When Victims Become Perpetrators
The Prosecution of Victim-Perpetrators and the Case of Dominic Ongwen
Master Thesis for the Master of Arts in Holocaust and Genocide Studies, University of Amsterdam and Institute for War, Holocaust and Genocide Studies (NIOD)
1 July 2016
Supervisor: Dr. Thijs B. Bouwknegt Second Reader: Dr. Kjell Anderson
Abstract
Dominic Ongwen was abducted by soldiers of the Lord's Resistance Army (LRA) as a boy and he was forced to become a child soldier. Inside the LRA, he continuously rose in rank until he was allegedly given the rank of a brigadier-general in 2004. In his alleged position as LRA commander, he allegedly planned and participated in the attacks on the Pajule, Odek, Lukodi, and Abok internally displaced people's camp (IDP camp) in Northern Uganda between October 2003 and June 2004 for which, among other charges, he is going to stand trial at the International Criminal Court (ICC) in The Hague, The Netherlands.
Ongwen's abduction and his subsequent career in the LRA raise the question of where the boundary lies between being a victim and being a perpetrator. To analyse this question, three subsidiary questions are evaluated in this thesis. First, how is the question of where the boundary lies between being a victim and being a perpetrator discussed in academic theory? Second, how does theory square with reality? Furthermore, his abduction as a child and his alleged position as a commander as an adult make Ongwen a victim-perpetrator. This raises the third subsidiary question, namely how the international criminal justice system deals with victim-perpetrators.
No consensus exists in perpetrator research on how and why ordinary people turn into perpetrators. With the inclusion of victim-perpetrators and child soldiers in the discussion, the questions asked and the answers provided became more complex and scholarship has moved further away from reaching a consensus on where the boundary lies between being a victim and being a perpetrator. Furthermore, even though the reality of the LRA conflict explains how victim-perpetrators are created and what their role is in the conflict, the analysis of Ongwen's career in the LRA does not allow to pinpoint the boundary between being a victim and being a perpetrator. Moreover, the international criminal justice system is designed for cases where a strict division exists between the victim and the perpetrator. The law-makers ignored the possibility of victim-perpetrators entirely. Consequently, the ICC cannot make use of existing theory to know how to deal with victim-perpetrators. Thus, the parties and participants disagree on if and how Ongwen's victim-perpetrator status should be considered in his trial.
This thesis concludes that neither the theory presented in academic literature, nor the reality of the LRA conflict, nor the international criminal justice system have provided an answer to the question where the boundary lies between being a victim and being a perpetrator. However, the upcoming trial against Dominic Ongwen has the possibility to advance the field of study.
Table of contents
1. Introduction ... 1
2. Theory ... 5
2.1 Current Perpetrator Research ... 5
2.2 The Position of Child Soldiers in Theory ... 13
2.3 Victim-perpetrators in Research ... 17
2.4 Child Soldiers as Victim-Perpetrators ... 23
2.5 Intermediary Conclusion ... 26
3. The Lord’s Resistance Army ... 27
3.1 The Historical Background of the Conflict ... 27
3.1.1 Origins of the Conflict ... 27
3.1.2 Referral to the International Criminal Court ... 30
3.2 The Organisational Structure of the LRA ... 31
3.2.1 Composition of the LRA ... 31
3.2.2 Organisational Structure and Ranks ... 32
3.3 Child Soldiers in the LRA ... 35
3.4 Dominic Ongwen in the LRA ... 40
3.5 Intermediary Conclusion ... 45
4. The International Criminal Court ... 46
4.1 Introduction of the ICC ... 46
4.2 The Protection of Child Soldiers by the ICC ... 47
4.2.1 Protection of Children in International Law ... 47
4.2.2 Crime of Recruitment and Use of Child Soldiers in the Rome Statute ... 49
4.2.3 Protection from being prosecuted as child soldier by the ICC ... 53
4.3 Lubanga and Ntaganda and their Use of Child Soldiers ... 54
4.3.1. Introduction ... 54
4.3.2. Thomas Lubanga Dyilo ... 54
4.4 Dominic Ongwen at the ICC ... 59
4.5 The Issue of Victim-Perpetrators at the ICC ... 62
4.6 Intermediary Conclusion ... 70 5. Conclusion ... 72 6. Bibliography ... 74 6.1. Primary Sources ... 74 6.2. Literature ... 76 6.3. Websites ... 80
