Barrie Sander continues our symposium on the trial of Dominic Ongwen and the prosecution (or in this case, defence) of former child soldiers. Barrie is a Ph.D. Candidate at the Graduate Institute of International and Development Studies (IHEID). His research focuses on conceptions of justice and the construction of historical narratives in international criminal courts. Barrie is also a regular contributor to JiC. You can find his other posts here. This symposium was inspired by Barrie’s efforts to start a debate and dialogue on the issues and dilemmas raised by the Ongwen trial.

Dominic Ongwen shortly after he was transferred from the the African Union Regional Task Force to the Uganda People’s Defence Forces.

Amidst the flurry of activity within the field of international criminal justice over the past few weeks, Dominic Ongwen – former child soldier and adult commander within the Lord’s Resistance Army (LRA) – became the first individual in the history of the International Criminal Court (ICC) to have charges confirmed against him of which he is also a victim.

The story of Dominic Ongwen has been well-documented within existing scholarship and media accounts of the conflict in northern Uganda. Abducted at the age of nine and trained to become a child soldier, Ongwen grew up to become a notorious commander within Joseph Kony’s LRA. After falling into the hands of Seleka rebels in the Central African Republic in January 2015, Ongwen was taken into US custody and promptly transferred to the ICC in The Hague.

From its inception, the idea of prosecuting Ongwen at the ICC has divided opinion both within Uganda and beyond. For some, since there is little difference between Ongwen and other former child soldiers who have been granted amnesties for their crimes, it seems unjust to single out Ongwen for prosecution. This view feeds into a broader critique of the ICC, which queries whether justice can ever be done within a judicial institution whose prosecutorial selectivity is consistently aligned with the dictates of State power. For others, Ongwen’s prosecution at the ICC is not only welcome but necessary. Adherents to this view caution that failing to prosecute Ongwen would serve as a licence for those in similar circumstances to carry out acts of violence with impunity.

One of the complexities of Ongwen’s case is that his victim-perpetrator status challenges the binary coding of international criminal law, which, as Mark Drumbl has argued, “derives its energy from, and in turn disseminates polarities of guilt/or innocence, capacity/or incapacity, adult/or child, and victim/or perpetrator”.

This dimension of the case rose to the fore during the Confirmation of Charges proceedings when Ongwen’s Defence attempted to rely on their client’s tragic background to argue that the case against him should be dismissed. In particular, the Defence raised two arguments, both of which were ultimately rejected by the PTC.

The Defence first argued that Ongwen should benefit from the legal protection afforded to child soldiers up to the moment of his leaving the LRA in January 2015, almost 30 years after his original abduction, and that such protection should include the exclusion of his individual criminal responsibility.

The Defence emphasised that the crime of conscripting child soldiers is a continuous crime and therefore did not come to an end when Ongwen turned 15 years of age. Forced to witness and perform unspeakable acts as a child, Ongwen was psychologically broken down and disconnected from the social construct of normal society in northern Uganda. Since Ongwen remained locked within this environment throughout his life, the Defence contended that the age of 18 years old, which serves as the marker for adulthood and criminal responsibility before the ICC, has little relevance for someone in his situation. In particular, it would be contrary to notions of justice to use international humanitarian law against Ongwen when that very same body of law had failed to protect him in the first place.

In response, the PTC gave short shrift to this argument, simply observing that it was entirely without legal basis and would therefore not be entertained further.

In its second argument, the Defence argued that Ongwen’s responsibility should be excluded on the ground that he acted under duress within the meaning of Article 31(1)(d) of the ICC Statute. Once again, the PTC rejected the Defence’s argument, this time on multiple grounds.

First, the PTC argued that the threat alleged by the Defence – the possibility that Ongwen would later be subjected to disciplinary measures – had not been “imminent”. In this regard, the PTC emphasised 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”.

Second, the PTC argued that Ongwen’s stay within the LRA – which the Defence had claimed to be the source of the threat – could not be said to have been “beyond his control”. For this purpose, the PTC pointed to evidence that escapes from the LRA were not rare and that Ongwen could have chosen not to rise within the hierarchy and expose himself to increasing levels of responsibility within the organisation.

