Nini Els Pieters, MSc International Crimes, Conflict and Criminology, Vrije Universiteit Amsterdam, and Tonny Raymond Kirabira, Visiting Fellow at the Firoz Lalji Institute for Africa, LSE.

Introduction

On 4 February 2021, the Trial Chamber of the International Criminal Court (ICC or Court) issued its verdict in the case The Prosecutor v Dominic Ongwen .[1] Ongwen, who was found guilty of 61 out of 70 counts of war crimes and crimes against humanity, was among the top commanders of the Lord’s Resistance Army (LRA), a rebel group which waged a violent war in Northern Uganda for over two decades.[2] In 2005, the Office of the Prosecutor (OTP) at the ICC issued arrest warrants against five prominent leaders of the LRA,[3] of which only Ongwen was apprehended by the Court. This post explores the legal discourse in the Chamber’s judgement, with a focus on the phenomenon of former child soldiers. It argues that the Court missed a vital opportunity to determine how child soldiering impacts on criminal activity and liability for war crimes and crimes against humanity in the long term. Nonetheless, the case is a remarkable precedent for the prosecution of Sexual and Gender Based Violence (SGBV) crimes under international criminal law.

Besides the broader political debate on selective justice[4] and the contribution of the ICC to local peace processes,[5] the Ongwen case has proven controversial because of the defendant’s dual status as both a victim and a perpetrator.[6] This is due to the fact that Ongwen was himself abducted by the LRA and recruited as a child soldier, making him the first person ever to be convicted at the ICC as a victim-turned perpetrator.[7] The case sparked a rich academic debate on the moral and criminal responsibility of such individuals, namely former child soldiers who have reached legal adulthood. This is particularly complex given that child soldiers are predominantly portrayed as agentless victims in international law, transitional justice, and socio-psychological research.[8] It is even more relevant in the context of Northern Uganda, where the LRA has abducted tens of thousands of children who often stayed with the rebel group for prolonged periods of time.[9]

The Trial Chamber’s Discourse and Legal Narratives

The Ongwen judgement centers around four main categories or incidents.[10] First, the Chamber convicted Ongwen of crimes committed during four specific attacks against Internally Displaced Peoples (IDP) camps.[11] Second, he was found guilty of various SGBV crimes perpetrated against seven women who were placed in his household.[12] Third, he was convicted for SGBV crimes against a number of other women within the Sinia brigade of which he was the commander.[13] Fourth, the Chamber found Ongwen guilty for conscripting and using children below the age of fifteen for the active participation in hostilities,[14] which is the same crimehewas subjected to more than thirty years ago. 

Two remarkable observations can be made with regard to the judgement. First, it is notable that the Trial Chamber focused extensively on the issue of SGBV, which constitutes a recurring theme throughout the legal narrative in the judgement and the crimes of which Ongwen was convicted. It was also the first time that an international criminal court recognized forced pregnancy as a separate, SGBV crime.[15] Tonny Raymond Kirabira and Mugero Jesse therefore argue that the Ongwen case marks progress towards more gender-sensitive international justice, while at the same time much more needs to be done to protect vulnerable categories such as (male) victims of sexual violence or children born of war.[16] Similarly, Anushka Sehmi, a lawyer assisting in the representation of victims in the Ongwen case is critical of the way the Prosecutor framed the SGBV crimes, arguing that incidents of rape committed outside the context of forced marriage were not captured.[17] 

Second, it is striking how little attention the Trial Chamber seems to have paid to the adult-child and victim-perpetrator complexities that so evidently arise from Ongwen’s background. The Defense put forward two arguments to exclude Ongwen from criminal responsibility: duress and mental incapacity; both of which were rejected by the Trial Chamber after careful consideration.[18] Thereafter, the judges address in a short paragraph what they call “some legally unspecified submissions” of the Defense on the status of Ongwen as a former victim of the LRA.[19] However, the Chamber swiftly proceeds to reject these arguments on the basis that prior victimization cannot in itself constitute a justification for the commission of international crimes.[20]

