Marine Viegas
Student number: 12665282 viegas.marine@gmail.com
Master Thesis
LL.M. International and Transnational Criminal Law 2019-2020
Final version, submitted on 8 July 2020
Children and International Crimes: Somewhere
Between Victims and Perpetrators – An
Assessment of the Legal Framework
How, and to what extent, victimization as a child soldier contributes to later
perpetration and thus ought to be considered in the evaluation and ascription
of ulterior criminal responsibility for international crimes?
List of Abbreviations
ACRWC African Charter on the Rights and Welfare of the Child AFRC Armed Forces Revolutionary Council
API Additional Protocol I to the Geneva Conventions APII Additional Protocol II to the Geneva Conventions CAF Central African Republic
CAH Crime against humanity CoC Confirmation of charges
CRC Convention on the Rights of the Child DID Dissociative Identity Disorder
DRC Democratic Republic of Congo
Dr. Doctor
GC Geneva Convention
HRL Human rights law
IAC International armed conflict ICC International Criminal Court ICL International Criminal Law
ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTs International Criminal Tribunals
ICTY International Criminal tribunal for the former Yugoslavia IHL International humanitarian law
ILL International labor law
ILO International Labor Organization
IMT International Military Tribunal in Nuremberg Int’l International
ISIS Islamic State of Iraq and Syria
LRA Lord’s Resistance Army
LRV Legal Representative of Victims LRVs Legal Representatives of Victims MDD Major Depressive Disorder NIAC Non-international armed conflict
NSAG Non-state armed group
OP-CRC Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict
OTP Office of the Prosecutor Para. Paragraph
Pr. Professor
PTC Pre-Trial Chamber
PTSD Post Traumatic Stress Disorder
RS Rome Statute of the International Criminal Court RUF Revolutionary United Front
SAG State armed group (armed forces) SCSL Special Court for Sierra Leone SGBC Sexual and gender-based crime
WC War crime
Table of Contents
Acknowledgments Abstract
Introduction
Part I. The hybrid status of (former) child soldiers: alibi to later perpetration? I. Hybridity or the link between former victimization and ulterior perpetration
1. Child soldiers, somewhere between victims and perpetrators
2. The three patterns of victimization in the making of a child soldier
II. The impact of victimization on ulterior perpetration: a practical and moral analysis
1. Child soldiers, victimization and agency: passive dupes or autonomous agents?
2. The impact of victimization on ulterior perpetration or the tension between law and morality
Part II. Child soldiering as a violation of human rights law: consequences on the assessment of ulterior perpetration
I. Human rights law as a yardstick to assess criminal responsibility: exploring the possibilities
1. The (internationally recognized) right not to be a child soldier
1. The denial of the right to development and its impact on the evaluation of the
mens rea
II. In search of a valid legal basis to adequately evaluate the criminal responsibility of ulterior perpetrators
1. ‘International legal protection’ as a persuasive defence?
Part III. The hybrid status of (former) child soldiers: exclusion of criminal responsibility for ultimate perpetration of international crimes?
I. Former child soldiers and attribution: less guilty by reason of aggravated victimization?
1. Being a former child soldier: excuse or justification to later perpetration?
2. Duress by circumstances and child soldiering on trial: possibilities, ambiguities and paradoxes
II. Exclusion of criminal responsibility or the quandary between justice and impunity
1. Victimization and the mental disease/defect defence
2. The exclusion of criminal responsibility of ulterior perpetrators: reconsidering binaries, priorities and theories of punishment
Acknowledgments
I would like to thank Ms. Jindan-Karena Mann for her support and advices throughout the writing of this thesis I particularly cherish.
I am also grateful to all the professors of the International and Transnational Criminal Law Masters of the University of Amsterdam for their precious teaching this entire year.
Thanks to my dear friends and colleagues Grégoire Brière and Léana Simonin for their unfailing support in the review of this paper.
Abstract
This thesis considers the case of child soldiers whose victimization (i.e., by being abducted or recruited at a young age and then forced to commit or witness atrocities) ultimately led them to become perpetrators. In so doing, I will use the pending ICC case of Dominic Ongwen – a former child soldier abducted at the age of 9 years old on his way to school by the Ugandan LRA, which he never left. He eventually rose ranks and as an adult and brigade commander, allegedly committed war crimes and crimes against humanity. This paper seeks to clarify how, violations against child soldiers when they were minors, may have a direct bearing on the commission of their later crimes (which the international courts have jurisdiction over), and accordingly ought to be considered when assessing criminal responsibility. To this purpose, the status of former child soldiers is to be described as hybrid (i.e., both a victim and a perpetrator at the same time). This study proceeds from a multidisciplinary approach, using psychiatry and psychology to assess whether the three recurrent patterns of victimization inflicted on child soldiers (abduction, brainwashing and violence) do have a bearing on later perpetration as an adult; law, in order to determine how may this impact fits within the existing common-law defences or as laid down in the Rome Statute; and American legal philosophy to provide insights on the tension between law and morality with regard to the adjudication of such victim-victimizer individuals. Based on evidence, it will be contended that victimization do have a bearing on ulterior perpetration, and that its human right impact on the individual (i.e., developmental retardment), ultimately contributes to condition of duress (by circumstances) or insanity within the meaning of Article 30 of the Rome Statute. Therefore, the victimization suffered by Ongwen as a child soldier, warrants an exclusion criminal responsibility for his later acts – on the basis of an excuse rather than a justification. This study therefore concludes that the hybridity status urges to look through the prism of irresponsibility first, rather than mitigation – which should be used only as a default option in case the conditions for irresponsibility are not met. Accordingly, it is of the view that the actual treatment of the Ongwen case, on the part of the OTP, LRV or PTC, not only worryingly undermines – if not contradicts – previous findings pertaining to child soldering, but is also biased and inadequate.
Introduction
‘Comprehension does not mean denying the outrageous […].’1
‘Children and international crimes’ constitute a tragic semantic association, revealing all the perfidy and wickedness of human warfare. Contemporary wars increasingly take place within state borders, hence directly involving civilians and, amongst them, children (i.e., any person under 18 years of age) stand as privileged targets to reinforce the ranks of armed groups. Therefore, every day, thousands of children, boys and girls, are forced to serve as child soldiers in armed conflicts worldwide, becoming victims as well as perpetrators of atrocities. The phenomenon of child soldiering is neither new, nor marginalized.2 However, the presence of
former child soldiers on the benches of international criminal tribunals (ICTs) remains relatively new.3
The violence and atrocities inflicted upon – and perpetrated by – child soldiers are notoriously infamous. Therefore, the stance taken by the international criminal justice system towards (former) child soldiers used to be a paternalistic one.4 Yet, when confronted with the
unorthodox case of a child soldier continuing the commission of crimes, exacerbating violence and fully turning into an adult perpetrator of international crimes, paternalism leaves place to moralism and compassion to prosecution.
This thesis attempts to explore the specific situation of child soldiers whose victimization (i.e., being forcibly recruited and coerced into committing or witnessing atrocities) ultimately led them to become perpetrators, using the case of Dominic Ongwen as a
1 Arendt 1958, p. viii.
2 Whilst it is complicated to capture the exact number of child soldiers, the reference usually given stands between
250 000 and 300 000 children recruited, in at least 86 countries. See The Global Report of the Coalition to Stop the Use of Child Soldiers 2008, p.12; Drumbl 2012, p.27; Dr. E. Schauer, ‘The Psychological Impact of Child Soldiering’, Report following Instructions to the Court's expert on child soldiers and trauma in the Lubanga case, ICC-01/04-01/06-1729, 25 February 2009, p.5. (hereinafter ‘Dr. Schauer 2009 Lubanga Report’).
