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

v.

Dominic

Ongwen

is the

first

case

in the International Criminal

Court

(

ICC

) which involves the criminal

responsibility

of a former

child

soldier

. The involvement of

children

in armed conflicts can make them victims at

first

and

then

perpetrators in the future.

Dominic

Ongwen

is accused of having committed

crimes

established by the

Rome

Statute

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

LRA

), a rebel

group

, in northern Uganda.

This

paramilitary

group

abducted the

defendant

when he was a

child

in

order

to make him a

soldier

in the conflict. On his journey with the rebel

group

, he became a loyal, efficient and fearless

soldier

, until he reached the commander level.

People

who came across

Mr

.

Ongwen

tell different versions of his

situation

as a

victim

and perpetrator. Some remember that

Mr

.

Ongwen

took risks by setting

people

free from kidnapping.

However

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

people

in pots. Like other

members

of the

LRA

,

Mr

.

Dominic

Ongwen

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

position

of leadership in the

group

. The

ICC

investigated the

crimes

in which

Mr

.

Ongwen

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

Thus

, in June 2005, when

Mr

.

Ongwen

was about twenty-nine

years

old, his

first

warrant of arrest was issued by the

ICC

, and the same happened to other

LRA

participants, including

Joseph

Kony

, the

group

’s

leader

.

Dominic

Ongwen

is charged with seventy

crimes

listed in the

Rome

Statute

, counted between

crimes

against humanity and

war

crimes

. Regarding

crimes

against humanity, the alleged ones are:

murder

and attempted

murder

, torture, sexual

slavery

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

acts

. As to

war

crimes

: attack against the civilian population,

murder

and attempted

murder

, rape, sexual

slavery

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

in

addition

to recruitment and use of

children

under the

age

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

Ongwen’s

case

began to be judged by the

ICC

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

also

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

case

. They were allowed by the

ICC

chamber to participate in the trial giving their testimonies against the

defendant

. These

people

are residents of northern Uganda and have suffered different types of

crimes

committed by

Mr

.

Ongwen

. At the time of the

crimes

, an estimated amount of 35,000

people

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

case

of a

child

who was a

victim

and became the author of serious

crimes

. In

this

writing sample, the

Defense

’s

arguments

will be

firstly

analyzed and

then

, the

Prosecution

’s.

Mr

.

Ongwen’s

Defense

argues that his criminal

responsibility

and liability should be excluded under the

article

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

Rome

Statue as he was under duress .

Moreover

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

actions

, especially at the time of the

crime

.

In

addition

, the

Defense

claims that

Mr

.

Ongwen

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

Defense

’s mental health experts) and all his

actions

should be attributed to

LRA

leader

Joseph

Kony

.

Dominic

Ongwen

's

Defense

declares that the accused was abducted by the

LRA

in 1987, when he was about nine

years

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

LRA

and his father disappeared. In the

LRA

,

Mr

.

Ongwen

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

Additionally

, he would have been forced to practice

acts

of

violence

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

defendant

's lawyers,

Mr

.

Ongwen

was led to believe that

Joseph

Kony

, the

leader

of the

LRA

, had complete

control

of the

group

and required discipline from the

combatants

.

In

addition

,

Mr

.

Kony

is believed to have supernatural and spiritual powers among

LRA

members

.

Mr

.

Ongwen

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

Thus

, it is alleged that his participation in the

group

and his

position

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

Moreover

, it is said by the

Defense

that the

defendant

's criminal

responsibility

should be excluded because his

actions

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

article

31(1)(d) of the

Rome

Statute

. The

defendant

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

Defense

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

situation

, satisfying the grounds to exclude the criminal

responsibility

.

Furthermore

, it is said by

Mr

.

Ongwen

's lawyers that

Mr

.

Kony

’s

acts

and other

circumstances

were beyond his

control

. The

defendant

is said not to have

intention

to cause harm to

people

, but only to survive

slavery

. The

article

30(1) of the

Rome

Statute

establishes the mental

element

of

crimes

related to the criminal

responsibility

and liability: “Unless

otherwise

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

crime

within the jurisdiction of the

Court

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

Mr

.

Ongwen’s

Defense

argues that the mental

element

of the

crime

would not be present in the

case

since the accused would have no

intention

to commit the imputed

crimes

. He was allegedly coerced to do so. The

Defense

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

such

legal provision in the

Rome

Statute

.

This

concept would come from customary international law.

Furthermore

,

Mr

.

Ongwen

's

Defense

claims that the

Prosecution

did not demonstrate the

defendant

's planning and effective participation in the alleged

crimes

. There would be neither significant contribution from his

actions

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

crime

of forced marriage, it would be subsumed by the

crime

of sexual

slavery

and it could not be considered cumulatively with

crimes

of

violence

based on gender, as there would be no

intention

to commit them.

Mr

.

Ongwen

's

Defense

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

Mr

.

