Substantive Law Defences before the ICC:
The ‘Child Soldier Defence’ and its Effects on the
Ongwen Trial
Student: Despoina Eleftheriou
Email: despoina.eleftheriou@student.uva.nl
Student No.: 12238902
Mastertrack: International Criminal Law (Joint Program)
Supervisor: Prof. H. van der Wilt & Prof. Lori F. Damrosch
Date of submission: 28 June 2019
Acknowledgements
The present thesis is the last chapter of a year full of new experiences and challenges. A year that changed me, not only as a professional but most importantly as a person. Even though this thesis is the result of my research and my work, it would not be possible without the support of certain people whom I am lucky to have in my life.
First and foremost, I would like to thank my wonderful parents; without their unconditional love and support, I would not be able to achieve anything in life. They are my guiding light, the people who will always believe in me and the people I will always look up to. Second, I would like to thank Kostis for being there for me from the very beginning, no matter the distance. I will always be grateful for his love, support and advice which helped me get through this programme and lifted me up during my darkest days. I would also like to thank the rest of my family and my friends, old and new ones, for their encouragement and moral support during this year.
Last but not least, I would like to thank prof. Harmen van der Wilt and prof. Lori F. Damrosch for giving me the opportunity to write about this topic and being my supervisors. Their feedback and knowledge which they kindly shared with me helped me complete this paper and I sincerely hope that the end result will not disappoint them.
Despoina Eleftheriou Amsterdam, 27 June 2019
Abstract
Upon reading Ongwen’s Defence brief, one cannot help but notice how his Defence team uses his experiences as a child soldier in order to justify the crimes he committed during his time with the LRA. This alternative approach to victimhood and the discussion it has given rise to were the main reasons behind the selection of the thesis’ topic.
The purpose of the present thesis is to explore how victimhood may serve as a defence before the International Criminal Court, especially in cases where the perpetrator was once a victim of the crimes he or she is being charged with. Experience and research show that the problem of victims turning into perpetrators is the rule in every single case of child soldiers, therefore it is high time for the ICC to address this issue and set a precedent with respect to their treatment. The main research question is whether one’s traumatic childhood can be accepted as an autonomous defence or has to be linked to one of the existing defences found in the Rome Statute. The extensive research that was conducted in order to tackle this question was theoretical, combining both academic sources and relevant case law, with the aim to reflect how theory and practice view certain aspects of the topic in question. As a result, certain parts of the thesis are mainly descriptive. Furthermore, the evaluation of the so-called ‘child soldier defence’, as it was presented during the confirmation of charges, revealed the reasons why this defence, along with duress, were dismissed by the PTC, while the examination of the rotten social background in connection to mental incapacity and diminished mental responsibility uncovered alternative defences that could have been proposed in the present case.
In conclusion, from the research that has been conducted it is evident that the ‘child soldier defence’ cannot act as an individual defence, leading to Ongwen’s exoneration. Such an argument would have better chances to succeed if it was presented through the lens of the rotten social background and then used as the foundation for another defence, such as mental incapacity. In the present case, the Court will likely accept Ongwen’s background as a mitigating factor during sentencing, rather than as a defence.
Table of contents
Acknowledgements………
i
Abstract………... ii
List of abbreviations………... iv
1. Introduction………
1
2. Background of the Ongwen case……….………...
3
2.1 Facts of the case………
3
2.2 Decision on the confirmation of charges………..
4
3. Child soldiers………..
6
3.1 Definition……….………
6
3.2 Criminal responsibility………...……….
9
4. The ‘child soldier defence’ under the Rome Statute……….. 16
4.1 The ‘rotten social background’ argument in the context of child soldiers………... 17
4.2 Duress………... 19
4.3 Insanity or mental incapacity……… 25
4.4 Diminished mental responsibility: a new defence mechanism……….. 27
5. Mitigating factors………...……… 33
6. Concluding remarks………..……….. 36
List of abbreviations
CDF Civil Defence Forces
CRC UN Convention on the Rights of the Child
ELN Ejército de Liberación Nacional (National Liberation Army of Colombia)
FARC Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed
Forces of Colombia)
IAC International Armed Conflict
ICC International Criminal Court
ICC RPE International Criminal Court Rules of Procedure and Evidence
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the former Yugoslavia
ICTY RPE International Criminal Tribunal for the former Yugoslavia Rules of Procedure
and Evidence
IHL International Humanitarian Law
LRA Lord’s Resistance Army
LTTE Liberation Tigers of Tamil Eelam
NIAC Non-International Armed Conflict
PTC Pre-Trial Chamber
RS Rome Statute
RUF Revolutionary United Front
SCSL Special Court for Sierra Leone
“Each of us sin in words, deeds, and thoughts. Each of us sin in different ways. If I committed a crime through war, I am sorry. In my mind, I thought war was the best thing. Even up to now, I dream about war every night. But if they don’t want to forgive me, I leave it in their hands. I have become like a lice, which you remove from your hair or waist and kill without any resistance”. – Dominic Ongwen1
1. Introduction
Neither the use of child soldiers nor the phenomenon of victims who turned into perpetrators is new in International Criminal Law. Children traditionally participated in armed conflicts, either voluntarily or forcibly; the FARC and ELN in Colombia had children in their ranks, the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) in Sri Lanka and the Khmer Rouge in Cambodia also used child soldiers. The same pattern was followed in other countries, such as in Burma, Timor-Leste, Bangladesh, Laos, Pakistan, Thailand, the Philippines, Kashmir, Sierra Leone, Iran, Iraq, Afghanistan and Libya. Individuals have also been prosecuted by international criminal tribunals for the use and conscription of child soldiers, namely Thomas Lubanga Dyilo, who has been found guilty of the said crime and has been sentenced to a total of 14 years imprisonment. In the case of Uganda, the number of children abducted by the Lord’s Resistance Army (hereinafter LRA) is estimated between 25,000 to 38,0002 and at some points 90% of LRA’s members were minors. Taking into
account these facts, one may reasonably wonder what distinguishes Dominic Ongwen's case from any other case where children participated in armed conflicts.
Ongwen’s case is unique because this is the first time an individual, who was once a victim of the crimes he is being accused of, is prosecuted by the International Criminal Court (hereinafter ICC). His abduction by the LRA and the suffering he has endured have become a focal point in his defence. During the hearing for the confirmation of charges, his Defence
1 Moses Akena, ‘Ongwen speaks out on why he quit LRA’, (The Daily Monitor, 19 January 2015), <https://www.monitor.co.ug/News/National/Ongwen-speaks-out-on-why-he-quit-LRA/-/688334/2593818/-/5ox5ac/-/index.html> accessed 21 May 2019.