3 See Ramos 2019, footnote 30: Dominic Ongwen is not the very first former child soldier tried for ulterior
perpetration of international crimes, considering that Samuel Hinga Norman indicted in 2003 by the SCSL (notably for forced conscription of children under 15), is said to have been a former child soldier recruited at the age of 14 in the ‘Boys Platoon’, the West African arm of the British army.
4 See The Prosecutor’s address on the sentencing of Thomas Lubanga, 13 June 2012, <
https://www.icc-cpi.int/Pages/item.aspx?name=pr809> accessed 15 June 2020: Fatou Bensouda declared to the Trial Chamber that ‘instead of obeying their mothers children had to obey commanders’. See also The Prosecutor’s statement on the International Day against the use of child soldiers, 12 February 2020 < https://www.icc-cpi.int/Pages/item.aspx?name=200212-otp-statement-child-soldiers> accessed 15 June 2020.
prism through which to examine this issue. Ongwen – though not his real name –5 was abducted
at the age of 9 years old6 to serve as a child soldier in the Ugandan Lord’s Resistance Army
(LRA) led by Joseph Kony, best known for having imposed ‘a reign of terror’ in the African Great Lakes region.7 Ongwen was never able to escape, and thus remained within the LRA for
27 years, eventually becoming a brigade commander. He now faces an unprecedented record of seventy charges for war crimes (WC) and crimes against humanity (CAH) at the International Criminal Court (ICC). The charged crimes, covering a period from 1 July 2002 to 31 December 2005 – which took place within the context of the armed conflict launched by the LRA in 1987 to overthrow the Ugandan government of Yoweri Museveni – may be divided into three categories: attacks on four camps of internally displaced persons (Pajule, Odek, Lukodi and Abok) and persecution of the civilian population considered to be supporting the Ugandan government; sexual and gender-based crimes directly, and indirectly, committed by Ongwen (directly, in subjecting his forced wives and tings tings8 to domestic servitude, torture, sexual
slavery, forced marriages and pregnancies; and indirectly, in supervising the implementation of sexual and gender-based crimes (SGBC) in his Sinia Brigade); and use and conscription of children under 15 years of age.
Whilst many (international) criminals carry with them their emotional and psychological backgrounds, the victimization suffered by child soldiers certainly stands apart. For its unique violence and perversity, its long-lasting physical and psychological effects and for being inflicted upon human-beings entitled to a heightened protection. The question I wish to raise is as follows: how, and to what extent, victimization as a child soldier contributes to later perpetration and thus ought to be considered in the evaluation and ascription of ulterior criminal responsibility for international crimes?
‘Ulterior’, ‘later’ or ‘ultimate’ perpetration is to be understood as the commission of international crimes occurring after the child reached 18 years old. The term ‘former’ child
5 Upon his abduction he gave the false name of ‘Dominic Ongwen’ to protect his family’s identity, see Baines &
Nolen, ‘The Making of a Monster’, The Globe and Mail, 25 October 2008, <https://www.theglobeandmail.com/news/world/the-making-of-a-monster/article20389116/> accessed 15 June
2020.
6 Ongwen’s age upon his abduction varied. According to the Defence he was 9, see ICC Trial hearing Transcript, ICC-02/04-01/15-T, 18 september 2018, p.5 (line 10) or 9.5 years old, see Defence Brief for the Confirmation of Charges (CoC) Hearing, ICC-02/04-01/15-404-Red3, 25 May 2016, para. 1. At his first appearance before the ICC, Ongwen said he was abducted at the age of 14, see Initial Appearance Transcript, ICC-02/04-01/15-T-4-ENG, 26 January 2015, p.4 (9).
7 Statement of the Prosecutor following the surrender and transfer of Dominic Ongwen, 21 January 2015,
<https://www.icc-cpi.int/Pages/item.aspx?name=otp-stat-21-01-2015&ln=en> accessed 15 June 2020.
8 Women and girls enslaved as domestic servants. See The Prosecutor v. Dominic Ongwen (hereinafter Ongwen),
soldier may refer either to a minor (i.e., a person under 18) who managed to leave the armed group or force he was recruited in, or to an adult who used to be a child soldier. This thesis being focused on adult perpetrators, ‘former’ child soldier will refer to those adult individuals who were recruited as soldiers in an armed group (or force) when they were minors; and whose status as child soldiers therefore ended on the day they turned 18 – though as further discussed below, should they leave the armed group or force only after reaching majority (such as Ongwen) they may still be considered child soldiers up to this day.
The major aim of this research is to re-examine, notwithstanding prejudices typically attached to international criminals, the concrete impact of the egregious sufferings inflicted upon child soldiers on their ulterior choice to commit crimes. Despite the mysteries and complexities of the human brain, emotions, and decision-making processes to engage in criminality, this study endeavors to draw some factual conclusions based on evidence, in order to determine whether it is legally and morally fair to hold former child soldiers like Ongwen accountable for their later acts. Especially considering the high standard imposed on the Prosecution to prove the guilt of the accused ‘beyond a reasonable doubt’ –9 whilst such cases
are all about doubts and uncertainty, defeating all usual patterns of criminality.
The research question requires a methodology of assessing – on a very practical level – the impact of victimization as a child soldier on the two components of criminal liability (i.e., a voluntary act committed with a culpable state of mind) in light of the available grounds to exclude criminal responsibility in common-law, or as laid down in the Rome Statute of the International Criminal Court (hereinafter ‘RS’). In doing so, I will proceed from a multi-disciplinary approach, using law as a benchmark, coupled with psychology (i.e., the science studying brain functioning and behaviour) and psychiatry (i.e., the science studying mental illness) – some findings coming directly from experts in the Ongwen case, such as Dr. Segane Musisi, Pr. Michael Wessells or Pr. Roland Weierstall (this latter being one of the three Prosecution Experts). In addition, I will use American legal philosophy in order to provide insights on the merits of the relationship between law and morality in the adjudication of former child soldiers.
Part I will determine whether the experience of being abducted (or recruited), used and brainwashed as a child soldier are a significant part of why an individual later went on to commit crimes as an adult. Part II will then investigate if the violation of the right not to be a child soldier, and related denial of their right to development, means that their later acts should
be evaluated differently. Finally, and based on the postulate that victimization as a former child soldier should not merely be considered as a mitigating factor at the sentencing stage, Part III will argue that the patent and long-lasting human rights impact of child soldiering ultimately contributes to conditions of duress (by circumstances) or insanity as regards ulterior perpetration.