Finally, the PTC argued that the Defence had failed to demonstrate that Ongwen had acted “necessarily and reasonably” to avoid the alleged threat and had “not intended to cause a greater harm than the one sought to be avoided”.  By way of example, the PTC observed that even if Ongwen could not have avoided accepting forced wives, “he could have avoided raping them, or, at the very least, he could have reduced the brutality of the sexual abuse”.

As this analysis suggests, the Defence and PTC each adopted contrasting narrative perspectives of Ongwen’s behaviour. Whereas the Defence viewed Ongwen’s story as a narrative about inevitability, involving an individual caught up in events beyond his control, the PTC depicted Ongwen’s story as a narrative about choice, involving a moral agent who had genuine opportunities to act otherwise than he did notwithstanding his devastating upbringing.

On the basis of the law set out in the ICC Statute, the PTC’s narrative perspective will come as little surprise to international criminal lawyers. The more interesting question is whether this perspective is satisfactory.

In grappling with this question, we can usefully refer to an observation made by the late Antonio Cassese that “law is based on what society can reasonably expect of its members”. Importantly, reasonableness can be understood in a variety of ways, ranging from an objective standard to more particularised standards that give greater consideration to an individual’s personal characteristics. In addition, it is possible to distinguish between weak and strong standards of reasonableness. A weak standard of reasonableness holds individuals accountable to what an “ordinary person” would have done, namely someone who “thinks, feels and behaves in an average sort of way”. A strong standard of reasonableness looks beyond what an ordinary person would have done in a particular situation to what an ordinary person could have done. In other words, the strong standard of reasonableness is aspirational, holding individuals accountable to standards of behaviour that even if an ordinary person would fail, we can all still reasonably hope to meet.

Applied to the circumstances of Ongwen’s case, the question I wish to pose is whether, applying either a strong or weak standard of what society can reasonably expect of individuals who have been subjected to harsh coercive childhoods within armed groups, a new defence should be recognised within international criminal law to excuse the adult criminal conduct of such individuals. There is no clear answer to this question and, perhaps unsurprisingly, opinion is divided.

Ziv Bohrer, for example, has argued that a brainwashing or coercive-indoctrination defence should be recognised within international criminal law to excuse the conduct of individuals “when harsh coercive means (such as forced drug use, torture, or abduction and indoctrination into military service at a young age) have been used as part of a comprehensive attempt to indoctrinate a person”. Importantly, such a defence would excuse criminal actions committed “even after the physical threat of harm has lifted, the forced use of drugs has stopped, or the abducted, indoctrinated child soldier has turned eighteen”. The underlying rationale for this defence is that it would be unreasonable to hold such individuals criminally responsible for their conduct given the strong sociopscyhological coercion to which they have been exposed.

By contrast, Lucia Seyfarth has argued that the extreme violence experienced by former child soldiers and their consequent disrupted development and failure to cultivate a functioning sense of morality only warrants recognition as a mitigating factor in sentencing. The basis for this view is that, despite their difficult upbringing, it is still reasonable to hold such individuals criminally responsible for their conduct, it being sufficient to reflect the impact of their traumatic childhood through the mitigation of their sentence.

My personal view is that the latter approach is to be preferred. Despite the devastating nature of their upbringing, former child soldiers are not devoid of agency and confront many choice points along the road to committing atrocities as adults. Indeed, as the PTC emphasised, many faced with a similar situation to Dominic Ongwen chose a different path, opting to escape from the LRA rather than rising up its hierarchy.

Importantly, denying a full defence in these circumstances should not preclude the development of a more compassionate international criminal law for those convicted, however self-contradictory such a notion may sound. In particular, the ICC can still rise to the expressive challenges presented by victim-perpetrators by injecting greater nuance and context into their sentencing determinations.

Since there is no possibility for partial defences resulting in conviction for lesser offences within the field of international criminal law, sentencing has a heightened expressive importance in international criminal proceedings. By recognizing a desert-based mitigating circumstance for individuals subjected to particularly coercive childhoods within armed groups, the ICC can humanize victim-perpetrators, moving beyond depicting such individuals in uniform terms as the causes of mass violence towards examining the extent to which they are also victims of circumstance.