2 Phuong N. Pham, Patrick Vinck, and Eric Stover, ‘The Lord’s Resistance Army and Forced Conscription in Northern Uganda’ (2008) 30 Hum. Rts. Q. 404, 404 (reporting on the period from 1986 to 2006).
team presented two main arguments; first, they suggested that Ongwen should benefit from the international legal protection afforded to child soldiers up to the moment of his leaving the LRA, instead of being held accountable for his actions as the Sinia Brigade commander in Uganda. The second argument was that of duress. The Pre-Trial Chamber (hereinafter PTC), however, did not accept any of these defences, indirectly challenging the general view that child soldiers who committed crimes should be treated as victims and not as perpetrators. The main question in Ongwen’s case is whether he should be treated as a victim, a perpetrator or both, with each solution presenting different challenges. The ones who side with the opinion that he is a victim maintain that the Ugandan government failed to protect him when he was abducted by the rebels. Others focus on the gravity of his crimes and want to see him punished for the suffering he has caused as an LRA commander. His story, however, shows that he is both a victim and a perpetrator and the lines distinguishing the one side from the other are blurred.
Pursuant to the Pre-Trial Chamber’s decision on the confirmation of charges, the present paper will focus on whether the ‘victim turned into villain’ narrative can serve as a defence and affect the outcome of the trial. The first part presents the facts of the case with the aim to provide a better understanding of the factual and legal background that led to the dismissal of the child soldier defence by the PTC. The second part focuses on the definition of child soldiers and the discussion regarding their criminal responsibility. This leads to the main part of the present research, i.e. the evaluation of the so-called ‘child soldier defence’ in light of the Rome Statute. To be more precise, the paper analyses the so-called ‘rotten social background’ argument and examines its connection with the phenomenon of former child soldiers turning into perpetrators. Τhe said analysis is followed by the examination of the rotten social background in connection with the existing defences under the Rome Statute, namely duress and insanity, as well as the notion of diminished criminal responsibility. Finally, the last part of the paper examines the possible mitigating factors which may be taken into account in the present case.
2. Background of the Ongwen case
2.1 Facts of the case
Before diving into the child soldier defence, it is necessary to present the factual background of the case, in order to provide the context of the conflict and facilitate the understanding of the case.
The investigation in Uganda started after the state’s referral to the ICC with regards to alleged war crimes and crimes against humanity committed in the context of a non-international armed conflict between the national authorities and the Lord’s Resistance Army. The alleged crimes include the war crimes of murder, cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, rape and forced enlistment of children and the crimes against humanity of murder, enslavement, sexual enslavement, rape and inhumane acts of inflicting serious bodily injury and suffering. Pursuant to these allegations, the Pre-Trial Chamber issued arrest warrants for the top members of the LRA, however many of them remain at large, namely Joseph Kony, the undisputed leader of the LRA, and Vincent Otti, who is reportedly dead.
Dominic Ongwen was allegedly the Brigade Commander of the Sinia Brigade of LRA and surrendered himself in January 2015. Many of the details of his life and his identity are still contested, such as his age or his real name3. Ongwen was conscripted into the LRA as a
child soldier presumably at the age of 9.5 years old, after his abduction by LRA militiamen while he was on his way to school. His Defence maintains that his mother was killed the same day by LRA forces who shot her as she was searching for her child, while his father is “said to have been killed by the National Resistance Army (modern-day UPDF) because they believed him to be a rebel fighter”4. As the years went by, Ongwen rose through the ranks of the LRA, thanks to his operational performance, and was appointed commander to direct the LRA forces that were subordinate to him5. His high-ranking position is the reason he is being prosecuted by the ICC since he is considered one of those most responsible for the crimes committed in Uganda by the members of the LRA.
3 Some allege that Dominic Ongwen is not his real name, but a name he made up after his abduction so that the rebels would not go after his family, see Mark A. Drumbl, ‘Victims Who Victimise’ (2016) 4 Lond. Rev. Int. Law 217, 235-236.
4 The Prosecutor v. Dominic Ongwen, (Further Redacted Version of Defence Brief for the Confirmation of Charges Hearing), ICC-02/04-01/15 (3 March 2016), para. 2.
5The Prosecutor v. Dominic Ongwen, (Decision on the Confirmation of Charges) ICC-02/04-01/15, (23 March 2016), para. 58.
2.2 Decision on the confirmation of charges
Based on the evidence presented by the Prosecutor, the Pre-Trial Chamber confirmed the charges against Ongwen for war crimes and crimes against humanity, namely attacks against the civilian population, murder and attempted murder, torture, cruel treatment and other inhumane acts, enslavement, pillaging, persecution, outrages upon personal dignity, destruction of property, conscription and use of child soldiers, as well as sexual and gender-based crimes including rape, sexual slavery, forced marriage and forced pregnancy6.
As regards the modes of liability, the judges of the PTC concluded that Ongwen “pursuant to a common plan with other senior LRA leaders, undertook action which was essential for the commission of crimes, and that he contributed to these crimes not only personally but also through the LRA fighters under his command”7. As a result, his individual criminal responsibility stems from Articles 25(3) (a) (indirect perpetration and indirect co-perpetration), 25(3) (b) (ordering), 25(3) (d) (i) and (ii) and 28(a) RS8 (command responsibility).
The Defence raised certain grounds to exclude Ongwen's individual criminal responsibility, namely his abduction and conscription into the LRA as a child soldier and duress. With respect to the first argument, Ongwen's Defence team submitted that he should be protected as a child soldier pursuant to the international legal standards and that this protection should extend up to the moment of his leaving the LRA, i.e. thirty years after his abduction. As a result, he should not be held accountable for the crimes he may have committed during his time at the LRA. The PTC, however, laconically dismissed that argument stating that it lacks legal basis9.
The second argument advanced by the Defence was that of duress (Art. 31 para. 1(d) RS); Ongwen had no other choice but to follow Joseph Kony’s orders and commit these crimes, otherwise he would be subjected to harsh disciplinary measures. The duress under which Ongwen was acting was enhanced by the complete indoctrination he endured by the moment of his abduction. Starting off with the procedural aspect of this argument, the PTC noted that there is no rule prohibiting duress from being raised as a defence during the confirmation of charges. Nevertheless, such an argument can lead to the non-confirmation of charges only
6 Idem, 71-104. 7 Idem, para. 70.
8 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), (17 July 1998). 9 Ibid n. 5, para. 150.
when it is supported by the necessary evidential background, otherwise, it must be examined during a trial. As regards to the substance of this defence, the PTC held that the disciplinary measures Ongwen would face as a result of his disobedience to Kony’s orders cannot possibly amount to “a threat of imminent death or of continuing or imminent serious bodily harm”, as prescribed in Art. 31 para. 1(d) RS. Additionally, Ongwen not only did not escape the LRA, as others did but chose to rise in hierarchy and undertake more responsibility. This shows, according to the PTC, that he shared the LRA's ideology and was willing to adopt its brutal and perverted policy towards the civilian population. As regards to the necessity and proportionality of his actions, the PTC found that Ongwen did not act in conformity with these two principles, as it is evident from his ruthless attacks against the civilian population10.