At this point, it may be appropriate to make some remarks as to the goals and limitations of this study. Albeit inspired by a strict position on child soldiering (i.e., no person under 18 should bear arms or be involved in any way whatsoever in an armed conflict), this paper is not concerned with the whys and wherefores of the ban on child soldiering. Instead, it focuses on the underlying reasons for this prohibition (i.e., the irreversible impact on the individual) and its impact on later perpetration. In addition, this study does not endeavour to address each and every aspect of the Ongwen’s case – notably, controversies over the structure of the LRA and Ongwen’s corresponding position of command within it, his position of control and authority over his fighters or dispute pertaining to his real age, will not be addressed. Finally, in examining the relation of children with international crimes, I will refer to the ‘hybrid status’ of child soldiers (i.e., simultaneously victim and perpetrator); a label purposely chosen for its moral, philosophical and legal consequences. This paper contends that this hybrid status remains for the adult perpetrator, justifying and requiring a specific assessment of his criminal responsibility. The goal is not to draw generalized conclusions on child soldiers, advocate to systematically excuse crimes they may commit as adults or undermine their gravity. My major aim is to demonstrate that such hybrid individuals ought to be treated in accordance with psychological evidence, fair trial rights and human decency – excluding strict retribution or stigmatisation.
Part I.
The hybrid status of (former) child soldiers: alibi to later
perpetration?
This part intends to determine how does victimization as a child soldier contribute to later perpetration of (international) crimes, if at all. In this context, ‘contributes’ should be understood as render inclined or leading up to. Built on the postulate that child soldiers have a hybrid status (victim-perpetrator) surviving ulterior perpetration as adults, the ‘how’ question proceeds from an analysis of the three recurrent patterns of victimization used in child soldiering – and the manner they may impact an individual (physical) capacity to voluntary commit a crime. Through the prism of the common-law ‘defence’ of automatism, I will argue that the (continuing) victimization suffered by child soldiers is likely to impede the legal requirement of voluntary action with regards to ulterior perpetration. In denying the actus reus element of the crime, automatism functions similarly to an alibi (i.e., denial of an element of the offence) and entitles to a full acquittal. The underlying tension between law and morality in the judicial treatment of those hybrid individuals will in turn be examined.
I. Hybridity or the link between former victimization and ulterior perpetration
1. Child soldiers, somewhere between victims and perpetrators
‘Child soldiers’ (or alternatively, ‘children in the military’ or ‘children associated with fighting forces’) designate these children, boys and girls, below the age of eighteen years old,10
recruited and/or used by armed forces (SAG) or armed groups (NSAG, including terrorist groups) as fighters, suicide bombers, camps or body guards, cooks, ammunitions and loot carriers, messengers, spies or as sexual slaves.11 Irrespective of the way they are recruited
(abducted or not) and used (directly or indirectly12), the level of sufferings and human rights
violations they are exposed to, certainly defies human conscience.
10 In line with human rights law, in this paper ‘child soldiers’ is meant to encompass children from 15 to 17 years
of age and contrary to the Additional Protocols (AP) to the Geneva Conventions and the Rome Statute, see Article 77(2) API and Article 4(3) APII, and Article 8(2)(b)(xxvi) of the Rome Statute.
11 See UNICEF, Cap Town Principles 1997, p.1 and The Paris Principles 2007, p.7.
12 ‘Direct’ use (or participation) refers to children used on the front line and present on the immediate scene of the
hostilities, while ‘indirect’ use designates a remote support (e.g., camp guards, cooks, sex slaves, ammunitions and loot carriers, etc).
The legal and moral status of child soldiers remains as complex as tragic – being on the one hand, forced or instructed to commit crimes (e.g., killing, maiming, stealing, abducting, raping and so on)13 and on the other hand, submitted to blatant human sufferings (e.g., death,
beatings, torture, sexual violence, domestic servitude, etc). Accordingly, there may be several ways to consider them: exclusively as offenders (i.e., perpetrators of crimes with no mention of their victimization), exclusively as victims (i.e., of abduction, brainwashing and violence) or both simultaneously. This paper favors the latter hybrid view, or the middle path between ruthless sociopaths and untainted victims. This hybrid status – otherwise enshrined within the HRL framework14 – was not chosen as an easy compromise, but because either ‘imperfect
victims’15 or ‘complex perpetrators’,16 child soldiers definitely deserve a status which accurately
captures the complexity of their stories. Some are clearly hostile to categorise child soldiers as victims.17 Others emphasise their capacity for autonomy and resistance18 or their willingness to
join armed forces or groups19 either as a result of prior political engagement20 or to support a
cause,21 warning against overly-humanitarian narratives depicting child soldiers merely as
puppets of adult cruelty. In this study, the term ‘victim’ is not used as a clumsy pa(ma)ternalistic way to stigmatize child soldiers as fragile or deny them any ability to understand, reason or judge. Considering them, partly as victims, does not equal to deny all children any maturity or resilience. Yet, maturity and ability to reason rationally or even enjoying killing,22 does not
shield them whatsoever from brainwashing, being submitted to or witnessing atrocities – and therefore, from becoming victims in the legal sense i.e., a person harmed mentally or physically by a crime or other wrong.23 Therefore, I chose this hybrid qualification, not as synonymous of
‘innocent’, ‘vulnerable’ or ‘passive’ but for its underlying legal significance and consequences in the assessment of ulterior perpetration.
Furthermore, former child soldiers do not forfeit their victim status under the sole observation that, as adults, they allegedly became perpetrators of atrocities. The ‘victim’ face
13 Whether crimes committed by child soldiers could qualify as international crimes, namely whether, as children
they could have the required mens rea is not included in this study.
14 See Article 11 of The Paris Principles (n 11). 15 Drumbl 2016, p.218.
16 See Baines 2009.
17 See Peters and Richards 1998: child soldiers are ‘neither dupes nor victims’, p.109. 18 Denov 2010, p.136-141.
19 Drumbl 2012, p.62-79; Rosen 2007, p.298-300. 20 Abye 2015.
21 See Rosen 2005.
22 See Pr. Wessells, Trial Hearing Transcript, ICC-02/04-01/15-T-176-ENG, 15 May 2018, p.21 (22-23)
(hereinafter ‘Pr. Wessells Testimony’).
of this hybrid status in fact withstands time, the nature of ulterior crimes or the number of victims. Sonja Grover disagrees with such a ‘victim-perpetrator’ qualification, considering that ‘victim’ and ‘perpetrator’ implicate distinct states of minds mutually exclusive.24 According to
Grover, Ongwen either is a perpetrator – having the requisite mens rea for the commission of international crimes – or he is not, in case his years of submission to coercion and brainwashing by the LRA preclude a finding of the required mens rea for the charged crimes.25 Consequently,
such a victim-perpetrator status would legally make sense only in case of a guilty verdict associated with a mitigation of the sentence based on the former victimization.26 These
observations necessitate a few clarifications. First, the hybridity I refer to in order to describe the status of (former) child soldiers is not meant to be a legal categorization per se, but a practical designation, which captures the legal issues likely to arise with regards to their criminal responsibility as ulterior perpetrators. Second, I am of the view that until a final determination is made on the legal status of the accused (either guilty-perpetrator or not-guilty-victim), on the contrary, he precisely stands in a grey area between a victim and a perpetrator, in which the hybrid categorization urges to examine the perpetrator’s components (i.e., charged crimes) through the prism of the victim’s ones (i.e., victimization as child soldier). This hybrid categorization is therefore tenable, in this sense where it entails a specific assessment of criminal liability, precisely meant to utterly determine whether the accused is a victim (not guilty) or a perpetrator (guilty).
