than being treated entirely as a victim, Ongwen may on the contrary be perceived as a perpetrator.

The second line of arguments about the status of CSs is that they are criminals who deserve to face charges for the crimes that they have committed against innocent populations. For the proponents of this approach, Ongwen’s trial at the ICC is necessary given that a failure to prosecute him would conversely serve as a green light for CSs to carry out acts of impunity. In fact, it is important to note that the aim of the ICC, as stated in the Rome Statute Preamble is to punish “morally culpable” perpetrators of crimes . Consequently, crimes against humanity “must not go unpunished” and their “their effective prosecution must be ensured” . Additionally, current international or regional instruments related to children’s rights recognise the possibility for persons under 18 years old to be prosecuted, and thus to be held criminally responsible as a result. For instance, Article 40(1) of the CRC recognises the possibility for a child to be “alleged as, accused of, or recognized as having infringed the penal law” . David Rosen argues that CSs may even fight for the same causes as adults and “act independent of adult authority and power” . He gives the example of the Intifada in Israel and Palestine, where the ability of young children to engage in atrocious acts of violence has been constantly demonstrated . Contrary to a tendency of NGOs and international humanitarian groups to cast CSs as victims of war who must be exempt of criminal responsibility as a result of their age, their reality tends to be much more complex than that. In fact, Drumbl characterises the victimhood narrative as “ill fitting” and an oversimplification of their status, given that some are more responsible than others. He argues that their responsibility must be determined on a case-by-case basis, and not simply be excluded because of their age or the context in which these crimes were committed. This explains why, in the case of Ongwen, the argument of duress was rejected given that the ICC could not confirm whether his actions were beyond his control.

They argued for instance that while Ongwen may not have been able to reject the (forced) wives that were attributed to him, “he could have avoided raping them, or, at the very least, he could have reduced the brutality of the sexual abuse” , yet reports reveal that he chose to regularly rape them instead . This reveals how, aside from being victims, CSs may in some cases hold a certain degree of responsibility. However, it is nonetheless important to consider the degree of coercion placed upon them, which may serve as a mitigating factor. The story of Simon, an ex CS who was “forced to kill his parents with a machete before he was abducted” by the LRA is here to prove this. Similarly to Ongwen, Simon spent several years within the LRA, by fear of what could potentially happen to him if he had tried to escape, as well a strong sense of shame, reject and hate that he could potentially face from his community upon his return . This example reveals how, similarly to the victim approach, the depiction of CSs as solely perpetrators appears inadequate given that in most cases, they are forced to commit acts against their will, and under extreme threats which may deprive them of their abilities to make informed choices. What is different between Simon and Ongwen however is that while the former was later on rescued , this was regrettably not the case for Ongwen and certainly not the case for the majority of CSs who remain trapped within the violent and macabre atmosphere of armed conflicts. It seems apparent from the Ongwen case that there exists a deeply contrasting narrative about the status of CSs, where on one part their story appears as one about “inevitability, involving an individual caught up in events beyond his control” whereas on the other side it appears as “a narrative about choice, involving a moral agent who had genuine opportunities to act otherwise than he did notwithstanding his devastating upbringing”. However, as demonstrated in the previous lines, both of these approaches fail to strike a satisfactory balance between the vulnerability of CSs as children as well as their degree of criminal responsibility as perpetrators. It appears thus that CSs cannot be either victims or perpetrators but appear more so as a combination of both.

References
Table of Legislation
Table of cases
The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15

The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06

International
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990)

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002)

Bibliography
Books
Denov M, Child Soldiers: Sierra Leone’s Revolutionary United Front (Cambridge University Press 2010)

Drumbl M., Reimagining Child Soldiers in International Law and Policy (Oxford University Press 2012)

Journals
Baines E, ‘Complex political perpetrators: reflections on Dominic Ongwen’ (2009) 47 TJMAS 163

Bohrer Z, ‘Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology And Psychology‘ (2012) 33 MJIL 750

Grover S, ‘Child Soldiers’ as ‘Non-Combatants’: The Inapplicability of the Refugee Convention Exclusion Clause’ (2008) 12 IJHR 53
Risacher B, ‘No Excuse: the Failure of the ICC’s Article 31 “Duress” Definition’ (2014) 89 NDLR 1403, 1418.

Websites
Burke J, Trial of ex-child soldier Dominic Ongwen to hear prosecution case (16 January 2017) <www.theguardian.com> accessed 26 March 2020

Drumbl M, ‘The Ongwen trial at the ICC: tough questions on child soldiers’ (14 April 2015) <www.opendemocracy.net> accessed 5 April 2020

Human Right Watch, Questions and Answers on the LRA Commander Dominic Ongwen and the ICC (5 December 2016) <www.hrw.org> accessed 29 March 2020

HRW, DR Congo: Lord’s Resistance Army Rampage Kills 321 (28 March 2010) <www.hrw.org> accessed 29 March 2020

Rosen D, Child Soldiers:Victims or Heroes? <www.fdu.edu> accessed 2 April 2020
Kersten M, Shifting Narratives: Ongwen and Lubanga on the Effects of Child Soldiering (20 April 2016) <https://justiceinconflict.org> accessed 8 April 2020

Kersten M, The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander (12 April 2016) <https://justiceinconflict.org> accessed 8 April 2020

Kersten M, The Ongwen Trial and the Struggle for Justice in Northern Uganda (14 April 2016) <https://justiceinconflict.org> accessed 8 April 2020

Mark Kersten,We Need to Talk About Ongwen: The Plight of Victim-Perpetrators at the ICC (19 April 2016) <https://justiceinconflict.org> accessed 2 April 2020

By Juliette Emmanuel, LLM Graduate (1st Class Honours) in International Criminal Justice and Human Rights Law, University of Kent

 

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