When Victims Become Perpetrators
1
1. Introduction
On 26 January 2015 a middle-aged man, flanked by two guards, limped into the courtroom II of the International Criminal Court (ICC) in The Hague, The Netherlands. He appeared to feel out of place in the courtroom thousands of kilometres away from his native Uganda, probably wearing a suit and tie for the first time in his life. On that day the alleged former Lord's Resistance Army (LRA) rebel commander Dominic Ongwen made his first appearance before the ICC, which had issued a warrant of arrest for him nearly ten years earlier for crimes against humanity and war crimes.1 Ongwen was accused of no less than 70 criminal charges,2 the most ever in an international criminal trial.3 However, even though Ongwen was allegedly one of the highest ranking LRA commanders at the time of his surrender to Central African Republic troops,4 he had not voluntarily joined the rebel organisation. In the 1980s, Ongwen was abducted by LRA rebels on his way to school as a boy aged between ten5 and fourteen.6 After being initiated and indoctrinated into the LRA,7 Ongwen rose through the ranks until he reportedly obtained the rank of a brigadier general and became the commander of the so-called Sinia brigade,8 one of four operational brigades of the LRA.9
Holocaust historian Raul Hilberg divided the people who experienced the Holocaust in Europe between 1940 and 1945 into three groups - perpetrators, victims and bystanders.10 However, writer and Holocaust survivor Primo Levi pointed out that these categories are not always clear-cut.11 He introduced the concept of the gray zone, which describes the unclear moral boundaries between victims and perpetrators.12 The study of child soldiers confirms the
1 International Criminal Court (ICC), Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Case
Information Sheet (Case no. ICC-02/04-01/15: The Hague, 2016).
2 International Criminal Court (ICC), Office of the Prosecutor (OTP), Situation in the Republic of Uganda.
Prosecutor v. Dominic Ongwen: Document Containing The Charges (Case no. ICC-02/04-01/15: The Hague, 21 December 2015).
3 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v.
Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016 (Case no. ICC-02/04-01/15: The Hague, 25 January 2016), 47.
4 BBC, ‘LRA Rebel Dominic Ongwen Surrenders to US Forces in CAR’, BBC News, 7 January 2015, accessed
24 June 2016, http://www.bbc.com/news/world-africa-30705649.
5 Erin K. Baines, ‘Complex Political Perpetrators : Reflections on Dominic Ongwen’, The Journal of Modern
African Studies 47, no. 2 (2009): 163.
6 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v.
Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016 (Case no. ICC-02/04-01/15: The Hague, 21 January 2016), 19.
7
Baines, ‘Complex Political Perpetrators’, 170.
8 International Criminal Court (ICC), Office of the Prosecutor (OTP), Situation in the Republic of Uganda.
Prosecutor v. Dominic Ongwen: Pre-Confirmation Brief, 21st December 2015, ICC-2/04-01/15-375-Conf AnxC, (Case no. ICC-02/04-01/15: The Hague, 21 December 2015), 48–49.
9
Ibid., 40.
10 Raul Hilberg, Perpetrators, Victims, Bystanders: The Jewish Catastrophe, 1933-1945 (New York:
HarperCollins, 1993), ix.
11 Primo Levi, The Drowned and the Saved (New York: Vintage International, 1989), 36–69. 12
2 existence of the gray zone. Although the predominant view is that child soldiers are innocent victims of their adult abductors,13 the case of Dominic Ongwen shows that the same person can be a victim as well as a perpetrator.14 For the purpose of this thesis, a perpetrator is an individual who committed an international crime and a victim is defined as an individual who was negatively affected by an international crime. Therefore, the term victim-perpetrator is used to describe a victim of an international crime, who turned into a perpetrator of an international crime.
Dominic Ongwen's story is far from unique and stands as an example for the growing number of children abducted and forced to become child soldiers.15 Yet, "Ongwen is the first known person to be charged [by an international criminal jurisdiction] with the war crimes of which he is also a victim"16 and therefore Ongwen's appearance and future trial before the ICC raise a number of pertinent questions. Is a child soldier turned commander a victim, perpetrator or victim-perpetrator? When does a victim turn into a perpetrator? And can and should an international criminal court attempt to prosecute a victim-perpetrator?