2. The three patterns of victimization in the making of a child soldier
‘Victimization’ is to be understood as the process by which an individual becomes a victim, through the infliction of emotional and/or physical sufferings.27 The victimization
inflicted upon child soldiers follows a strict and recurrent pattern. Abduction, brainwashing (or indoctrination) and violence are used for the sake of turning children into ‘living-weapons’ (i.e., human-beings acting on demand, without contending orders) and bereave them of self-determination and free agency to the extent possible.
Abduction (i.e., being forcibly taken away against one’s will) – albeit not the only mode of recruitment of child soldiers – has been designated by the ICC Office of the Prosecutor (OTP)
24 Grover 2012, p.254. 25 Ibid.
26 Ibid.
itself as a ‘particularly egregious form of conscription’.2829 Upon abduction, child soldiers may
be forced to kill family members as part of a ‘no way back home’ strategy,30 ‘sealing’ their
future within the armed group.31 The RUF, AFRC and LRA are well-known for their brutalized
abduction,32 where children as young as 7 or 8 years old were seized during mass ambushes or
raids upon their homes, streets, schools and even orphanages.33 Abduction is meant to recruit
very young children, more receptive to be taught loyalty toward their abductor (e.g., Joseph Kony),34 this latter tending to become a father more than a commander35 that children are eager
to please, namely in doing well at killing.36 As leaving no room for choice, abduction constitutes
the first step towards the destruction of the individual’s free-will and autonomy.
Brainwashing (or indoctrination37) – inflicted even when children ‘voluntary’ join –
intends to secure absolute obedience to the group and render the child receptive to orders.38
Armed groups such as the LRA or ISIS are known for following a well-established system of brainwashing. When by 1988 Kony’s LRA succeeded to the defeated Holy Spirits Movement led by Alice Lakwena, he presented himself as the spirits’ new channel, orchestrated possessions episodes where dressed in a white robe he pretended to be in contact with ‘Ghosts’, and established a LRA code of conduct amounting to biblical commandments.39 Taught to
believe that Kony was a prophet, had spiritual and healing powers, the ability to read in people’s mind40 and shapeshift into animals to spy on those planning to escape,41 children and even adults
28 Ongwen, Prosecution Pre-confirmation Brief, ICC-02/04-01/15-375-AnxC-Red, 15 February 2016, para. 622
(emphasis added).
29 For the distinction between ‘conscription’ and ‘enlistment’ see Prosecutor v. Charles Taylor, Judgement, Case
No. SCSL-03-01-T, 18 May 2012, para. 442; The Prosecutor v. Thomas Lubanga Dyilo, Appeal Judgment, Case No. ICC-01/04-01/06-3121-Red, 1 December 2014, para. 278. Even in the case of ‘enlistment’ (‘voluntary’ recruitment) the consent of the child cannot be used as a valid defence to a charge of war crime, see Lubanga, CoC, ICC-01/04-01/06-803-tEN, para. 247.
30 Fleck and Bothe 2013, para. 1343; Drumbl 2012, p.80. 31 Pr. Wessells Testimony (n 22), p.51 (5).
32 Drumbl 2012, p.64.
33 Machel 1996, ‘The Impact of Armed Conflict on Children’, para. 37. 34 Baines 2009 (n 16), p.169; Baines & Nolen (n 5).
35 Pr. Wessells Testimony (n 22), cited by Baines & Nolen (n 5).
36 Pr. Jeannie Annan, Yale University Psychologist, cited by Baines and Nolen (n 5); See also Mark Kersten, ‘The
Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’, Justice in Conflict, 12 April 2016, <
https://justiceinconflict.org/2016/04/12/the-life-and-times-of-dominic-ongwen-child-soldier-and-lra-commander/> accessed 5 June 2020.
37 The two terms will be considered synonymous as there is no consensus on the differences between them (namely
the degree of coercion involved), if there are any.
38 Bloom 2019.
39 C.J. Chivers, ‘“All people are the Same to God”: An Insider’s Portrait of Joseph Kony’, The New-York Times,
31 December 2010, <https://atwar.blogs.nytimes.com/2010/12/31/an-insiders-portrait-of-joseph-kony/> accessed 5 June 2020.
40 Ongwen, Defence Brief for the CoC, ICC-02/04-01/15-404-Red3, 03 March 2016, para. 17-25. 41 Baines and Nolen (n 5).
were thus bound to an absolute discipline and obedience if they seek protection and survival.42
For its part, ISIS instituted a gradual indoctrination (or ‘socialization’) to have youth genuinely espouse the ideology and secure the long-lasting duration of the group.43 Crucially,
brainwashing strongly suggests that a (former) child soldier actions and choices are neither entirely personal (in this sense where it would reflect a genuine and private engagement toward the criminal act), nor free. In fact, in John Dewey’s widely recognized conception of responsibility of free actions and free will as autonomy, free actions are those which express ‘ourselves’ (i.e., the agent’s own conception of an end to be reached).44 According to Gary
Watson, this is hardly applicable in cases where individuals’ conceptions of their own ends result from indoctrination or brainwashing.45 As a result, following 27 years of brainwashing
where he was taught to embrace LRA ends and goals, Ongwen’s ulterior choices to commit crimes, even as an adult, can hardly be considered free and autonomous.
Finally, violence as a form of victimization, encompasses both inflicted upon the child soldier (victim-variant) or by the child soldier upon other recruits or civilians (perpetrator-variant). Regardless of their mode of recruitment, age, maturity or the armed group in which they operate, 100% of children are submitted to human sufferings – at least to the most basic ones, such as deprivation of food.46 Besides enduring beatings as part of their training or
punishment,47 threats of death48 and domestic servitude, boys and girls are equally tortured
through sexual violence (inflicted by male commanders as well as senior wives) or that they are forced to inflict on others.49 On the other hand, the violence child soldiers are forced and/or
trained to inflict on others (albeit may not be systematic50) is part of a process of
‘normalization’51 or ‘desensitization’52 to violence, meant to immune them or undermine their
feeling of disapprobation towards it – usually fostered by the use of alcohol and drugs.53 As
such, it may reach an unprecedented amount of savagery, with in extreme cases, the opening of
42 Ongwen, Defence Brief for the CoC (n 40) para.17. 43 Bloom 2019.
44 Watson labels this conception of responsibility ‘self-disclosure’, see Watson 1996, referring to Dewey, Outlines
of a Critical Theory of Ethics (1891, Reprint, New-York Hilary House, 1957).
45 Watson 1996.
46 Dr. Schauer 2009 Lubanga Report, p.11. 47 Baines & Nolen (n 5); Denov (2010), p.121-143.
48 Monica Mark, ‘Joseph Kony child soldier return to terrorized boyhood village’, The Guardian, 23 July 2013,
<https://www.theguardian.com/world/2013/jul/23/joseph-kony-child-soldier-return-uganda-lra> accessed 15 June 2020.
49 See Aijazi, Amony & Baines 2019.
50 See Drumbl 2012, p.85. See also Dr. Shauer 2009 Lubanga Report, p.10-12 for a detailed study pertaining to
the various forms of exposure to violence.