The Adult-Child Dichotomy and Former Child Soldiers

The Chamber’s obscure discourse is a reminder of the rigid adult-child dichotomies created in international criminal justice. Below a certain age, former child soldiers are exclusively approached as vulnerable victims who cannot be held morally responsible for their actions, and who are therefore excluded from criminal jurisdiction (see for example Art. 26 of the Rome Statute). In fact, the ICC Trial Chamber in The Prosecutor v Thomas Lubanga went to elaborate lengths to emphasize the devastating and long-term effects of child soldiering. The Chamber in this case argued that former child soldiers remain scarred for life, unable to function properly or to overcome their traumatic experiences as an adult.[21] However, all of this somehow seems to be irrelevant with regard to former child soldiers such as Ongwen who have reached legal adulthood.[22] In this context, Mark Kersten argues that the discrepancy between the Lubanga and the Ongwen judgements may suggest that the ICC is in fact unable to grasp the complex and non-binary nature of victim-and perpetrator-hood.[23] This statement seems supported by the fact that the Chamber in the Ongwen case addressed the issue of his victimhood only marginally, and limited the evaluation of this argument to its legal (ir)relevance for the application of a defense under Art. 31(1) of the Rome Statute.

It has been well documented how newly recruited LRA child soldiers are subjected to extremely violent military training as well as extensive indoctrination with the group’s spiritual-political ideology.[24] Children from the Acholi community in Northern Uganda are particularly susceptible to this type of indoctrination, since religion and spirituality are deeply anchored in the Acholi culture.[25] Hence, many young recruits come to internalize the LRA’s ideology and grow up to become ruthless soldiers themselves.[26] However, in light of their highly traumatic experiences, it can be questioned whether such individuals develop the capacity to fully understand and appreciate the immorality of their conduct.[27] In the context of the ICC, Renee Nicole Souris argues that even though the Rome Statute does not explicitly address this issue, a certain ‘ordinary moral perception’ on the part of the defendant is implicitly presumed.[28]

Conclusion

To be fair, the Defense in the Ongwen case was unable to prove that the defendant fulfilled the legal elements required for a defense of mental incapacity or duress under Articles 31(1)(a) and 31(1)(d)(i) of the Rome Statute.[29] In other words, Ongwen knowingly and intentionally subjected countless IDPs, women, and children to murder, torture, enslavement, (sexual) violence, and other outrages upon personal dignity. By no means do we wish to dispute this fact, or to downplay the suffering of his victims. Nonetheless, we may ask ourselves how just it is to hold someone criminally responsible if he or she was never taught the wrongfulness of certain conducts. In other words, we cannot underestimate the long-term impact of child soldiering on Ongwen’s criminal activities during his adulthood. 

This, in our opinion, is the missed opportunity in the case against Dominic Ongwen. The Chamber could have addressed the dilemmas arising from Ongwen’s dual status as both a perpetrator of international crimes, but also a former child soldier who never experienced anything but life within the LRA. The Chamber could have acknowledged that, even though Ongwen does not suffer from a complete destruction of mental capacity, he might not have had the opportunity to develop an ordinary moral perception of the world. The judges could also have engaged in a renewed discussion on the responsibility of former child soldiers, perhaps refining the view that they are solely innocent victims who lack any sort of moral agency.[30] Despite its judgement of over a thousand pages, the Trial Chamber in Ongwen chose to do neither of these things. Rather, the judges focused on strict legalistic narratives which do not allow for a more nuanced conceptualization of what it means to be morally responsible. This reaffirms the view that the adult-child dichotomy in international criminal law seems to assume that time alone creates an individual’s capacity to be held morally, and legally, responsible. As ethical theorist Jill Stauffer has noted: “Clearly, as an answer to an important moral, legal, and political question, that is not good enough.”[31]

[1] The Prosecutor v Dominic Ongwen (Trial Judgement) ICC-02/04-01/15-1762 (4 February 2021). <https://www.icc-cpi.int/itemsDocuments/ongwen-verdict/qandq-ongwen-verdict-eng.pdf> accessed 14 April 2021.

[2] Office of the Prosecutor, ‘Statement by the Chief Prosecutor on the Uganda Arrest Warrants’ (ICC, 14 October 2005) <https://www.icc-cpi.int/nr/rdonlyres/3255817D-fd00-4072-9F58-fdb869F9B7cf/143834/lmo_20051014_English1.pdf> accessed 14 April 2021.

[3] ‘Case Information Sheet: The Prosecutor v Dominic Ongwen, ICC-02/04-01/15-1762’ (ICC, 4 February 2021) <https://www.icc-cpi.int/CaseInformationSheets/ongwenEng.pdf> accessed 14 April 2021.

[4] Adam Branch, ‘Dominic Ongwen on Trial: The ICC’s African Dilemmas’ (2017) 11(1) International Journal of Transitional Justice 30.