The so-called ‘child soldier defence’ will be the focal point of the present paper and will be examined both as a possible defence and as a mitigating factor in the following sections.
3. Child soldiers
3.1 Definition
Pursuant to the Cape Town Principles11, a child soldier is considered “any person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers, and those accompanying such groups, other than purely as family members. It includes girls recruited for sexual purposes and forced marriage”. This definition not only includes children who take direct part in hostilities but also children who serve in different positions the armed forces or the armed group that has recruited them. A similar definition can be found in the 2007 Paris Principles12, where the drafters chose the term “a child associated with an armed force or an armed group” in order to better reflect the inclusivity of the above-mentioned definition. Both these instruments are non-binding but enjoy widespread recognition. Consequently, a former child soldier is a minor who was associated with armed forces or armed groups irrespective of whether he or she has come of age at the time of his/her release, escape or rescue.
Both definitions refer to age as the decisive factor for a person’s classification as a child soldier, since “the line between lawful recruitment and unlawful recruitment is drawn based solely on age, under the Rome Statute as elaborated upon by the Elements of the Crimes13, not on any act of the child”14. The reason why a clear age limit is set in order to determine
whether a person is a child or not is legal certainty. Some cultures have a customary understanding of childhood and adulthood15; for example, in Acholi culture, adolescents are not always considered children16. Such cultural differences create ‘grey areas’, therefore a
11UNICEF, ‘The Cape Town Principles and Best Practice on the Prevention of Recruitment of Children Into the Armed Forces and Demobilisation and Social Reintegration of Child Soldiers in Africa’, adopted by the participants in the Symposium on the Prevention of Recruitment of Children into the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa, organized by UNICEF in cooperation with the NGO Sub-group of the NGO Working Group on the Convention on the Rights of the Child, (Cape Town, 30 April 1997).
12 UNICEF, ‘The Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups’, (Paris, February 2007).
13 International Criminal Court (ICC), Elements of Crimes, 2011.
14 The Prosecutor v. Thomas Lubanga Dyilo, (Written Submissions of the United Nations Special Representative of the Secretary-General on Children and Armed Conflict), ICC-01/04-01/06-1229-AnxA (18 March 2008), para. 10.
15 Integrated Disarmament, Demobilization and Reintegration Standards (IDDRS), ‘Modules 5.30: Children and
DDR’ (2006), 24 available at
<http://unddr.org/uploads/documents/IDDRS%205.30%20Children%20and%20DDR.pdf> accessed 23 May 2019.
16 Prudence Acirokop, ‘The Potential and Limits of Mato Oput as a Tool for Reconciliation and Justice’, in Sharanjeet Parmar, Mindy Jane Roseman, Saudamini Siegrist, and Theo Sowa (eds.) ‘Children in Transitional
Justice: Truth-Telling, Accountability and Reconciliation’ (UNICEF Innocenti Research Centre and Human
universal age limit is necessary to prevent that. The 18 years of age as the defining line between childhood and adulthood is in conformity with the UN Convention on the Rights of the Child17 (hereinafter CRC), which defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier” (Art. 1 CRC). What is most important is that even if individuals have attained majority earlier, pursuant to domestic legislation, the CRC continues to apply and protects them until they reach 18 years of age. The drafters’ choice to set the age limit at 18 years is probably based on the general assumption that by that age a person’s cognitive capacity, discernment skills and neurobiological function have been fully developed, despite evidence of the contrary which shows that such development may continue beyond that age18. The same age limit was adopted with respect to recruitment by the drafters of the Optional Protocol to the Rights of the Child19, reflecting Convention 182 of the International Labour Organisation, which characterised the recruitment and use of child soldiers as one of the worst forms of child labour20. Nevertheless, such a provision has not achieved the status of customary international law21.
The above-mentioned definitions refer to children who are associated with armed forces or armed groups. There are three ways a child can become a member of the armed forces or the armed group, namely abduction or conscription through coercion or threats, voluntary participation or birth into armed forces or groups22. Abduction and voluntary participation are
the most common ways, while poverty is the common denominator in all situations referring to volitional enlistment; families may volunteer their children to join a certain group with the
17 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.
18 Jessica Schafer, ‘The Use of Patriarchal Imagery in the Civil War in Mozambique and its Implications for the Reintegration of Child Soldiers’, in Jo Boyden and Joanna de Berry (eds.) ‘Children and Youth on the Front
Line: Ethnography, Armed Conflict and Displacement’ (Berghahn Books, New York 2004), 101-102; Andrew
Mawson, ‘Children, Impunity and Justice: Some Dilemmas from Northern Uganda’, in in Jo Boyden and Joanna de Berry (eds.) ‘Children and Youth on the Front Line: Ethnography, Armed Conflict and Displacement’ (Berghahn Books, New York 2004), 136.
19 UN General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict, 25 May 2000, preamble.
20 International Labour Organization (ILO), Worst Forms of Child Labour Convention, C182, 17 June 1999, C182, Art. 3(a).
21 Gerhard Werle, Principles of International Criminal Law, (TMC Asser Press, The Hague 2005), 332.
22 Mark. A. Drumbl, Reimagining Child Soldiers in International Law and Policy, (Oxford University Press, Oxford 2012), 62.
hopes of receiving food, clothing, medical care or even protection from other armed groups or rebels23.
Abduction was the main method of recruitment adopted by the LRA in Northern Uganda, targeting specifically children and adolescents, both male and female. The reason behind that was the lack of volunteers; due to their brutal methods, for example, the murder and mutilation of civilians, the LRA lost the little support they enjoyed, hence abduction became the sole means of recruitment by the early 1990s24. As a result, groups of rebels would perform night raids on rural areas and children would go to extreme lengths in order to protect themselves from abduction, such as walking in groups from villages to larger towns in an effort to escape the rebels. These children were the so-called ‘night-commuters’ because they would often walk for hours during the night and they would sleep in schools, hospitals and even bus stations and doorways25.
In contrast, during the civil war in Sierra Leone, many children voluntarily joined the armed forces or armed groups. Besides poverty, other socioeconomic factors also played a role; child labour was a common phenomenon in Sierra Leone even during peacetime, therefore it seemed rather natural that children were used as workers during the war. This was also enforced by the patron-client relationship between adult commanders and the children since the former would provide food and protection in exchange for labour and youth combat26. Other factors were child fosterage27 and apprenticeship, with many Sierra Leonean
children joining the fighting forces with the hopes of receiving education and training28. Additionally, both the Civil Defence Forces (CDF) and the Revolutionary United Front (RUF) took advantage of the important role initiation into secret societies played in the Sierra Leonean cultural context29 and used it for their own benefit; child soldiers were recruited
23 Erin Lafayette, ‘The Prosecution of Child Soldiers: Balancing Accountability with Justice’, (2013) 63 Syracuse L. Rev. 297, 305.