51 Drumbl 2012 p. 81; Nyamutata 2020, p.3. 52 Almohammad 2018, p.19; Bloom 2019, p.205. 53 Denov 2010; Drumbl 2012.
the stomachs of pregnant women and the removal of the fetuses,54 the ruthless and systematic
amputation of limbs with machetes used by the RUF as a weapon of terror,55 or the regular
cutting of lips, noses and ears perpetrated by LRA child soldiers.56 Most importantly, as
explained by the Prosecution Experts himself, Pr. Weierstall, such a perpetration of violence lead up to develop ‘appetitive aggression’ i.e., a positive feeling associated with the perpetration of violence.57 Developed as a ‘survival mechanism’ where being rewarded for cruelty renders
the commission of atrocities meaningful58 – though the number of children displaying it is not
unanimous, ranging from ‘many’ (according to Pr. Weierstall)59 to ‘under 5%’.60 Weierstall
therefore explains that when control towards ‘intra-specific killing’ (i.e., against another human being) is not learnt or is diminished, as it is for child soldiers, brutality towards human-beings appears fascinating and appealing (or ‘appetitive’).61 This, specifically precludes to assess
former child soldiers willingness to perpetrate violence as that of an average person.
Ongwen went through each and every of these forms of victimization. Abducted in 1988 at the age of 9 years old on his way to school, he was too small to walk to the rebel’s camps and had to be carried on the back of other fighters for several days.62 After having been told that
his parents were killed and ordered to forget about his past, he went through rituals to purify him of the sins of his former life (e.g., covered with shea butter oil to be protected during battles) and taught absolute loyalty.63 Then, shortly upon his abduction, he ‘experienced’ the killing of
four children who tried to escape and of his own cousin-sister,64 and when barely 15, under the
command of his ‘lapwony’ (i.e., ‘teacher’ in Acholi) Vincent Otti, he was presumably forced to participate in the massacre of more than 300 persons in the village of Atiak (Uganda), to punish civilians and abduct children.65 Psychological experts all agree that as a result of this
victimization, a child remains ‘changed forever’ –66 and accordingly, a former child soldier
cannot be expect to assess and control his behaviour or refrain from acting as any average person eligible to criminal responsibility.
54 Mark (n 48); Denov 2010, p.123.
55 Used as a campaign to prevent from voting, see Pham 2005, p.115. See also Denov 2010. 56 Crenshaw in Goldstein & Brooks 2013, p.312.
57 Meyer-Parlapanis, Weierstall, Nandi,Bambonyé, Elbert & Crombach 2016. 58 Mark (n 48), citing Verena Erlt a clinical psychologist.
59 Ibid.
60 Pr. Wessells Testimony (n 22), p.21 (17). 61 Elbert, Weierstall & Schauer 2010. 62 Baines & Nolen (n 5); Baines 2009, p.169. 63 Baines & Nolen (n 5); C.J. Chivers (n 39).
64 Ongwen, Prosecution Closing Brief (n 8), para. 461. 65 Baines & Nolen (n 5); Kersten (n 36).
II. The impact of victimization on ulterior perpetration: a practical and moral analysis
1. Child soldiers, victimization and agency: passive dupes or autonomous agents?
The actus reus component of criminal liability requires a voluntary conduct, conscious and controlled (i.e., which includes the capacity to have done otherwise) on the part of the perpetrator.67 The recruitment and use of child soldiers neither are pure cruelty nor sadism but
remains motivated, amongst other things, because children are said to be more easily malleable than adults due to their reduced ability to assess risks and feelings of invulnerability,68 therefore
more inclined to behave cruelly.69 Their alleged psychological vulnerability is nurtured by
recruiters to make the child reacting mechanically to stimuli (i.e., orders from their superiors) so that ‘if you tell them to kill, they kill’.70 This paper seeks to demonstrate that in the case of
former child soldiers, and especially Ongwen’s, the voluntariness requirement may be impaired due to this ‘mechanic-like’ state they adopt in the course of their captivity, eventually turning into true reflexes (i.e., an involuntary response) – remaining even after the captivity.71
Accordingly, Ongwen’s (highly probable) propension to act mechanically for 27 years, might have induced a loss of physical control upon his ulterior acts (otherwise committed in the very same context, both in nature and gravity, in which he was operating as a child soldier) likely to fit the ‘automatism’ common law ‘defence’. In negating the voluntariness requirement part of the actus reus, (non-insane) automatism is akin to an alibi (i.e., denial of an element of the crime72) rather than to a true defence (i.e., which does not deny the underlying commission of
the act) and entitles the accused to a complete acquittal.73 For the sake of the demonstration, I
will use the ‘living-weapon’ analogy since in my view, it captures better the borderline case of child soldiers, who trained to act on command are nevertheless said to retain some degree of humanity, and therefore agency.
67 Keiler & Roef 2019.
68 Schauer & Elbert 2010, p.316. 69 Happold 2008, p.62.
70 Human Rights Watch, ‘Early to War: Child soldiers in the Chad Conflict’, 2007, p.20, citing a Senior Officer
in the Chadian National Army.
71 See eg, Monica Mark (n 48). 72 Ferzan in Deigh & Dolinko 2011.
73 See R v Parks, [1992] 2 S.C.R. 871: ‘Automatism, although spoken of as a "defence", is conceptually a sub-set of
the voluntariness requirement, which in turn is part of the actus reus component of criminal liability. An involuntary act, including one committed in an automatistic condition entitles an accused to an unqualified acquittal.’
The quandary actually lies in this balance between their ‘mechanic-like’ condition and remaining agency. In 2012 in her address on the sentencing of Thomas Lubanga, the ICC Prosecutor Fatou Bensouda described child soldiers as ‘trained to kill and rape’ and directed ‘to kill everyone regardless of whether they [are] men, women or children’,74 implying that they
are trained to act quasi-mechanically. Similarly, in the course of the Ongwen proceedings, Pr. Wessells declared that the majority of child soldiers ‘did not become robots’75 – meaning that a contrario some do. Still, Viktor Frankl, a former prisoner of the Theresienstadt concentration
camp, considered that no matter how much people are constrained, they are never deprived of agency.76 Same is commonly said about child soldiers,77 and in March 2020 during the closing
statements, the Legal Representative of Victims (LRV) Paolina Massidda, considered that raising victimization as a former child soldier (or the ‘once a victim, always a victim’ defence) ‘negates the paramount principles of human resilience and agency’.78 Yet these conclusions do
not have much incidence on the following assessment which is not dealing with the general concept of agency as a component of human dignity and resilience, but with ‘agency’ as the legal requirement of autonomous human action necessary to ascribe criminal liability.79
Therefore, the issue is not to be addressed in terms of ‘human principles’ but of legal ones, the question being whether the accused’s agency has been limited to the extent that it would deny the actus reus requirement and that the attachment of criminal liability to his acts would be unfair.
Automatism applies when the actor’s self-control is negated,80 due to a mental illness
falling short of insanity, such as psychosis or PTSD.81 Therefore, where the Prosecution alleges
that Ongwen’s traumas and especially PTSD do not amount to insanity,82 the non-insane
automatism provides a valid alternative. Besides the requirement of a total loss of control (instead of reduced or partial),83 the cause leading to automatism must arise from an external source – as
opposed to an internal disease or malfunction which would render the automatism insane.84
Traumas resulting from child soldiering (e.g., PTSD), precisely derive from an external source
74 See ICC Prosecutor’s address on the sentencing of Thomas Lubanga (n 4). 75 Pr. Wessells Testimony (n 22), p.21 (17).
76 See Drumbl 2016, p.224-225 referring to Frankl, Man’s Search for Meaning, Beacon Press 2006. 77 E.g., Denov 2010; Drumbl 2012.
