JiC’s symposium on the trial of Dominic Ongwen and the prosecution of child soldiers continues with this contribution by Alex Whiting. Alex is a Professor of Practice at Harvard Law School where he focuses on international and domestic prosecution issues. He previously worked as a prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia. For a list of the other contributions to the symposium, see here.

Dominic Ongwen during pre-trial proceedings at the International Criminal Court (Photo: ICC)

The title of this post is admittedly a little misleading. In one way, of course, the prosecution of anyone by an international court for war crimes and crimes against humanity is an extraordinary, not to mention challenging, event. But in all other respects, the case against Ongwen is straightforward. In particular, the fact that Ongwen was himself abducted into the Lord’s Resistance Army at the age of 12 (the defense alleges it was at age 9.5), and made into a child soldier, before allegedly committing crimes himself against others between the ages of 27 and 30, changes nothing about whether he is legally responsible for those crimes. That Ongwen was a victim before becoming a perpetrator may be ironic and sad. It may be an interesting story. And it may be paradoxical and/or depressing. But it is not a legal defense to the crimes charged against him. At most, it may be a consideration at sentencing if Ongwen is convicted, but even here I have my doubts.

Ongwen is charged with 70 counts of war crimes and crimes against humanity, including murder, attempted murder, torture, rape, forced marriage, sexual slavery, forced pregnancy, persecution, cruel treatment, other inhumane acts, outrages upon personal dignity, enslavement, attacks against the civilian population as such, conscription of children under the age of 15, use of children under the age of 15 in hostilities, pillaging and destruction of property.

Some of these crimes are charged as war crimes, some as crimes against humanity, and some as both. Ongwen is accused of committing certain crimes himself as a direct perpetrator – specifically some of the charges of rape, torture, forced marriage, sexual slavery, enslavement and forced pregnancy – while it is alleged he committed other crimes with or through others.

At the confirmation hearing, Ongwen’s defence argued that, because he was a victim of crimes as an abducted and coerced child soldier, he cannot be convicted of the grave crimes he is alleged to have committed almost a decade after he turned 18, the minimum age of responsibility under the Rome Statute (Article 26). The Pre-Trial Chamber correctly brushed aside these arguments.

First, Ongwen argued that because he did not leave the LRA until 2015, at age 30, he must be considered a “child soldier” until that time, and therefore cannot be prosecuted. In this regard, the defense argued that child soldiers are psychologically broken down, desensitized and dehumanized. That is certainly true as a general matter, and may even be true in Ongwen’s case, but it is simply not a defense to committing crimes oneself.

To the extent that there exist protections for child soldiers in international law and the Rome Statute, they are tied to age and disappear when the individual legally becomes an adult. Further, the Rome Statute does not recognize as a defense that the accused developed a criminal state of mind because of his or her past experiences. Nor should it. It is not uncommon that defendants at international criminal tribunals, or in domestic criminal courts, have themselves been the victims of crime, or have suffered traumatizing experiences in their past.

Ongwen’s story is simply a variation on this common reality because he was apparently the victim of one of the same crimes he is alleged to have committed: the conscription of child soldiers. But even this variation is not that unusual: it is well known that many who commit abuse or violence on others have themselves been the victim of abuse or violence. Unless one’s past experiences rise to the level of duress (addressed in the next paragraph) or result in a mental disease or defect that destroys the accused’s “capacity to appreciate the unlawfulness or nature of his or her conduct,” something Ongwen has not alleged, then the law imposes an undiluted obligation to refrain from committing crimes against others. There is simply no license for the victims of crime to victimize others.

Ongwen’s second argument is more firmly grounded in the law, but is in tension with his first claim and fails as a factual matter. He correctly argues that under Article 31(1)(d) of the Rome Statute, duress can be a complete defense to crimes alleged under the Statute. But this defense is extremely narrow, as it should be. This line of defense is only available if the accused commits the crime under “duress resulting from a threat of imminent death or of continuing or imminent serious bodily injury against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.”

The narrow scope of the duress defense underscores the fundamental problem with Ongwen’s first claim. If one could argue that past suffering justifies criminal conduct – without any showing of the severity of the threat, its imminence, or the necessity of the response – then there would be no need to include a duress defense in the Statute. In other words, the requirements of the duress defense define what is a permissible defense, but also what is not a permissible defense (e.g., Ongwen’s first argument).

While Ongwen’s second argument is legally plausible, factually it is not. Although the Pre-Trial Chamber acknowledged that Ongwen faced discipline within the LRA if he did not accede to crimes, he failed to show that he was threatened with imminent risk of death or seriously bodily injury, or that the alleged crimes were necessary or proportional to the threats made against him. It must be remembered here that Ongwen is alleged to have committed crimes over a three-year period, an awfully (if not prohibitively) long time for one to act under the legal notion of duress. Moreover, the Pre-Trial Chamber noted that during this period Ongwen did not escape from the LRA, as did many other child and former child soldiers, but instead rose in the hierarchy of the organization.

While the law regarding culpability is sharp-edged – one either meets the duress definition or not; “sort of” meeting it is not good enough – the law regarding sentencing is not. Article 78 of the Statute requires the Trial Chamber to consider “the individual circumstances of the convicted person” and Rule 145 of the Rules of Procedure and Evidence specifically instruct the judges to take into account “circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as … duress.”

Therefore, if Ongwen is convicted of some or all of the charges he is facing, his past experiences as a child soldier victim may eventually be relevant at his sentencing. Even here, however, I am skeptical, and it should not be assumed that he would receive a substantial, or even any, discount for his past victimization. It will depend on the facts to be sure, both of the conviction and his past, but if Ongwen is convicted of even some of the range of crimes with which he is charged, a claim of prior victimization may not get him very far. It is noteworthy that he is alleged to have committed extraordinarily serious and violent crimes long after he became an adult and over a long period of time. If these allegations are substantially proven at trial, his past is not likely to carry significant weight when sentence is imposed.

The Pre-Trial judges were not distracted by Ongwen’s past, and I do not expect that the Trial judges will be either. The focus will be only on whether the prosecution can prove the alleged crimes beyond a reasonable doubt. If it does, Ongwen will be found guilty, regardless of his own past status as a child soldier. Ongwen will have more of an opportunity to press his claims about his victimization at sentencing, but even there he may discover that they will not get him very far.