Consequently, the main research question of this thesis is "where lies the boundary between being a victim and being a perpetrator?" This thesis analyses perpetrators of international crimes, such as genocide, crimes against humanity and war crimes, who have been victims of the same crimes they perpetrated later on in their lives. The main focus lies on abducted children who were forced to become child soldiers and then became rebel commanders, which themselves ordered the abduction of children. The first subsidiary question of this thesis is "how has the main research question been discussed in academic theory?" Chapter two is going to look at the existing literature on perpetrators and analyse whether scholars have written about victim-perpetrators and what their conclusions are. The second subsidiary question is "to what extent does the theory square with reality?" To answer this question, chapter three analyses the conflict between the LRA and the Ugandan government between 1986 and the present. It analyses when and how victim-perpetrators are created and what their role is in the conflict. The last subsidiary question is "how does the international criminal justice system deal with victim-perpetrators?" Chapter four replies to this question by studying the ICC cases against the Congolese and Rwandese militiamen Thomas Lubanga Dyilo and Bosco Ntaganda who are both accused - and in the case of Lubanga convicted - for the enlistment, conscription and use of child soldiers under the age of
13
Mark A. Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012), 7.
14 Baines, ‘Complex Political Perpetrators’, 163–77. 15 Ibid., 164.
16
3 fifteen years.17 Furthermore, Chapter 4.5 monitors the argumentation of the prosecution, defence, the legal representative of victims and the judges concerning Dominic Ongwen's victim-perpetrator status in his confirmation of charges hearing18 between the 21 and 27 January 2016, which I have attended.19
Knowing where the boundary lies between being a victim and being a perpetrator is not only relevant in theory, but also in reality. The research contained in this thesis allows to move away from the dominant view of the child soldier as a faultless, passive victim20 and to advance the theoretical discussion on child soldiers by acknowledging the complexities of child soldiering and by varying the picture painted of child soldiers. In addition, law professor Marc Drumbl pointed out that the dominant view on child soldiers also informs policy decisions of international and intergovernmental organisations and influences the emergence of international law.21 Therefore, a more nuanced view of child soldiers would lead to a better informed and more nuanced policy responses and to more nuanced applications of international law, which surpasses the victim-perpetrator dichotomy. Furthermore, comprehending where a person stops being a victim and starts being a perpetrator and vice versa allows the parties and participants at the International Criminal Court (ICC) to make more intricate arguments, which reflect the complexities of reality more closely.
The methodology used in this thesis is interdisciplinary, using history, law and political science. The method of analysis is a content analysis based on primary and secondary sources. The primary sources were produced during the confirmation of charges hearing in the ICC's case against Dominic Ongwen and consist of the Document Containing the Charges,22 the pre-confirmation briefs written by the prosecution,23 the defence24 and the legal
17
International Criminal Court (ICC), Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet (Case no. ICC-01/04-01/06: The Hague, 2016); International Criminal Court (ICC), Situation in the Democratic Republic of the Congo. Prosecutor v. Bosco Ntaganda: Case Information Sheet (Case no. ICC-01/04-02/06: The Hague, 2015).
18 The purpose of the confirmation of charges hearing is to determine whether the case as presented by the
Prosecutor is sufficiently established to warrant a full trial. The Rome Statute of the ICC mandates that this is decided by answering the question whether there are substantial grounds to believe that the person committed the crimes charged. (Decision on the confirmation of charges against Dominic Ongwen, p. 8)
19 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v.
Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen (Case no. ICC-02/04-01/15: The Hague, 23 March 2016), 7.
20
Drumbl, Reimagining Child Soldiers in International Law and Policy, 7.
21 Ibid., 9.
22 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The
Charges.
23
ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Pre-Confirmation Brief, 21st December 2015, ICC-2/04-01/15-375-Conf AnxC.
24 International Criminal Court (ICC), Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic
Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016 (Case no. ICC-02/04-01/15: The Hague, 3 March 2016).
4 representatives of the victims,25 the court transcripts of the confirmation of charges hearing26 and the judges' decision on the confirmation of the charges.27 Furthermore, the primary sources also include the personal observations I made while attending the confirmation of charges hearing in person on the 21, 22, 25 and 26 January 2016 at the International Criminal Court in The Hague, The Netherlands.
However, this thesis has limitations. First, I was unable to attend the totality of the confirmation of charges hearing in person and did not attend the confirmation of charges on 27 January 2016. Therefore, I have based my analysis of the happenings in the courtroom that day exclusively on the transcript of the hearing. Moreover, an important limitation concerning the second chapter is that the majority of the literature analysed is based on cases other than the Ongwen case. Literature on Ongwen is still limited, even though his case is increasingly recognised. In addition, this thesis offers generalisations and possible explanations which are based entirely on the one single case of Dominic Ongwen. The general applicability of the findings might, therefore, be limited. Furthermore, at the time of writing, Ongwen's trial has not yet started. It is scheduled to begin in December 2016. Therefore, the analysis of this thesis is exclusively based on the limited amount of sources produced before and during the confirmation of charges hearing. The vast amount of sources which will be produced during the trial phase are missing.