24 Christopher Blattman and Jeannie Annan, ‘The Consequences of Child Soldiering’ (2010) 92 The Review of Economics and Statistics 882, 886-887.
25Phuong Pham, Patrick Vinck, Marieke Wierda, Eric Stover, and Adrian di Giovanni, ‘Forgotten Voices: A
Population-Based Survey on Attitudes about Peace and Justice in Northern Uganda’, (Berkeley Human Rights
Centre and International Centre for Transitional Justice, 2005), 16.
26 William P. Murphy, ‘Military Patrimonialism and Child Soldier Clientelism in the Liberian and Sierra Leonean Civil Wars’, (2003) 46(2) Afr. Stud. Rev. 61, 69, 70, 73–74.
27 Child fosterage is a common practice in West Africa where poorer parents send their children to be raised by other, wealthier usually extended family members for the children to receive a better education.
28 Susan Shepler, ‘The Social and Cultural Context of Child Soldiering in Sierra Leone’, (Conference paper), Conference: Techniques of Violence in Civil War, workshop sponsored by the Centre for Studies of Civil War at the International Peace Research Institute Techniques of Violence in Civil War, workshop sponsored by the Centre for Studies of Civil War at the International Peace Research Institute (January 2004), 18.
through secret society initiation signifying their transition from childhood to adulthood, creating as such a spiritual bond.
Notably, the line between forcible conscription and voluntary enlistment is blurred, especially on the ground. Irrespective of how they were recruited, children are considered victims of child soldiering, whose physical and mental well-being has been affected by the armed conflict and the violence they have experienced30.
3.2 Criminal responsibility
Pursuant to Art. 8 para. 2(b) (xxvi) and (e) (vii) RS, the conscription or enlistment of children under the age of fifteen years into armed forces or groups or their active participation in hostilities is a war crime both in international and non-international armed conflicts. The Statute of the ICC establishes thus the criminal liability of those who recruit and use children as soldiers. No one contests that children, under no circumstances, should participate in armed conflicts and that the adults who use child soldiers should be held accountable for their actions.
Children are recruited in armed conflicts because their moral development and social skills are not yet complete. As a result, they can be easily manipulated and coerced into committing atrocities. This tractability is the rationale behind the prohibition of child soldiers in international law31. Either voluntarily or forcibly recruited, children are subject to constant
threats, abuse and brutalising treatment, designed to desensitise them and erase any sense of humanity and compassion. This process is facilitated by the consumption of alcohol and/or drugs, given to children by their commanders in order to lessen their inhibitions32.
Consequently, child soldiers commit crimes, giving rise to the discussion regarding their criminal responsibility.
As regards to international armed conflicts, States are obliged to investigate and prosecute those responsible for grave breaches of the laws of war, namely those responsible for committing the acts listed in Art. 50 of the Geneva Convention I, Art. 51 of the Geneva Convention II, Art. 130 of the Geneva Convention III, Art. 147 of the Geneva Convention IV and Art. 85 of the Additional Protocol I. Besides members of the armed forces, private actors
30 International Bureau for Children’s Rights, ‘Children and Armed Conflict: A Guide to International Humanitarian and Human Rights Law’ (International Bureau for Children’s Rights, 2010), 324.
31 Ibid n. 21, 332.
32 Matthew Happold, Child Soldiers in International Law, (Juris Publishing, Manchester University Press, Manchester 2005), 142.
may also violate International Humanitarian Law (hereinafter IHL), even if their conduct cannot be attributed to the State. In any case, the State has an obligation to prosecute and punish those private actors based on the principle of due diligence33. Such treaty obligations do not exist for non-international armed conflicts. As for war crimes, some of them are not included in the aforementioned provisions as grave breaches of IHL. This lacuna is bridged by the application of Rule 158 of the International Committee of the Red Cross (ICRC) Study on Customary International Humanitarian Law, which stipulates that “states must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects”. According to the Study, this rule has been established through state practice as a norm of customary international law irrespective of whether the armed conflict is an IAC or a NIAC34. IHL provisions, however, do not serve as a criminal code nor create a criminal system able to prosecute those who violate it35, therefore it is up to the States to implement relevant legislation.
IHL treaty law does not include any provision regarding the prosecution of children for war crimes, hence the matter is left to national regulation36. Additionally, there is no provision in IHL setting a minimum age of criminal responsibility for international crimes; some provisions protect only children under the age of 15, while at the same time the age of recruitment and participation in hostilities is set at 1537. By setting the age limit at 15 for
children’s participation in hostilities, IHL seems to follow the belief that children below that age cannot be held responsible for the crimes they committed since they are not fully developed, mentally, physically or morally in order to decide logically their participation in hostilities38. As a result, children above the age of 15 can be prosecuted for serious violations of IHL39.
33 Marco Sassòli, ‘State Responsibility for Violations of International Humanitarian Law’, (2002) 84(846) IRRC 401, 411-412.
34 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law – Volume I:
Rules (ICRC, Cambridge University Press, New York 2005), 607-611.
35 Marko Divac Öberg, ‘The Absorption of Grave Breaches into War Crimes Law’, (2009) 91(873) IRRC 163, 166.
36 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Official Records of the Diplomatic Conference) (1974– 1977), vol. XV, 466, para. 65.
37 Art. 77 Additional Protocol I and Art. 4 para. 3 Additional Protocol II. 38 Ibid n. 23, 303.
39 UN Special Representative of the Secretary-General for Children and Armed Conflict, Children and Justice During and in the Aftermath of Armed Conflict (September 2011), 34.
International Human Rights Law stipulates that children can be held criminally responsible. Pursuant to Art. 40 para. 3(a) of the CRC “States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law”. The CRC does not set an age for criminal responsibility but allows each State to decide upon this issue. In general, most domestic legislations set a minimum age of criminal responsibility around the age of ten, mostly because children under ten years of age are considered incapable of evil (doli incapax). This ‘incapacity’ is linked to the mens rea and the child’s lack of a guilty mind40. Even though the
minimum age of criminal responsibility may differ from state to state due to culture and history, States, when determining it, should take into account the emotional, mental and intellectual maturity of the child41. Such factors are linked to one’s ability to distinguish right from wrong, based on his/her mental and moral awareness of the consequences or the potential consequences of his/her actions and the ability to hold him or her responsible for anti-social behaviour. Notwithstanding, the Committee of the Rights of the Child has emphasised that factors such as “the attainment of puberty, the age of discernment or the personality of the child”42 are quite subjective and may lead to discrimination when handling
cases of juvenile offenders. Hence, these factors should only be taken into account when establishing the age for criminal responsibility in domestic legislation43.