78 Ongwen, LRV Closing Statement Transcript, ICC-022/04-01/15-T-257-ENG, 10 March 2020, p.42 (25) & p.43
(1-3) (hereinafter ‘LRV Closing Statement’).
79 Fletcher 1998. 80 Fletcher 2000.
81 Keiler & Roef 2019 (n 67).
82 Prosecution Closing Brief (n 8), para. 390, 470.
83 Attorney-General’s Reference (No 2 of 1992) [1993] 3 WLR 982. 84 Bratty v Attorney General for Northern Ireland [1963] AC 386.
(i.e., the violence inflicted by human-beings). Such conditions of victimization in fact led to a finding of automatism in domestic cases. For instance, in the English case R v T (1990), a woman was raped three days prior committing an armed robbery. Diagnosed with a PTSD, the Court considered that she had been acting in a ‘dream-like’ state and that rape, likely to have a devastating effect on the average person, otherwise satisfied the requirement of an ‘external factor’.85 In the Canadian case of R v Parks (1992), the sleepwalking condition was successfully
raised as automatism, and led to the acquittal of the defendant on the charge of murder.86
The ‘mechanic-like’ state or ‘living-weapon’ condition of former child soldiers – and Ongwen’s in particular, conditioned in the LRA for 27 years – far exceed the traumas or conditions suffered in these domestic examples, in all likelihood rendering them eligible to an automatism-alibi. While the ICC is not precluded from relying on or adopting domestic legal concepts,87 this does not mean, however, that the common-law automatism-alibi ought to be
applied lock-stock-and-barrel within the international criminal law (ICL) context – but carefully interpreted and adapted. Specifically, if one considers the various modes of liability and the number of crimes charged, which in addition, occurred over an extended period of time (2002-2005). The automatism-alibi should either withstand the seventy charges, or alternatively, would imply to raise a sort of protracted state of automatism – all things considered, not improbable. Firstly, in view of Ongwen’s prolonged captivity within the LRA, accordingly suggesting that he never broke-up with the ‘mechanic-like’ state he experienced as a child soldier; and secondly, considering the context in which the crimes were committed i.e., as an extension of those perpetrated as a child soldier.
As a consequence, on a very practical level, the victimization suffered as a former child soldier, in adversely affecting the voluntariness to act, provides a specific ground to deny the underlying commission of the offence.
85 R v T [1990] Crim LR 256. 86 R v Parks (n 73).
87 For instance, in the case of William Ruto and Joshua Arap Sang, TCV relied on the ‘mistrial’ procedural
common-law concept, not enshrined within the ICC framework, to declare a ‘mistrial without prejudice’ (See
Situation in the Republic of Kenya, Decision on Defence Applications for Judgments of Acquittal,
ICC-01/09-01/11-2027-Red-Corr, 5 April 2016, para. 192). The Prosecutor further relied the mistrial procedural device in her appeal against the acquittal of Gbagbo and Blé Goudé (See Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Prosecution Notice of Appeal, ICC-02/11-01/15-1270-Corr 17-09-2019, para.13).
2. The impact of victimization on ulterior perpetration or the tension between law and morality
While law remains typically defined as the enforceable body of rules that governs any society,88 and morality as rules of right and proper conduct,89 the adjudication of former child
soldiers slightly displaces the debate from law to morality. First, this is due to a tension pertaining to the determination of wrongfulness (i.e., the illegality of the conduct). In law, an act is wrongful unless – legally – justified by extraordinary circumstances (eg, self-defence).90
Still, what if the act appears morally justified to the perpetrator? Cruelest child soldiers have a better chance to survive in the bush91 and for some of them, shooting even becomes ‘just like
drinking a glass of water’.92 Thus, violence becomes morally justified, either for its own sake
(i.e., killing is right, especially for those who developed appetitive aggression) or as a means to survive (i.e., killing is necessary). As a result, child soldiers’ moral law (i.e., rules to which individuals feel themselves subjects93) may not be the same as ours. As an adult, Ongwen
allegedly acted in a manner most of them consider blatantly inappropriate. But as a former child soldier enslaved in the LRA for 27 years, hardly captures the wrongfulness of his alleged crimes as we do, considering that ‘[…] if I committed a crime through war, I am sorry’.94 That an act
materializes as morally justified to the offender, does not preclude to characterize it as legally wrong. However, it may certainly prevent to conclude that the actor normally perceived the unlawfulness of his acts as would any other average person - the willingness to commit crimes ought therefore to be assessed on a different standard.
Alternatively, the actor may see the act merely as a sin (i.e., a depart from the path of duty established by God) but not legally wrong. In 2018 during the trial hearings, Dr. Segane Musisi testified that, insofar as many African religions believe in the Supreme being of ‘Nyarubanga’, children like Ongwen, learn from a very young age what is right and wrong, to
88 Law & Martin 2009. 89 Garner 2009 (n 23). 90 Fletcher 1998, p.80-86.
91 Elbert, Weierstall & Schauer 2010.
92 Errol Barnett, ‘Ex-Child Solider: “Shooting became just like drinking a glass of water”’, CNN, 9 October 2012,
available at <https://edition.cnn.com/2012/10/08/world/africa/ishmael-beah-child-soldier/index.html> accessed 15 June 2020.
93 Law & Martin 2009.
94 See Moses Akena, ‘Ongwen speaks out on why he quit LRA’, 19 January 2015,
<https://www.monitor.co.ug/News/National/Ongwen-speaks-out-on-why-he-quit-LRA/688334-2593818 pdgo8vz/index.html#:~:text=In%20an%20interview%20at%20the,with%20LRA%20leader%20Joseph%20Kony .&text=%E2%80%9CSince%20that%20time%2C%20there%20have,to%20defect%2C%E2%80%9D%20Ongw en%20said.>: on the first time Ongwen was interviewed after he surrendered, (emphasis added), accessed 15 June 2020.
feel guilt and fear punishment from ‘Nyarubanga’ for their wrongful acts.95 Expected by the
LRV,96 this analysis seemingly implies that Ongwen was able to capture the wrongfulness of
his acts. Nonetheless, a person’s presumed religious beliefs cannot constitute a valid standard to assess his criminal responsibility, since a personal set of moral values (i.e., religion) cannot be expected to fill in the gaps left by an impossibility to rationally appreciate the unlawfulness of one’s acts (as an ordinary person would do so).
Moreover, law and morality collide when moral principles originating from the majority of the social corps (i.e., one must pay for the atrocities he committed) grow stronger than legal ones (i.e., one can be held criminally responsible only if he acted voluntary and intentionally). Besides ordinary morality (i.e., principles of what is right and wrong), Lon Luvois Fuller distinguishes between the ‘morality of aspiration’ that is to say, the morality of Excellence, of the ‘fullest realisation of human powers’ and the ‘morality of duty’ or ‘the most obvious demands of social living’.97 This latter is of specific relevance here, where the majority of the
social living is calling for Ongwen’s condemnation, with no or little consideration for his former victimization as a child soldier.98 Moral judgments (i.e., what Ongwen did is outrageously
wrong) of the majority, form the basis of the ascription of criminal liability. The impact of victimization on ulterior perpetration, as questioning Ongwen’s criminal responsibility, conflicts with the very first goal of the ICC (i.e., ending impunity) amounting to an absolute moral principle. Yet in such cases, moral values, even that of the majority, should not defeat legal principles which constitute the basis of a fair justice.
