Comment on the arguments presented by the Defense and Prosecution in The Prosecutor v. Dominic Ongwen, case nº ICC-02/04-01/15, with regards to the criminal responsibility of former child soldiers.

The

Prosecutor

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v.

Dominic

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Ongwen

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is the

first

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case

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in the International Criminal

Court

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(

ICC

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) which involves the criminal

responsibility

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of a former

child

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soldier

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. The involvement of

children

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in armed conflicts can make them victims at

first

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and

then

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perpetrators in the future.

Dominic

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Ongwen

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is accused of having committed

crimes

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established by the

Rome

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Statute

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, while he took part in the Lord's Resistance Army (

LRA

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), a rebel

group

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, in northern Uganda.

This

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paramilitary

group

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abducted the

defendant

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when he was a

child

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in

order

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to make him a

soldier

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in the conflict. On his journey with the rebel

group

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, he became a loyal, efficient and fearless

soldier

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, until he reached the commander level.

People

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who came across

Mr

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.

Ongwen

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tell different versions of his

situation

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as a

victim

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and perpetrator. Some remember that

Mr

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.

Ongwen

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took risks by setting

people

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free from kidnapping.

However

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, others say they have seen him killing pregnant women and boiling

people

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in pots. Like other

members

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of the

LRA

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,

Mr

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.

Dominic

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Ongwen

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had contradictory behaviors that reveal the complexity of his character, but he was obedient and skilled enough to be promoted to a

position

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of leadership in the

group

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. The

ICC

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investigated the

crimes

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in which

Mr

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.

Ongwen

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participated between 2002 and 2005 in refugee camps organized by the government, in the northern region of Uganda.

Thus

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, in June 2005, when

Mr

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.

Ongwen

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was about twenty-nine

years

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old, his

first

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warrant of arrest was issued by the

ICC

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, and the same happened to other

LRA

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participants, including

Joseph

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Kony

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, the

group

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’s

leader

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.

Dominic

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Ongwen

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is charged with seventy

crimes

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listed in the

Rome

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Statute

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, counted between

crimes

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against humanity and

war

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crimes

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. Regarding

crimes

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against humanity, the alleged ones are:

murder

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and attempted

murder

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, torture, sexual

slavery

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, rape, enslavement, forced marriage as an inhumane act, persecution and other inhumane

acts

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. As to

war

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crimes

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: attack against the civilian population,

murder

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and attempted

murder

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, rape, sexual

slavery

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, forced marriage, torture, cruel treatment, outrages upon personal dignity, destruction of property, pillaging,

in

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addition

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to recruitment and use of

children

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under the

age

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of fifteen to actively participate in hostilities. On March 23, 2016, the accusations were confirmed by the Pre-Trial Chamber II and

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Ongwen’s

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case

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began to be judged by the

ICC

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Trial Chamber IX and it is still in progress. It is

also

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important to mention that there are representatives of the 4,115 victims in the

case

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. They were allowed by the

ICC

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chamber to participate in the trial giving their testimonies against the

defendant

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. These

people

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are residents of northern Uganda and have suffered different types of

crimes

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committed by

Mr

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.

Ongwen

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. At the time of the

crimes

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, an estimated amount of 35,000

people

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were affected by the attacks. At present, the international community is before a peculiar

case

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of a

child

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who was a

victim

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and became the author of serious

crimes

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. In

this

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writing sample, the

Defense

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’s

arguments

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will be

firstly

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analyzed and

then

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, the

Prosecution

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’s.

Mr

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.

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Ongwen’s

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Defense

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argues that his criminal

responsibility

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and liability should be excluded under the

article

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31(a)(c)(d) of the

Rome

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Statue as he was under duress .

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, it is said that he suffers from a mental disease that destroys his capacity of appreciating the illegality or nature of his

actions

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, especially at the time of the

crime

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.

In

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addition

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, the

Defense

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claims that

Mr

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.

Ongwen

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does not understand the charges (based on the opinion of the

Defense

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’s mental health experts) and all his

actions

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should be attributed to

LRA

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leader

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Joseph

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Kony

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.

Dominic

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Ongwen

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's

Defense

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declares that the accused was abducted by the

LRA

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in 1987, when he was about nine

years

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old, on his way to school. His mother was allegedly murdered by the

LRA

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and his father disappeared. In the

LRA

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,

Mr

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.

Ongwen

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was reportedly indoctrinated, tortured, threatened and beaten by the rebels.

Additionally

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, he would have been forced to practice

acts

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of

violence

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, as well as to witness scenes of hostilities. According to the

defendant

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's lawyers,

Mr

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.

Ongwen

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was led to believe that

Joseph

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Kony

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, the

leader

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of the

LRA

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, had complete

control

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of the

group

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and required discipline from the

combatants

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.

In

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addition

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,

Mr

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.

Kony

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is believed to have supernatural and spiritual powers among

LRA

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members

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.

Mr

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.

Ongwen

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would have suffered coercion since his abduction and feared to be murdered, especially if he tried to escape.

Thus

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, it is alleged that his participation in the

group

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and his

position

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of leadership would be justified by his ability to survive, which would be better than others’ under duress.