With respect to International Criminal Law, neither the Charter of the International Military Tribunal nor the statutes of the ad hoc tribunals for Rwanda and the former Yugoslavia included a provision for the age of criminal responsibility. The issue of prosecuting underage perpetrators first arose before the Special Court for Sierra Leone (hereinafter SCSL)44. The difficulties of prosecuting child soldiers for crimes against
40 Ibid n. 32, 143.
41UN General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules"): resolution / adopted by the General Assembly, (29 November 1985), A/RES/40/33, Principle 4.1 Annex.
42 UN Committee on the Rights of the Child (CRC), Report of the UN Committee on the Rights of the Child, Tenth Session (Geneva, 30 October - 17 November 1995), (18 December 1995), CRC/C/46, para. 218.
43 For a more detailed analysis see Noëlle Quénivet, ‘Does and Should International Law Prohibit the Prosecution of Children for War Crimes?’, (2017) 28 EJIL 433-455.
44 The SCSL was the first ad hoc tribunal to deal with this issue. Nevertheless, in Rwanda, children were prosecuted in domestic courts for crimes against humanity and genocide. More than 5,000 children have been arrested in Rwanda for genocide and some of them were under 14 years of age. The general opinion in Rwandan society was that children must be held accountable for their actions, just like adults, see Pacifique Manirakiza,
humanity and war crimes were acknowledged by the UN Secretary-General, who emphasised the dual status of child soldiers as victims and perpetrators45. The two antithetical views on
the matter expressed during the SCSL Statute’s drafting process reflected this dilemma; on the one hand, the Government of Sierra Leone and representatives of Sierra Leone’s civil society viewed child soldiers as perpetrators and wanted to hold them accountable for their actions. On the other hand, the international non-governmental organisations and their national counterparts emphasised the need to exempt children from criminal responsibility and prosecution, since that would undermine the rehabilitation process46.
After a series of negotiations, the SCSL Statute47 was adopted; the Statute recognises three categories of perpetrators, namely adults, children and those who were between fifteen and eighteen years of age at the time of the alleged commission of the crime48. As expected, the Court has jurisdiction over individuals who were eighteen or older at the time of the alleged commission of the crime and has no jurisdiction over persons who were under the age of fifteen (Art. 7 of the SCSL Statute).
Regarding the so-called ‘juvenile offenders’, i.e. individuals between fifteen and eighteen years of age, the Court has special jurisdiction over them. To be more precise, those individuals could still be brought before the Court for the crimes they allegedly committed as child soldiers, but they would be afforded special treatment; they would be treated with dignity and respect and the main goal of the whole process would be their rehabilitation, reintegration into and assumption of a constructive role in society49. Evidently, this provision takes into account the international standards for the protection of children and recognises the need to treat them as victims in need of support and guidance, rather than punishing them the same way adult perpetrators are being punished. Hence, Art. 7 para. 2 includes a list of measures the Court can take when dealing with juvenile offenders, such as care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any
‘Les Enfants Face au Système International de Justice: à la Recherche d’un Modèle de Justice Pénale Internationale pour les Déliquants Mineurs’, (2009) 34 Queen’s L. J. 719, 734.
45 United Nations, ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’, (4 October 2000), UN Doc. S/2000/915.
46 Idem, paras. 34-35.
47 UN Security Council, Statute of the Special Court for Sierra Leone, 16 January 2002. 48 Gus Waschefort, International Law and Child Soldiers, (Hart Publishing, Oxford 2015), 137. 49 Ibid n. 47, Art. 7 para. 1.
programmes of disarmament, demobilization and reintegration or programmes of child protection agencies50.
Interestingly, when dealing with the question of whether former child soldiers should be prosecuted for the atrocities they committed, David Crane, the Special Court Prosecutor, decided not to prosecute them. According to Crane “The children of Sierra Leone have suffered enough both as victims and perpetrators. I am not interested in prosecuting children. I want to prosecute the people who forced thousands of children to commit unspeakable crimes”51. He justified his decision based on the Court’s mandate, which stipulates that only
the persons “who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law” should be prosecuted52. Child soldiers, being the victims of such violations, should thus be exempted from prosecution. This approach, however, is contrary to the letter of Art. 7 para. 1 SCSL Statute; the provision does not bar prosecution of underage offenders, only replaces punishment with other measures. This allows us to conclude that child soldiers have criminal responsibility for the crimes they have committed but their treatment is different for the sake of their rehabilitation.
The ICC Statute, on the other hand, has a less complicated provision; Art 26 RS stipulates that “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime”. When dealing with this provision the ICTY Trial Chamber in Orić stated that the age limit in Art. 26 RS is ‘for jurisdictional purposes’53, i.e.
has no substantive nature but merely excludes from the Court's jurisdiction juvenile offenders. As regards to the Defence’s submission that there can be no criminal responsibility for war crimes if the perpetrator is below the age of eighteen, the Trial Chamber held that individuals below the age of 18 can still be prosecuted for the war crimes they have committed since there is no rule in treaty law or customary international law against their criminal liability54. As a result, juveniles can be prosecuted for international crimes, the same way they can be prosecuted for ordinary crimes, pursuant to domestic legislation on the
50 Ibid n. 47, Art. 7 para. 2.
51 Special Court for Sierra Leone Public Affairs Office Press Release, ‘Special Court Prosecutor Says He Will Not Prosecute Children’, (2 November 2002), 1.
52 Art. 1 par. 1 SCSL Statute.
53 The Prosecutor v. Naser Orić (Trial Chamber Judgement) ICTY-03-68-T (30 June 2006), footnote 1177. The Court referred to the ICC Statute because the Defence submitted it as an indicator of prosecuting only adults. 54 Idem, para. 400.
minimum age of criminal responsibility and the relevant provisions of International Human Rights Law55.
Despite its clarity, Art. 26 RS is rather problematic when read in conjunction with Art. 8 para. 2(b) (xxvi) and (e) (vii) RS; as sated previously, the ICC Statute sets the age limit at fifteen for the crime of child recruitment, while the minimum age for criminal responsibility is set at eighteen. These two different age limits effectively create a gap since those who recruit adolescents between the ages of fifteen and eighteen years of age will not be prosecuted.
Other hybrid tribunals, such as the War Crimes Chamber in the Court of Bosnia-Herzegovina and the Special Panels for Serious Crimes in East Timor set a rather low age limit of criminal responsibility at 1456 and 1257 respectively, but no prosecution has taken place. The different provisions regarding the age of criminal responsibility and the lack of prosecutions against children who have committed international crimes lead to the conclusion that children are viewed as innocent victims of armed conflicts, thus the responsibility for the atrocities they have committed passes entirely to the adult that has recruited and used them as child soldiers58.