The ultimate quandary lies in the question as to whether law and morality should act in tandem – or, should morality penetrate the ambit of criminal adjudication. The question is to be answered in the affirmative. H.L.A. Hart, in line with legal positivism, advocates that law (i.e., law as it is) and morality (i.e., law as it ought to be) should remain separated,99 while Fuller
believes in an ‘internal morality of law’ where principles of legality (eg, clarity, predictability, non-retroactivity) amount to a morality.100 In contemporary cases, law and morality are
95 Dr. Segane Musisi, Trial Hearing Transcript, ICC-02/04-01/15-T-177-ENG, 23 May 2018, p.87-88 (hereinafter
‘Dr. Segane Musisi Transcript’).
96 See ibid: ‘Professor, now, your answer is yes, which I expected.’, p.88 (12). 97 Fuller 1969.
98 Eg, Ongwen, Prosecutor Opening Statement, 6 december 2016, Transcript ICC-02/04-01/15-T-26-ENG, p.39
(1-6) (hereinafter ‘Prosecutor Opening Statement’); Paolina Massida’s alleged declarations to the press: ‘... for many of them -- many victims -- it doesn't 20 make sense that the trial drags on ... because in their view Dominic Ongwen is guilty 21 from the very first day. So, this trial shouldn't even be happening.’, ICC-02/04-01/15-T-179-Red-ENG, 18 September 2018, p.71 (19-20).
99 Hart 1997.
intertwined where the latter (i.e., law as it ought to be) drove by public opprobrium, tends to enter the courtroom at the benefice of the victim – rarely of the accused’s. In her opening statement, Fatou Bensouda declared that the ICC ought not ‘decide whether [Ongwen] deserves sympathy’,101 seemingly closing the door to any non-legal consideration. Yet, in the ICTY case
of Dražen Erdemović,102 Judge Antonio Cassese admitted that ‘[Erdemović] situation raise[d]
issues of the greatest importance for law and morality’.103 What is called ‘sympathy’ and sounds
like an undeserved leniency, ought to be better described as compassion, required by proportionality considerations. Proportionality ensures that law, in ascribing moral and legal responsibility, is fair and right (i.e., moral, as understood by Fuller). Law ought to be proportionate and coherent in its application where the situation of the accused requires so; where circumstances, absent to the ordinary person, affect the accused physical and mental conditions, ultimately bearing upon perpetration.
101 Prosecutor Opening Statement, p.37 (9).
102 Dražen Erdemović fought during the Bosnian war in the Mladic’s Bosnian-Serb army. On July 1995, at the age
of 24, he was ordered to kill Bosnian-Muslims. When he refused, he was told to ‘stand in line with the rest of them’ and finally personally executed about 70 persons. Indicted by the ICTY, he pleaded guilty and eventually submitted a defence of duress. On appeal, duress was denied as a complete defence but led to a mitigation of the sentence (5 years of imprisonment).
Part II.
Child soldiering as a violation of human rights law: consequences
on the assessment of ulterior perpetration
In light of the fact that children are owed a heightened protection, this part inquiries whether the violation of the right not to be a child soldier means that their later act should be evaluated differently. This question is to be answered in the affirmative. This part has been inspired by the speculations and shortcuts seemingly used in the course of Ongwen’s trial, too conveniently introduced as a war lord, with petty consideration for the violation of his rights as a child. To this extent, this paper introduces human rights law (HRL) as a basis to appraise the criminal liability of these adult perpetrators, whom once were child soldiers. It will be argued that the violation of the right not to be a child soldier entails a developmental retardment of the individual, impeding his decision-making capacities and accordingly, is apt to preclude an ulterior finding of criminal responsibility. The ICC being legally permitted – if not required – to interpret and apply its law (e.g., provisions pertaining to the mens rea) through the prism of HRL, Ongwen ought to be entitled to raise the violation of his rights as a child, including the ‘international legal protection’ devoted to child soldiers, to benefit from a specific evaluation of his (alleged) criminal liability.
I. Human rights law as a yardstick to assess criminal responsibility: exploring the possibilities
2. The (internationally recognized) right not to be a child soldier
Since time immemorial, children, either infants or adolescents, have been distinguished from adults, standing as a specific category in law.104 Besides their young age or physical and
psychological immaturity, children otherwise symbolize future and renewal. Therefore, in order to fully assume their ulterior responsibilities as adults, they must be provided with the best assistance possible. This justifies a heightened protection in each and every aspect of their life – familial, social, intellectual, educative and even criminal (i.e., should they commit an offence) – in time of peace and war. Accordingly, if balanced with (human) rights devoted to adults, children’s certainly stand apart and above.
Child soldiering does not merely negate the most basic rules of humanity, but also every right owed to the child. Whatever the reasons, culture or differences as to the age of the majority,105 benefits of military training,106 patriotism or willingness to join,107 none of them
constitute valid grounds to lure children into the atrocities of warfare. Humanity and dignity of the child are not negotiable. The right not to be a child soldier is internationally recognized in HRL (and international humanitarian law (IHL)), as well as considered a rule of customary international law.108 For children under 15, it is enshrined in HRL since 1989, within the
Convention on the Rights of the Child (CRC). The African Charter on the Rights and Welfare of the Child (ACRWC, 1990), the International Labor Organisation (ILO) Convention No. 182 (1999) and the Optional Protocol to the CRC (OP-CRC, 2000) all extended this right to any child under 18 years of age – albeit the OP-CRC failed to establish an absolute 18-ban on child soldiering, ‘voluntary’ recruitment of children between 15 and 17 years old being still permitted for States.109
The underlying protected human rights, more than the prohibition itself – the rights to development, health, nutrition, education, security, dignity and to grow up in a family environment – justify using HRL as an autonomous standard to assess later perpetration. These rights conceptually constitute ‘sub-sets’ of the right not to be a child soldier. The violation of the right not to be a child soldier, necessarily result in the violation of these underlying rights. Moreover, the rights of the child are usually divided into self-determination rights (i.e., rights exercised by the child himself,110 such as the right for children above 15 to engage into armed
forces) and welfare rights (i.e., rights granted because considered vital to the well-being of children and not dependent on their willingness to exercise them).111 The afore-mentioned rights
constitute welfare rights, and therefore are not conditioned to the child being a valid right-holder, nor can they be waived or forfeit. In becoming the perpetrator of international crimes, a child soldier is not less entitled to raise the violation of his rights – neither is the adult perpetrator.
105 Bothe, Partsch, Solf & Eaton 2013, p.535, footnote 14. 106 See Happold (2008) (n 102).
107 See Abye 2015; Denov 2010; Drumbl 2012; Rosen 2007.
108 At least for children under 15, see Prosecutor v. Sam Hinga Norman, Decision on Preliminary Motion Based
on Lack of Jurisdiction, Case No. SCSL-2004-14-AR72(E), 31 May 2004, para. 20
109 See the combination of Articles 2 and 3(1) of the OP-CRC. This provision, common to the CRC and its Optional
Protocol, is primarily due to a compromise for States still recruiting children in their army such as the United States or United Kingdom, see Happold 2008.