Moreover

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, it is said by the

Defense

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that the

defendant

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's criminal

responsibility

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should be excluded because his

actions

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were a consequence of the coercion he suffered under threat of death or serious injury, under the

article

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31(1)(d) of the

Rome

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Statute

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. The

defendant

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, his family and community were allegedly threatened too. According to the

Defense

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, he would have acted in a necessary and reasonable manner under the

situation

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, satisfying the grounds to exclude the criminal

responsibility

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.

Furthermore

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, it is said by

Mr

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.

Ongwen

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's lawyers that

Mr

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.

Kony

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’s

acts

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and other

circumstances

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were beyond his

control

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. The

defendant

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is said not to have

intention

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to cause harm to

people

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, but only to survive

slavery

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. The

article

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30(1) of the

Rome

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Statute

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establishes the mental

element

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of

crimes

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related to the criminal

responsibility

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and liability: “Unless

otherwise

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provided, a person shall be criminally responsible and liable for punishment for a

crime

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within the jurisdiction of the

Court

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only if the material elements are committed with intent and knowledge.”.

Mr

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.

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Ongwen’s

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Defense

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argues that the mental

element

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of the

crime

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would not be present in the

case

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since the accused would have no

intention

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to commit the imputed

crimes

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. He was allegedly coerced to do so. The

Defense

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claims that indirect co-perpetration should not be regarded as a mode of liability because there is no

such

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legal provision in the

Rome

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Statute

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.

This

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concept would come from customary international law.

Furthermore

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,

Mr

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.

Ongwen

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's

Defense

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claims that the

Prosecution

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did not demonstrate the

defendant

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's planning and effective participation in the alleged

crimes

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. There would be neither significant contribution from his

actions

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nor any possibility of avoiding the atrocities. His behavior would have been based on reasonableness and necessity under duress. As to the

crime

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of forced marriage, it would be subsumed by the

crime

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of sexual

slavery

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and it could not be considered cumulatively with

crimes

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of

violence

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based on gender, as there would be no

intention

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to commit them.

Mr

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.

Ongwen

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's

Defense

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argues that he could not deny women offered to him as wives because

Mr

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.

Kony

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's idea was to increase the army with the reproduction of new

members

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,

in

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addition

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to recruitment. The

Defense

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alleges that the

age

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of 18

years

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old, which serves as a marker for adulthood and criminal

responsibility

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before the

ICC

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, has little relevance for a former

child

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soldier

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. The

defendant

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did not have a normal childhood for he was raised without education. His performance as a

soldier

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would be indescribable since his life was much more experiential and not intellectual. Concerning the

Prosecution

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’s

arguments

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, it is understood that the

LRA

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was a structured, organized and hierarchical

group

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with discipline, ranks and promotions.

Mr

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.

Ongwen

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would be in a

position

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of authority and he would have

control

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over the troops.

Additionally

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he would be aware of the

circumstances

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, acting as a senior commander, and becoming the biggest one in 2005, an essential participant in the

LRA

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's

actions

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.

Mr

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.

Ongwen

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's compulsory wives, as well as former commanders, former

combatants

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and abductees of the

LRA

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witnessed

Mr

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.

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Ongwen’s

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participation in the armed conflict as a

leader

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. As

prosecutor

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Fatou Bensouda pointed out at the opening statement at

Court

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, the

LRA

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was a structured and hierarchical organization.

Joseph

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Kony

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, the general commander, was at the top of the organization called "

Control

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Altar". Below

this

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were four brigades: Sinia, Gilva, Trinkle and Stockree. Bensouda highlighted that “orders flowed down the chain of command. Reports on operations were transmitted back up the chain of command”.

Mr

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.

Ongwen

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commanded the Sinia brigade by March 2004. There are reports of former

combatants

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who accuse

Mr

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.

Ongwen

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of murdering and beating

people

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for futile reasons, as well as coldly raping his compulsory wives. According to witnesses,

Mr

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.

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Ongwen’s

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subordinate

combatants

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followed his orders to immediately kill

people

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who tried to escape, without prior consultation or direct

order

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, but with a later report.

In

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addition

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, the

Prosecution

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accuses

Mr

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.

Ongwen

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of having

control

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over the distribution of women and girls to the

LRA

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fighters. The

Prosecution

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admits that

Mr

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.

Ongwen

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was the

victim

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of the same

crime

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he became a perpetrator: the

crime

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of using and recruiting

children

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under the

age

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of fifteen

years

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to participate actively in hostilities, under the

article

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8(2)(e)(vii) of the

Rome

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Statute

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.

However

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, the

Prosecution

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points out that

Mr

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.

Ongwen

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would be fourteen

years

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old at the time of the abduction, not over nine

years

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old as presented by the

Defense

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. It is said that the fact that

Mr

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.

Ongwen

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was a

victim

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in the past would be neither a justification nor an excuse for committing

crimes

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. The moral

responsibility

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is necessary. The criminal process in the

ICC

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does not focus on the goodness nor on badness of

people

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, but on the criminal

acts

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practiced by them. The

Prosecution

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obtained by interception recordings from the

LRA

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's radio conversations by Ugandan military and security organizations.