The children themselves should be rehabilitated and reintegrated into the society instead of being prosecuted for the crimes they have committed, since trials do not appear to be in the best interest of former child soldiers59. This approach is somehow reflected in the 2000
Amnesty Act adopted by Ugandan authorities; pursuant to the Amnesty Act, pardon was offered to “any Ugandan who has at any time since the 26th day of January, 1986, engaged in
or is engaging in war or armed rebellion against the government of the Republic of Uganda”60, irrespective of their age. This initiative played an important role in cases of former child soldiers. An example is the case of two boys, aged 14 and 16, who were abducted and forcibly conscripted into the LRA, but later surrendered voluntarily to the
55 William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford Commentaries on International Law, 2nd Edition, Oxford University Press, Oxford 2016), 592-593; see also William A. Schabas, ‘General Principles of Criminal Law in the International Criminal Court Statute (Part III)’, (1998) 6 Eur. J. Crime Cr. L. Cr. J. 84, 98-99.
56 Art. 8 of the Criminal Code of Bosnia and Herzegovina.
57 UN Transitional Administration in East Timor (UNTAET), Regulation 2001/25 on the Amendment of UNTAET Regulation no. 2000/11: On the Organization of Courts in East Timor and UNTAET Regulation no. 2000/30: On the Transitional Rules of Criminal Procedure, Doc. UNTAET/REG/2001/25, September 2001, s. 45.1.
58 Ibid. n. 22, 18.
59 Nienke Grossman, ‘Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations’, (2007) 38 Geo. J. Int’l L. 323, 350.
Ugandan People’s Defence Force (UPDF). In late 2002, Ugandan authorities brought treason charges against them, but after the involvement of the Human Rights Watch61, the Ugandan
authorities decided to drop the charges and release the boys to a rehabilitation centre, with the condition that they would apply for amnesty. Evidently, amnesties encouraged the return of abducted children and their reconciliation with their communities, bringing peace in communities that have been affected by the conflict62.
Amnesty could have been the solution in the present case as well since the defendant is a former child soldier who could benefit from it. Dominic Ongwen, however, along with four other top LRA-commanders63, was excluded from the amnesty scheme, since the Government of Uganda insists on his prosecution by the ICC. The reason behind this decision is not only his position in the LRA, given that he was the alleged Sinia Brigade commander and Kony’s third in command, but also the brutality of his crimes. As a result, his status as a former child soldier did not affect his responsibility in the eyes of the Ugandan authorities. Uganda maintained the same position with respect to Thomas Kwoyelo, another former child soldier and LRA commander, who faced prosecution for war crimes and crimes against humanity at the International Crimes Division in Uganda64.
61Human Rights Watch, ‘Uganda: Letter to Minister of Justice’ (19 February 2003) <https://www.hrw.org/news/2003/02/19/uganda-letter-minister-justice> accessed 5 May 2019; Human Rights Watch press release, ‘Uganda: Drop Treason Charges Against Child Abductees’ (4 March 2003) <https://www.hrw.org/news/2003/03/04/uganda-drop-treason-charges-against-child-abductees> accessed 5 May 2019.
62 Justice & Reconciliation Project, ‘To Pardon or to Punish? Current Perceptions and Opinions on Uganda’s Amnesty in Acholi-land’ (Situational Brief, 15 December 2011), <http://justiceandreconciliation.com/wp-content/uploads/2011/12/JRP_Brief_Amnesty-Dec-20111.pdf> accessed 16 February 2019.
63 These are Joseph Kony, Vincent Otti, Okot Odhiambo and Raska Lukwiya who have also been indicted by the ICC. Vincent Otti and Raska Lukwiya are reportedly dead.
4. The ‘child soldier defence’ under the Rome Statute
As stated previously, Ongwen’s Defence team suggested that he should not be held responsible for his actions during his time at the LRA because, on the one hand, he was a child soldier, abducted and conscripted against his will, and, on the other, he was acting under duress, constantly fearing for his life in case he failed to follow and execute Kony’s orders. Interestingly, the Defence maintains that his abduction was a defining moment in Ongwen’s life and his upbringing into the armed group affected his actions even after he became an adult. Hence, his victimhood should grant him the protection afforded to child soldiers up until the time he left the LRA.
Even though the PTC does not discuss in detail the reasons for dismissing the ‘child soldier defence’, it is quite easy to read through the lines; the Defence suggested that Ongwen continued to be a child soldier even after he became an adult. His abduction, however, took place when he was nine years old and he stayed with the LRA for a total of thirty years. Even if we accept that Ongwen was abducted at the age of nine65, he spent only nine years as a child soldier, until he became an adult, and then spent twenty-one years as an adult, serving the LRA and rising hierarchically. The fact which probably led the Court to dismiss this argument is that Ongwen’s abduction was not recent and the Defence did not convince the PTC judges that there is a legal nexus between his abduction at the age of nine and him committing atrocities over the course of his thirty-year service to the LRA. Nevertheless, it has been argued that the mere passage from childhood to adulthood does not necessarily transform Ongwen, or any other child soldier for that matter, from a victim to a perpetrator66,
especially when they continuously face the effects of their traumatic experiences. Such developmental trauma cannot simply disappear when the child becomes an adult.
This line of thinking generates a discussion not only on the longevity of Ongwen's child soldier status but also on its compatibility with the existing defences under the Rome Statute. These issues will be analysed in the following sections.
65 Ongwen’s age both at the time of his abduction and at the time of his surrender are contested, because there is no evidence (birth certificate, birthday, witnesses etc) indicating his exact age.
66 Raphael Lorenzo Aguiling Pangalangan, ‘Dominic Ongwen and the Rotten Social Background Defence: The Criminal Culpability of Child Soldiers Turned War Criminals’, (2018) 33 Am. U. Int’l L. Rev 605, 620.
4.1 The ‘rotten social background’ argument in the context of child soldiers
Ongwen’s defence brief describes in a detailed manner the violent circumstances of his life with the LRA and showcases the brutal reality child soldiers face. Reading all these details, one cannot help but observe the similarities between his background as a child soldier and the so-called ‘rotten social background’ doctrine. The rotten social background doctrine recognises a relationship between a person’s socioeconomic background and his or her criminal propensity. According to this doctrine, an individual’s criminal behaviour may at times be influenced by external factors, beyond his or her control, which create the predispositions to commit a crime67. The environment in which a child is raised plays a significant role in shaping the person’s character, his/her values and behaviour, since the physical, emotional, social and cognitive development of a child is inextricably linked to his/her environment68. Arguably, unequal opportunities, discrimination, traumatic experiences and lack of education often affect one’s criminal behaviour, giving rise to the discussion of whether the rotten social background should be recognised as a criminal defence.