Kony

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

members

,

in

addition

to recruitment. The

Defense

alleges that the

age

of 18

years

old, which serves as a marker for adulthood and criminal

responsibility

before the

ICC

, has little relevance for a former

child

soldier

. The

defendant

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

soldier

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

Prosecution

’s

arguments

, it is understood that the

LRA

was a structured, organized and hierarchical

group

with discipline, ranks and promotions.

Mr

.

Ongwen

would be in a

position

of authority and he would have

control

over the troops.

Additionally

he would be aware of the

circumstances

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

LRA

's

actions

.

Mr

.

Ongwen

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

combatants

and abductees of the

LRA

witnessed

Mr

.

Ongwen’s

participation in the armed conflict as a

leader

. As

prosecutor

Fatou Bensouda pointed out at the opening statement at

Court

, the

LRA

was a structured and hierarchical organization.

Joseph

Kony

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

Control

Altar". Below

this

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

.

Ongwen

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

combatants

who accuse

Mr

.

Ongwen

of murdering and beating

people

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

Mr

.

Ongwen’s

subordinate

combatants

followed his orders to immediately kill

people

who tried to escape, without prior consultation or direct

order

, but with a later report.

In

addition

, the

Prosecution

accuses

Mr

.

Ongwen

of having

control

over the distribution of women and girls to the

LRA

fighters. The

Prosecution

admits that

Mr

.

Ongwen

was the

victim

of the same

crime

he became a perpetrator: the

crime

of using and recruiting

children

under the

age

of fifteen

years

to participate actively in hostilities, under the

article

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

Rome

Statute

.

However

, the

Prosecution

points out that

Mr

.

Ongwen

would be fourteen

years

old at the time of the abduction, not over nine

years

old as presented by the

Defense

. It is said that the fact that

Mr

.

Ongwen

was a

victim

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

crimes

. The moral

responsibility

is necessary. The criminal process in the

ICC

does not focus on the goodness nor on badness of

people

, but on the criminal

acts

practiced by them. The

Prosecution

obtained by interception recordings from the

LRA

's radio conversations by Ugandan military and security organizations.

Such

evidences

are very significant and the records would confirm the

Prosecution

's allegations, especially concerning

Mr

.

Ongwen’s

confessions of

crimes

. For these and other

evidences

, the

Prosecution

understood that he had the knowledge and the

intention

to commit the alleged

crimes

, a fact that would satisfy the mental

element

of the

crime

, under the

article

30(1) of the

Rome

Statute

.

Furthermore

, the material

element

(the action itself) established by the same

article

above would be satisfied because the

Prosecution

provides

evidences

of

Mr

.

Ongwen’s

essential contributions to the

crimes

and the coordinated manner he acted with other perpetrators.

Finally

, the

Prosecution

concludes that the

defendant

is criminally responsible and liable for punishment for the alleged

crimes

. According to the

Prosecution

,

Mr

.

Ongwen

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

order

to prevent

crimes

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

prosecution

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

LRA

authority and he could have escaped or released

people

under his command.

In

addition

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

LRA

members

surrendered and received amnesty, but

Mr

.

Ongwen

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

Prosecutor

, 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

,

Mr

.

Ongwen

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

) of the

Rome

Statute

, for

crimes

against humanity and

war

crimes

, which have already been mentioned in

this

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

responsibility

of former

child

soldiers before the

ICC

.

This

analysis must be critical, on a

case

-by-

case

basis in

order

to achieve justice. In armed conflicts, many

children

are coerced for

years

in paramilitary groups, even after becoming adult

combatants

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

age

, personality, education, maturity, the place of

war

, beliefs, religion, level of poverty and

violence

, their length of service in the

group

, etc. Each person’s unique experience as a

child

soldier

must be taken into consideration by the

Court

. In a hypothetical

situation

in the

ICC

,

for example

, a former

child

soldier

is accused of

crimes

committed at the

age

of 19.

Moreover

,

this

defendant

was hypothetically abducted by an extreme violent

group

of rebels when he was only 6

years

old and his parents were killed by

this

group

. During his 13

years

of service, he was abused, exposed to

violence

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

this

group

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

evidences

demonstrate that accused acted as a mere

soldier

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

Hence

, the

defendant

’s criminal

responsibility

would be more likely to be excluded since

this

hypothetical

case

describes a more favorable

situation

to the accused if compared to

Mr

.

Ongwen’s

. As to

Dominic

Ongwen

case

, analyzing both parties’

arguments

and the non-confidential

evidences

presented in

Court

, it is reasonable to say that the

Prosecution

’s

arguments

and

evidences

are stronger and solider rather than the

Defense

’s. The

circumstances

are not favorable to

Dominic

Ongwen

for many reasons. The

defendant

grew up in the

LRA

and was not an ordinary

soldier

throughout his journey. He achieved a

position

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

the

group

, and to give orders.

Mr

.

Ongwen

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

LRA

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

combatants

to proceed with

crimes

. These

evidences

show the mental

element

of the

crime

: the

intention

to commit them with knowledge of the

circumstances

and the consequences. As the

prosecutor

Fatou Bensouda points out,

Dominic

Ongwen

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

child

soldier

.

However

, 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

”.

This

would be a reasonable conclusion about the

case

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