Such

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evidences

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are very significant and the records would confirm the

Prosecution

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's allegations, especially concerning

Mr

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.

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Ongwen’s

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confessions of

crimes

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. For these and other

evidences

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, the

Prosecution

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understood that he had the knowledge and the

intention

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to commit the alleged

crimes

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, a fact that would satisfy the mental

element

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of the

crime

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, under the

article

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30(1) of the

Rome

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Statute

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.

Furthermore

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, the material

element

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(the action itself) established by the same

article

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above would be satisfied because the

Prosecution

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provides

evidences

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of

Mr

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.

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Ongwen’s

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essential contributions to the

crimes

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and the coordinated manner he acted with other perpetrators.

Finally

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, the

Prosecution

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concludes that the

defendant

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is criminally responsible and liable for punishment for the alleged

crimes

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. According to the

Prosecution

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,

Mr

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.

Ongwen

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would have failed to act in a necessary and reasonable way within his powers in

order

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to prevent

crimes

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committed by his subordinates, or he would have failed to submit the matter to the competent authorities for investigation and

prosecution

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. For many times he was allegedly away for days or weeks from any

LRA

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authority and he could have escaped or released

people

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under his command.

In

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addition

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, between July 2002 and December 2005, the Amnesty Commission records show that around 9,000

LRA

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members

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surrendered and received amnesty, but

Mr

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.

Ongwen

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would not have choosen to do so. He would have continued his criminal activities with the rebels, as emphasized by the

Prosecutor

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, executing operations, which caused misery and death to many civilians, and afterwards, reporting them on the radio with enthusiasm and no regret. With regard to individual criminal

responsibility

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,

Mr

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.

Ongwen

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is charged pursuant to the articles 25(3)(a) (direct perpetration, indirect perpetration and indirect co-perpetration), 25(3) (b) (ordering), 25(3) (d) (i) and (ii) and 28(a) (command

responsibility

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) of the

Rome

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Statute

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, for

crimes

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against humanity and

war

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crimes

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, which have already been mentioned in

this

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writing sample. Presented both parties’ allegations, it is necessary to analyze the criminal

responsibility

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of former

child

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soldiers before the

ICC

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.

This

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analysis must be critical, on a

case

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-by-

case

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basis in

order

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to achieve justice. In armed conflicts, many

children

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are coerced for

years

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in paramilitary groups, even after becoming adult

combatants

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. Each one has a particular experience, which varies according to

age

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, personality, education, maturity, the place of

war

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, beliefs, religion, level of poverty and

violence

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, their length of service in the

group

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, etc. Each person’s unique experience as a

child

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soldier

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must be taken into consideration by the

Court

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. In a hypothetical

situation

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in the

ICC

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,

for example

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, a former

child

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soldier

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is accused of

crimes

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committed at the

age

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of 19.

Moreover

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,

this

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defendant

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was hypothetically abducted by an extreme violent

group

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of rebels when he was only 6

years

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old and his parents were killed by

this

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group

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. During his 13

years

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of service, he was abused, exposed to

violence

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, coercion, training and indoctrination. The attempt to escape from

this

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group

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would result in immediate death and disobedience would result in serious bodily injury. Still, hypothetically,

evidences

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demonstrate that accused acted as a mere

soldier

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, obeyed commands and executing them necessarily, proportionally and reasonably.

Hence

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, the

defendant

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’s criminal

responsibility

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would be more likely to be excluded since

this

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hypothetical

case

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describes a more favorable

situation

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to the accused if compared to

Mr

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.

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Ongwen’s

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. As to

Dominic

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Ongwen

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case

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, analyzing both parties’

arguments

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and the non-confidential

evidences

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presented in

Court

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, it is reasonable to say that the

Prosecution

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’s

arguments

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and

evidences

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are stronger and solider rather than the

Defense

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’s. The

circumstances

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are not favorable to

Dominic

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Ongwen

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for many reasons. The

defendant

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grew up in the

LRA

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and was not an ordinary

soldier

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throughout his journey. He achieved a

position

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of leadership, and he was able to act along with other perpetrators in a coordinated manner in a common plan. He had power to

control

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the

group

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, and to give orders.

Mr

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.

Ongwen

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was engaged to be successful while committing atrocities. The interception recordings from the

LRA

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's radio conversations demonstrate his enthusiasm and his commands to subordinate

combatants

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to proceed with

crimes

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. These

evidences

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show the mental

element

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of the

crime

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: the

intention

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to commit them with knowledge of the

circumstances

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and the consequences. As the

prosecutor

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Fatou Bensouda points out,

Dominic

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Ongwen

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will be judged for what he did as an adult, not for what he did as a

child

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soldier

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.

However

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, his bad experiences in the past, as she says: “may perhaps amount to some mitigation of sentence in the event that he is convicted of these

crimes

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”.

This

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would be a reasonable conclusion about the

case

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to bring reparation and justice to the victims, as well as to satisfy their expectations.