Even though a criminal defence based on socioeconomic deprivation is not recognised in any jurisdiction, it is argued that an excuse based on the rotten social background doctrine can be accepted when the child is raised in an environment where violence and deceit are normalised as acceptable and necessary methods of dealing with the challenges of life69. Such
conditions foster a process of coercive indoctrination, i.e. the change of a person’s beliefs and values through coercive means. To be more precise, when a person has been subjected to coercive indoctrination, he or she commits crimes fully aware of their wrongfulness, acts consciously and without overt coercion70. Notwithstanding, “the guilty mind with which he acts is not his own. Rather, his mental state is more appropriately ascribed to the captors who instilled it in him for their own purposes”71. This position was also shared by the ICC
67 Richard Delgado, ‘Rotten Social Background: Should the Criminal Law Recognise a Defence of Severe Environmental Deprivation?’, (1985) 3 Law & Ineq. 9, 9.
68 Elizabeth Portacio-Marcelino, Torture of Children in Situations of Armed Conflict: the Philippine Experience, (Psychosocial Trauma Program, Centre for Integrative and Development Studies, University of the Philippines, 2000), 59.
69 Paul H. Robinson, ‘Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defences of Coercive Indoctrination and “Rotten Social Background”’, (2011) 2 Alabama Civil Rights & Civil Liberties Law Review 53, 54.
70 Richard Delgado, ‘Ascription of Criminal States of Mind: Toward a Defence Theory for the Coercive Persuaded (Brainwashed) Defendant’, (1978) 63 Minn. L. Rev. 1, 11.
Prosecutor, who declared that child soldiers do not have free will72. From all of the above, it
appears that child soldiers fall under the scope of the rotten social background doctrine; in the context of child soldiers children do not just face socioeconomic deprivation, like children with a rotten social background during peacetime, but are raised in violent environments and are coerced into committing atrocities, hence their background severely influences their development. Besides their degree of suffering, child soldiers face more serious charges, therefore any claim based on the rotten social background doctrine must be couched in a way that reflects the reality of child soldiers.
Evidently, Dominic Ongwen’s past can be easily characterised as a rotten social background. More specifically, after his abduction, Ongwen was completely indoctrinated into the LRA; in his own words, he entered the armed group “blind and deaf”73 and like any
other child of his age, he was easily coerced and manipulated. The LRA has adopted a complex system of control in order to completely indoctrinate the new recruits and train them into rebel fighters. Their six-month initiation included all sorts of control mechanisms, ranging from physical, linguistic and cultural isolation to public violence and forced complicity. Beatings, hard labour, frequent canings and long marches were followed by the assignment to a family structure, where the children were forced to learn and use solely the Acholi language. Public punishment was a common method aiming to deter escape and witchcraft was used in order to intimidate the children and establish the idea of the group’s spiritual powers74. These spiritual powers were of course directly linked to the group’s leader,
Joseph Kony, who claimed to have great spiritual powers, such as healing powers, reading people’s minds and predicting the future through his communication with the ‘Spirits’. The ‘cleansing rituals’ performed to the children included blood tasting, rolling in the blood of the dead or eating with bloodied hands or while sitting on top of corpses75.
This brutal training is also acknowledged by the Prosecutor of the ICC, who states that “Child soldiers underwent rudimentary military training, and they endured brutal disciplinary measures. They were regularly required to participate not only in the murderous attacks on civilian camps, but in the individual acts of torture and murder designed to convince recently
72 The Prosecutor v. Thomas Lubanga Dyilo, (Opening Statement), ICC-01/04-01/06 (26 January 2009). 73 Ibid n. 1.
74 Jocelyn TD Kelly, Lindsay Branham and Michelle R. Decker, ‘Abducted Children and Youth in Lord's Resistance Army in North-eastern Democratic Republic of the Congo (DRC): Mechanisms of Indoctrination and Control’, Conflict & Health (18 May 2016), 4 <https://conflictandhealth.biomedcentral.com/track/pdf/10.1186/s13031-016-0078-5> accessed 4 June 2019. 75 Erin Baines, ‘Complicating Victims and Perpetrators in Uganda: on Dominic Ongwen’ (2008) JRP Field Note 7, 8.
abducted children that they were so steeped in blood that there could be no acceptance for them back in civilian society”76. These methods inevitably affected the children’s physical
and mental health; although child soldiering did not stop their moral development, it led the children to construct it in a problematic way, in that they developed moral concepts into the armed group by adopting the notions of right and wrong that were accepted inside the LRA77, which eventually transformed them into pawns of war, expendable fighters used to achieve the armed group’s goals. Their victimisation during their formative years was so severe that it is not possible to separate the child who was used as a soldier from the soldier he or she grew up to become78. Based on the above-mentioned analysis, it is safe to say that when highlighting his experiences as a child soldier, Ongwen’s Defence lawyers essentially suggested the rotten social background argument, in order to justify his behaviour.
4.2 Duress
As previously mentioned, Ongwen’s Defence team linked his abduction and coercive indoctrination into the LRA, i.e. his rotten social background, with duress. According to his Defence lawyers “The all-knowing and all-seeing Joseph Kony instilled an institutional ethos that required compliance and discipline. Throughout the rest of his life and until surrendering to US Special Forces, he remained under the apprehension of fear of imminent death, especially if he were to flee. The environment of duress never dissipated as Dominic remained in the rebel group. His so-called rank was demonstrative of one thing: that he was surviving better than others while under duress”79. This argument has a dual purpose; first, the Defence tries to justify Ongwen’s crimes by proving that he made the so-called ‘devil’s choice’. Second, they try to debunk the argument regarding his position into the LRA. By using this line of thinking the Defence tries to prove that there is a nexus between his abduction and conscription as a child soldier on the one hand, and the crimes he later committed as an adult on the other.
Before diving into the theory about duress and how it may be applicable in the present case, it is necessary to draw some distinctions between duress and infancy. The general belief about child perpetrators, as previously stated, is that they lack the mens rea, in that they
76 The Prosecutor v. Dominic Ongwen, (Transcript of the Confirmation of Charges) ICC-02/04-01/15-T-22-ENG, (25 January 2016), 56.
77 Renée Nicole Souris, ‘Child Soldiering on Trial: An Interdisciplinary Analysis of Responsibility in the Lord’s Resistance Army’, (2017) 13 Int. J. L. C. 316, 325.
78 Ibid n. 66, 621. 79 Ibid n. 4, para. 4.
cannot fully comprehend the consequences of their actions because their moral and mental development is not yet complete. Contrary to that, when a defendant is claiming that he/she acted under duress, he/she does not claim that he/she lacked the intent to perform the criminal act, but that he/she had no other alternative but to commit the crime, otherwise he/she would face imminent death or serious bodily harm80. Therefore, duress is based on the idea that the defendant did not want to commit the crime and that he/she would have avoided the commission if there wasn’t any compulsion81. The way the Defence’s arguments are
constructed, first by referring to Ongwen’s child soldier status and then to duress, creates confusion about these two different terms, a confusion that could be prevented if they referred to child soldiering as his rotten social background.
