JiC is thrilled to welcome Mark A. Drumbl for this penultimate post in our symposium on the trial of Dominic Ongwen and the prosecution of former child soldiers. Mark is the Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee School of Law. To read the other contributions to the symposium, see here.

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

On March 23, 2016, ICC Pre-Trial Chamber (PTC) II issued its decision confirming charges against Dominic Ongwen. PTC II confirmed many charges, including for sexual and gender-based crimes. Ongwen will be tried for some crimes that he had himself endured. These include the war crime of cruel treatment, conscription and use as a child soldier, and the crime against humanity of enslavement.

Ongwen was abducted into the Lord’s Resistance Army (LRA) at the age of 9 while walking home from school. He was bullied, brutalized, and indoctrinated as a child soldier. He rose through the ranks. He ascended to the upper echelons of power, although these remained tightly controlled by LRA leader Joseph Kony.

Irrespective of how high he ascended, however, Ongwen’s point of entry remains fixed as a young, kidnapped, orphaned, and abused child. Ongwen’s defense team invoked this point of entry in its submissions. Defense counsel did so to make two specific legal points. First, that the ongoing and continuous nature of the crime of child soldiering means that Ongwen left the LRA – nearly thirty years later – still as a child soldier and, thereby, that he should be entitled to the evacuation of individual criminal responsibility that hortatorily inheres in the international legal regime that protects child soldiers. Second, the defense team submitted that coming of age in the LRA amounts to a kind of institutionalized duress that excludes criminal responsibility under Rome Statute article 31(1)(d) rather than just mitigating sentence. According to the defense, Ongwen “lived most of his life under duress (i.e. from the age of 9.5 years old)” and his “so-called rank was demonstrative of one thing: that he was surviving better than others while under duress”.

When making both arguments, the Ongwen defense team extensively (yet unsuccessfully) invoked the findings of Dr. Elisabeth Schauer, a court-appointed expert whose testimony on the dissociation and trauma arising out of the child soldiering experience had been dispositive to the Lubanga case. In Lubanga, child soldiers were the victims and Lubanga the adult perpetrator; in Ongwen, the accused is a former child soldier and many of his alleged victims were children at the time.

PTC II perfunctorily dismissed Ongwen’s first argument without providing any reasons. PTC II also dismissed the second argument, although not quite as perfunctorily. One judge, moreover, will append in due course a separate, concurring opinion.

Reasonable minds can disagree as to whether the defense arguments have merit. The point of my commentary is not to revisit these arguments. Grounds for excluding responsibility may, moreover, be reassessed at trial where the burden on the prosecutor is higher than at the confirmation of charges stage. Nor is the point of my commentary to suggest how (and where) a Trial Chamber might hypothetically assess these arguments.

Instead, my point is to emphasize that international criminal law should proceed in consistent and predictable ways. Here, PTC II slipped. Its understanding of the agency of actual and former child soldiers in Ongwen departs from the understanding previously deployed by the Lubanga Trial and Appeals Chambers, in particular in the sentencing judgments.

Lubanga cast the linkage between the past as a child soldier and the present as a former child soldier as linear and continuous. The child soldiering experience was constructed as ongoing and assured: it rendered the children as victims damaged for life, with their reality today as derivative of their previous suffering. Once a child soldier in fact, always a child soldier in mind, body, and soul. In Ongwen, however, the linkage between the accused’s past as a child soldier and his present as a former child soldier was seen as discontinuous and contingent.

In his opening statement in the Lubanga trial, then Chief Prosecutor Luis Moreno-Ocampo portrayed the former child soldiers as indelibly wounded and recurrently traumatized.:

They cannot forget the beatings they suffered; they cannot forget the terror they felt and the terror they inflicted; they cannot forget the sounds of their machine guns; they cannot forget that they killed; they cannot forget that they raped and that they were raped.

The 2012 Lubanga sentencing judgment (confirmed on appeal in December 2014) had prioritized and excerpted from Dr. Schauer’s expert submissions that the Ongwen defense team sought unsuccessfully to invoke. Elements of Dr. Schauer’s work pertinent to the Lubanga sentencing analysis include her submissions that “children of war and child soldiers […] often suffer from devastating long-term consequences of experienced or witnesses acts of violence” and that conflict experiences “can hamper children’s healthy development and their ability to function fully even once the violence has ceased.” Trial Chamber I relied upon Dr. Schauer’s written submissions and testimony to determine that “a significant number of the children who were interviewed had developed the debilitating mental health condition known as post-traumatic stress disorder.” According to Dr. Schauer, “the post-traumatic stress tends to persist, possibly for the remainder of the individual’s life.” Trial Chamber I also excerpted from her written submissions that former child soldiers “have little skills to handle life without violence,” that they show “ongoing aggressiveness within their families and communities even after relocation to their home villages,” and that “psychological exposure and suffering from trauma can cripple individuals and families even into the next generations.” Trial Chamber I also noted how, according to Dr. Schauer, children who have “been child soldiers for a significant period of time usually do not demonstrate ‘civilian life skills.’”

In Ongwen, however, a different narrative emerges. This narrative contemplates agency, choice, and action. In response to the defense’s emphasis on Ongwen’s entry into the LRA as an abducted child, PTC II held that “the circumstances of Ongwen’s stay in the LRA […] cannot be said to be beyond his control… [.]” PTC II concluded that “escapes from the LRA were not rare.” It underscored that Ongwen “could have chosen not to rise in hierarchy and expose himself to increasingly higher responsibility to implement policies.” It added that the evidence demonstrates that Dominic Ongwen “shared the ideology of the LRA, including its brutal and perverted policy with respect to civilians”. PTC II noted that Ongwen could “have avoided raping” forced wives, “or, at the very least, he could have reduced the brutality of the sexual abuse”.

PTC II thereby shied away from the Lubanga narrative of the pernicious, ongoing effect of being compelled as a child into a violent armed group and socialized therein. Whereas the defense sought to link Ongwen’s conduct as an adult to his horrid experiences as a child, PTC II only examined his agency as an adult – as if he had never been a child, let alone a child in the LRA. In rejecting the duress submissions in Ongwen, PTC II elides Ongwen’s status as a former child soldier. It’s as if he lost that status, or ceded it. Hence, there is a proper way to be a victim. Victimhood is contingent, so to speak, even aleatory.

In truth, the Ongwen narrative reflects the diverse experiences of actual and former child soldiers and the complexities of survival and social navigation in invidious circumstances. After all, problematic essentialisms abound in the Lubanga criminal judgments. I have discussed these at length here and here.

That said, in the push to confirm charges against Ongwen, PTC II invokes language that should perturb child rights activists. The Ongwen confirmation of charges decision conflicts with a tenet of post-conflict rehabilitation and reintegration. This tenet approaches all persons (regardless of age) who had become associated with armed groups and armed forces while under the age of 18 as former child soldiers and accords them entitlements and treatment that hinge upon this status.

The contrast between Ongwen and Lubanga vivifies how narratives of agency, choice, and constraint may become instrumentalized by judges to suit the prosecutorial impulse. This contrast additionally reflects the clumsiness of the criminal law in conceptualizing child soldiering specifically and, in Ongwen’s case, victim-perpetrator circularity generally.