110 Happold 2008, p.69. 111 Ibid.
It is largely recognized that child soldiering does have continuous effects (i.e., still ongoing after the captivity formally ceased) and entails long-term psychological consequences.112 Then, as further discussed below, traumas and dysfunctions remain through
early to late adulthood. Considering this nexus between the violation of the right not to be a child soldier and ulterior perpetration – the former being likely to condition the latter, I wish to argue that an adult-perpetrator such as Ongwen, should be able to validly raise the violation of his rights as a child. Just like the child-perpetrator is entitled to a specific assessment of his criminal responsibility,113 the adult-perpetrator whose internationally recognized rights as a
child have been violated, and which violation bears upon later perpetration, is entitled to a personalized assessment of his criminal responsibility. In essence, this implies to substantially raise the standard of proof required to establish the mens rea requirement. Hence, speculations (e.g., ‘Mr. Ongwen could have escaped’114) and mere inferences from circumstantial evidence
– though constituting the usual method to judicially establish the mens rea115– mainly used by
the Prosecution,116 should not constitute valid methods to ponder on the requirements of
criminal responsibility. Instead, it should be proceeded to an evaluation in concreto. Namely, whether in the case at hand the victimization suffered as a child soldier (i.e, the violation of every right entitled to a child), impacted his cognitive and volitional capacities to the extent that it prevented to form a valid mens rea.
3. The denial of the right to development of the child and its (potential impact) on the evaluation of the mens rea
The right to physical, mental, spiritual, moral and social development of the child is formally enshrined in Article 6 of the CRC and Article 5 of the ACRWC.117 This study is
specifically concerned with the right to mental (or psychological) development in a large sense. Human-beings are meant to develop from infancy to adulthood – adolescence (between 14 and 18 years old – even 21) being a crucial period.118 Therefore, (former) child soldiers such
112 Amongst others, see Bensouda’s address on the sentencing of Lubanga referring to ’permanent’ and ‘ongoing’
traumas; Fleck and Bothe 2013: ‘long-term’ para. 1343; Shauer Lubanga Report 2009: ‘chronic’, p.11.
113 E.g., Articles 4 and 5 of the ‘Beijing rules’, Article 40 CRC.
114 Ongwen, Prosecution Closing Brief, ICC-02/04-01/15-1719-Red, 24 February, p.191-192 (hereinafter
‘Prosecution Closing Brief’).
115 Cassese (2003), p.177.
116 Prosecution Closing Brief (n 114), para. 179, 190.
117 See Article 27 and Article 32 of the CRC, and para. 5 of the ACRWC Preamble. 118 Scott & Steinberg 2008, p.31.
as Ongwen, spend ‘critical years’ of their development in captivity.119 The nexus between child
soldiering and denial of children’s right to development, has explicitly been recognized within the ICC context. Precisely, by the ICC Prosecutor herself who considered that ‘children (…) are deprived of the opportunity to grow and develop in a nurturing environment’;120 experts in
the Lubanga case: ‘[experiences as a child soldier] hamper children’s healthy development and their ability to function fully even once the violence has ceased.’;121 as well as in the Ongwen
case, where Pr. Wessells testified that ‘the formation of the brain architecture that actually enables self-regulation, mood control is compromised, and that has lifelong implications.’122 In
the case at hand, Ongwen, has been denied his right to development from the age of 9 to his forty’s, and obviously received any psychological support during this period. As a result, he cannot be considered having reached the normal volitional and cognitive capacities of an adult, necessary to ascribe criminal responsibility. In proceeding to a practical examination of the denial of child soldiers’ right to development, I will use the work of Pr. Elizabeth S. Scott and Pr. Laurence Steinberg,123 pertaining to child and adolescent psychological development,
comparing and, if relevant, applying it to the case of child soldiers.
Scott and Steinberg identify two types of developments occurring during adolescence and bearing upon decision-making capacities.124 On the one hand, the cognitive development,
involving capacities of understanding and reasoning,125 meant to improve from childhood to
adolescence.A period Ongwen spend in captivity acting as a ‘living-weapon’, where abilities of understanding and reasoning were roughly replaced by that of obeying. On the other hand, the ‘psychosocial’ development, which depends on four factors affecting maturity: vulnerability to peer influence (i.e., adolescents make choices either in response to coercion, searching for approval or due to ‘fear of rejection’), evaluation of risks (i.e., adolescents use a ‘risk-reward calculus’), future orientation (i.e., when making decisions, adolescents envisage short- more than long-term consequences of their actions) and self-management (i.e., adolescents tend to be more impulsive than adults).126 In the case of child soldiers, each of these
psychosocial parameters is patent and increased. First, child soldiers are trained to always make
119 Schauer & Elbert 2010, p.335.
120 Statement of Fatou Bensouda on the International Day against the use of Child Soldiers (n 4).
121 Dr. Schauer 2009 Lubanga Report; Lubanga, Sentencing Judgment, ICC-01/04-01/06-2901, 13 July 2012, para.
40.
122 Pr. Wessells Testimony (n 22), p.47 (10-18).
123 Leading experts on child and adolescent development. Their work was notably cited in the 2005 landmark
case of Ropers v. Simmons 543 U.S. 551 abolishing death penalty for minors.
124 Scott & Steinberg 2008, p.35. 125 Ibid, p.26.
choices (i.e., killing or maiming) as a response to direct coercion (eg, threats to death or bodily harm) or to seek the approval of their recruiters.127 Second, more than any other persons are
they acquainted with ‘risk-reward calculus’ where being rewarded (i.e., in remaining alive, being provided with food or promoted) makes sense of the crimes they commit.128 Third, child
soldiers, deployed on the front lines, are much more killed than adults,129 thus not raised to
reason on the long term. And fourth, child soldiers’ impulsivity is specially fostered by recruiters, searching for impulsive and fierceness reactions.130 Child soldiers cognitive and
psychosocial developments remain on pause during captivity – or during 27 years for Ongwen. This results in a low capacity to reason and understand and an abnormal (i.e., increased) immaturity of judgment, implying a deficit in their decision-making capacities.
Besides, adolescent development remains influenced by the ‘social context’ in which they evolve.131 Whilst three conditions are necessary for a successful development,132 all of them
are denied to child soldiers. Firstly, the presence of at least one adult invested in the adolescent’s success (or ‘authoritative parenting’)133 – where recruiters are invested in their success at killing.
Secondly, membership in a peer group that praises ‘pro-social behaviour and academic success’134 – where antisocial armed groups certainly praise everything but academic success.
And thirdly, involvement in activities that foster the adolescent’s ‘autonomous decision-making and critical reasoning’135 – where every aspect of the child’s autonomy is undermined. This
contradicts the conclusions of Dr. Catherine Abbo, one of the three Prosecution Experts – who never examined Ongwen, but nevertheless concluded that: his ‘early psychological development was good (…), that he developed social bound within the LRA and that it was not until shortly his capture and transfer to The Hague, that his mental health began to deteriorate’.136 On the contrary, it can validly be concluded that the ‘social context’ in which
Ongwen grew-up since the age of 9 onwards, impeded any chance of healthy development. Finally, scientific studies have established that during adolescence, crucial developments occur in regions pertaining to long-term planning, impulsivity and evaluation of
127 Monica Mark (n 48). 128 Ibid.
129 Dr. Schauer 2009 Lubanga Report, p.7. 130 Ibid.
131 Scott & Steinberg, p.56-59. 132 Ibid.
133 Ibid. 134 Ibid. 135 Ibid.