[5] Janine N Clark, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’ (2011) 9(3) Journal of International Criminal Justice 521; Elin Skaar, ‘Reconciliation in a Transitional Justice Perspective’ (2012) 1(1) Transitional Justice Review 54; Branch (n 4).

[6] Mark A Drumbl, ‘Victims Who Victimise’ (2016) 4(2) London Review of International Law 217.

[7] Erin K Baines, ‘Complex Political Perpetrators: Reflections on Dominic Ongwen’ (2009) 47(2) The Journal of Modern African Studies 163. See also Drumbl (n 6).

[8] Sarah Kihika Kasande and Virginie Ladisch, ‘The Complex Reality Beyond the Trial of Dominic Ongwen’ (ICTJ, 12 May 2016 <https://www.ictj.org/news/complex-icc-ongwen&gt; accessed 14 April 2021.

[9] See eg Lotte Vermeij, ‘Socialization and Reintegration Challenges: A Case Study of the Lord’s Resistance Army’ in Alpaslan Özerdem and Sukanaya Podder (eds), Child Soldiers: From Recruitment to Reintegration (Palgrave Macmillan 2011).

[10] The Prosecutor v Dominic Ongwen (n 1).

[11] Ibid [2822]- [3020].

[12] Ibid[3021]- [3068].

[13] Ibid [3068]- [3100].

[14] Ibid[3101]- [3115].

[15] Ibid [2722]. See also Tonny Raymond Kirabira and Leïla Choukroune, ‘Dominic Ongwen: ICC Conviction of Former Child Soldier Establishes ‘Forced Pregnancy’ as a War Crime’ (The Conversation, 9 February 2021) <https://theconversation.com/dominic-ongwen-icc-conviction-of-former-child-soldier-establishes-forced-pregnancy-as-a-war-crime-154671&gt; accessed 15 April 2021; Tonny Raymond Kirabira and Mugero Jesse, ‘Dominic Ongwen Conviction: A Move Towards Gender Sensitive International Criminal Justice’ (London School of Economics, 17 March 2021)

<https://blogs.lse.ac.uk/wps/2021/03/17/dominic-ongwen-conviction-a-move-towards-gender-sensitive-international-criminal-justice/> accessed 14 April 2021.

[16] Kirabira and Choukroune (n 15); Kirabira and Jesse (n 15).

[17] Anushka Sehmi, ‘Still Falling Short? The Prosecution of Sexual and Gender-based Crimes in the Ongwen Case at the International Criminal Court’ (Leuven Transnational Justice Blog, 29 March 2021) <https://blog.associatie.kuleuven.be/ltjb/category/blog-post/&gt; accessed 15 April 2021.

[18] The Prosecutor v Dominic Ongwen (n 1) [2497], [2580], [2668], [2668].

[19] Ibid [2672].

[20] Ibid.

[21] Mark Kersten, ‘‘Getting’ an Unforgettable Gettable: The Trial of Dominic Ongwen’ (Justice in Conflict, 5 February 2021)

<https://justiceinconflict.org/2021/02/05/getting-an-unforgettable-gettable-the-trial-of-dominic-ongwen/> accessed 14 April 2021.

[22] Drumbl (n 6); Jill Stauffer, ‘Law, Politics, the Age of Responsibility, and the Problem of Child Soldiers’ (2016) 16(1) Law, Culture and the Humanities 42.

[23] Kersten (n 21).

[24] Scott Gates, ‘Why Do Children Fight? Motivations and the Mode of Recruitment’ in Alpaslan Özerdem and Sukanaya Podder (eds), Child Soldiers: From Recruitment to Reintegration (Palgrave Macmillan 2011); Eleanor Beevor, ‘Coercive Radicalization: Charismatic Authority and the Internal Strategies of ISIS and the Lord’s Resistance Army’ (2016) 40(6) Studies in Conflict & Terrorism 496; Renée Nicole Souris, ‘Child Soldiering on Trial: An Interdisciplinary Analysis of Responsibility in the Lord’s Resistance Army’ (2017) 13(3) International Journal of Law in Context 316.

[25] Fionna Klasen and others, ‘Posttraumatic Resilience in Former Ugandan Child Soldiers’ (2010) 81(4) Child Development 1096.

[26] Baines (n 7); Gates (n 24); Vermeij (n 9).

[27] See Souris (n 24).

[28] Ibid.

[29] The Prosecutor v Dominic Ongwen (n 1).

[30] See also Krista K Thomason, ‘Guilt and Child Soldiers’ (2015) 19(1) Ethical Theory and Moral Practice 115.

[31] Stauffer (n 22).