With respect to the first part of the argument about duress, in order to establish this defence, the defendant must prove that he or she committed the crime because he or she faced an imminent threat beyond his/her control. This threat must be of "imminent death or of continuing or imminent serious bodily harm", pursuant to Art. 31 para. 1(d) RS. Additionally, the accused's reaction to the threat must have been proportional, in that it was necessary and reasonable in the circumstances to avoid the threat82. There is also the need for causation between the threat and the accused's conduct; if the person would have committed the crime anyway, then the perpetrator cannot invoke Art. 31 para. 1(d) RS. As to the mental element, the person must have chosen the lesser of two evils, as it is prescribed in the Rome Statute83.
Contrary to necessity, which is a justification, duress is an excuse, in that the perpetrator’s actions are still considered criminal, but it is recognised that the person, faced with such overwhelming pressure and threat, was incapable of making a moral choice, hence should not be punished84.
Regarding the first requirement of duress, that of an imminent threat, the PTC stated that there was no evidence indicating that Ongwen faced such threat when committing the particular crimes he is being accused of because the fear of disciplinary measures does not amount to an imminent threat as this is defined in Art. 31 para 1(d) RS. The PTC, however,
80 Ibid n. 32, 154-155.
81 Caroline Fournet, ‘When the Child Surpasses the Father – Admissible Defences in International Criminal Law’, (2008) 8 Int. C. L. R. 509, 528.
82 Robert Cryer, Hȧkan Friman, Darryl Robinson and Elizabeth Wilmshurst, An Introduction to International
Criminal Law and Procedure (Third Edition, Cambridge University Press, Cambridge 2014), 408.
83 Idem, 406-409; Kai Ambos, ‘Defences in International Criminal Law’ in Bertram S. Brown (ed), Research
Handbook on International Criminal Law (Research Handbooks in International Law, Edward Elgar Publishing
Ltd, Cheltenham 2011), 310-317.
84 Nadia Grant, ‘Duress as a Defence for Former Child Soldiers? Dominic Ongwen and the International Criminal Court’, International Crimes Database Brief (21 December 2016), 17.
seems to not take into account the environment in which Ongwen and the other child soldiers were living. Besides the brutal indoctrination, the LRA has employed a scheme of retaliation in order to deter escapes. The rebels kept records of the children’s personal information, such as name, villages of birth and clans. If a child managed to escape, they would use this information in order to locate his/her family and retaliate85. Any suspicion that a child might consider escape resulted in brutal beatings and, sometimes, death86. The threat against the children’s lives and the lives of those who live in their communities is the distinguishing factor between abducted child soldiers and adults who willingly joined the LRA. This lasting fear, instilled to him by his captors, can be considered as the lasting threat which led Ongwen to commit his crimes, fulfilling the imminent threat requirement.
The PTC also underlined that the circumstances of Ongwen’s stay with the LRA were not beyond his control; instead of escaping, as others did, he rose to the hierarchy and became third in command after Kony, fully complying with the group’s ideology and brutal methods. The issue of inescapability is crucial in duress, since the defendant cannot claim this defence when he or she could avoid committing the crime, either by escaping or resisting the coercer87. In addition, Ongwen was known for his brutality against the civilian population and the sexual and gender-based crimes he committed or commanded others to commit, hence the requirements of necessity and reasonableness cannot be fulfilled. This is where the Defence’s second argument regarding his position into the LRA enters the discussion and unfolds as follows; Ongwen was unable to escape because of his position in the armed group. His higher position put him under more duress, since the higher the rank someone had in the LRA, the more monitored he was. His choice to become a senior commander was not the result of free will or personal aspirations; it was clearly a choice that he had to make if he wanted to survive, given that top ranking officials had better chances of survival. As a result, Ongwen was forced to rise hierarchically due to the circumstances, because he had to secure his survival and was committing these crimes under constant duress. Despite this elaborate way of thinking, the Defence’s argument backfired for the following reasons.
85 That is why mothers usually told their children to give false details in case they were abducted, see Stephanie Nolan, ‘The Making of a Monster’ (The Globe and Mail, 25 October 2008), < https://www.theglobeandmail.com/news/world/the-making-of-a-monster/article20389116/?page=all> accessed 6 June 2019.
86 Erin K. Baines, ‘Complex Political Perpetrators: Reflections on Dominic Ongwen’, (2009) 47 J. Mod. Afr. Stud. 163, 170.
87 Olaoluwa Olusanya, ‘Excuse and Mitigation under International Criminal Law: Redrawing Conceptual Boundaries’, (2010) 13 New Crim. L. Rev. 23, 56.
First, according to testimonies, it was well known that LRA commanders were subject to constant monitoring because they knew important information and Kony wanted to make sure that they would not release this information in case they were captured by their adversaries or managed to escape. As an additional deterrent method, commanders were always accompanied by their fighters, their wives and their children and were surrounded by guards and Kony’s spies, as a form of ‘extra’ protection88. If Ongwen truly wanted to escape, he
would not have placed himself in a position that made it impossible for him to do so. He knew how strict LRA’s rules were especially for commanders and he willingly chose to become one. Thus, there is no room for him to advance the ‘kill to survive’ narrative in an effort to fulfil the necessity requirement when there is evidence that he had an alternative, in that he could have escaped, as others did in the past89.
Second, even if we accept that Ongwen had no other choice but to stay with the LRA, his actions are far from being characterised as reasonable90. It is true that when someone’s life is threatened, his/her survival instinct is triggered, therefore we cannot expect that the threatened individual will sacrifice his/her life to save another person, especially when any reasonable person, in the same position, would have committed the crime in order to save himself/herself91. This position was also followed by Judge Cassese in his dissenting opinion in the Erdemović case; in criticising the majority’s opinion, which held that the perpetrator should sacrifice himself in order to escape criminal liability, Cassese underlined that such an obligation sets “intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards”92. Based on
this analysis, someone could argue that Ongwen did exactly what any other reasonable person would do when facing an imminent threat. Nevertheless, his position of duty comes into play and prevents the application of the ‘reasonable person’ standard. In Erdemović, both the majority and the dissenting judges held that soldiers and other government officials must exercise greater resilience against duress and pressure. This higher level of resistance to
88 Ibid n. 84, 12. 89 Ibid n. 5, para. 154.
90 Some argue that the requirement of reasonableness belongs to necessity and by listing it as a requirement of duress, the drafters ended up creating a hybrid which cannot be categorised either as a justification or an excuse, see Beatrice Krebs, ‘Justification and Excuse in Article 31(1) of the Rome Statute’, (2013) 2 Cambridge J. Int’l & Comp. L. 382, 407.
91 Ohlendorf and others (Einsatzgruppen case) in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Volume IV, (US Government Printing Office, Washington DC), para. 480.
92 The Prosecutor v. Drazen Erdemović (Separate and Dissenting Opinion of Judge Cassese) ICTY-99-22-A (7 October 1997), para. 47.