25 International Criminal Court (ICC), Victims’ Legal Representatives, Situation in the Republic of Uganda.
Prosecutor v. Dominic Ongwe: Victims’ Pre-Confirmation Brief (Case no. ICC-02/04-01/15: The Hague,18 January 2016).
26
ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016; International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016 (Case no. ICC-02/04-01/15: The Hague, 22 January 2016); ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016; International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 26 January 2016 (Case no. ICC-02/04-01/15: The Hague, 26 January 2016); International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 27 January 2016 (Case no. ICC-02/04-01/15: The Hague, 27 January 2016).
27 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on
5
2. Theory
2.1 Current Perpetrator Research
After the end of the Second World War in 1945 mental health professionals, such as psychiatrist Douglas M. Kelley, clinical psychologist Molly Harrower, psychologists Eric A. Zillmer, Barry A. Ritzler or Robert P. Archer analysed whether the Nazi perpetrators were evil monsters and sadists. However, they came to the conclusion that the majority of perpetrators of international crimes, such as genocide, war crimes and crimes against humanity,28 are normal people and do not carry any particular vicious character traits.29
Among the first scholars to take this position was philosopher and political theorist Hannah Arendt in her five articles published in the New Yorker in 1963,30 on which she based her book Eichmann in Jerusalem.31 Adolf Eichmann had been the Expert on Jewish questions in the Sicherheitsdienst, or S.D. (Security Service of the Reichsführer S.S.),32 and in this position he organized and oversaw the forced emigration of the European Jews between 1938 and 194133 and the deportation of the remaining Jews to death camps between 1942 and 1944.34 After being abducted from his hideout in Argentina in May 1960, Eichmann was brought to trial before the District Court of Jerusalem in April 1961.35 Arendt attended a part of his trial in Israel.36 She described that Eichmann had been normal while committing the crimes, but also while on trial.37 She wrote that "[h]alf a dozen psychiatrists had certified him as 'normal' - 'More normal, at any rate, than I am after having examined him,' one of them was said to have exclaimed."38 This assessment resulted in the birth of the concept of "the banality of evil", which was the subtitle of her book. Yet, Arendt never mentioned the concept in her original articles39 and she did not develop a definition of the banality of evil in her book.40
28 James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass Killing (New York: Oxford
University Press, 2002), 56.
29 Ibid., 59–67.
30 Hannah Arendt, ‘Eichmann in Jerusalem - I’, The New Yorker, 16 February 1963; Hannah Arendt, ‘Eichmann
in Jerusalem - II’, The New Yorker, 23 February 1963; Hannah Arendt, ‘Eichmann in Jerusalem - III’, The New Yorker, 2 March 1963; Hannah Arendt, ‘Eichmann in Jerusalem - IV’, The New Yorker, 9 March 1963; Hannah Arendt, ‘Eichmann in Jerusalem - V’, The New Yorker, 16 March 1963.
31 Hannah Arendt, Eichmann in Jerusalem : A Report on the Banality of Evil, Rev. and enlarged ed, Penguin
Twentieth-Century Classics (Harmondsworth etc: Penguin, 1994), xi–xii.
32
District Court of Jerusalem, Judgement against Adolf Eichmann (Case no. 40/61: Jerusalem, 11 December 1961), para. 61.
33 Ibid., para. 63–78. 34 Ibid., para. 90–112. 35
Arendt, ‘Eichmann in Jerusalem - I’, 56.
36 Arendt, Eichmann in Jerusalem, xi.
37 Arendt, ‘Eichmann in Jerusalem - I’, 64–70. 38 Arendt, Eichmann in Jerusalem, 67. 39
6 Only a number of years after the publication of the book, Arendt explained that with the "banality of evil" she had actually meant the banality of evildoers and that she had not intended to say that the evil is mundane, but that the individuals committing the evil were not monsters, but normal, banal individuals.
" I spoke of 'the banality of evil' and meant with this no theory or doctrine but something quite factual, the phenomenon of evil deeds, committed on a gigantic scale, which could not be traced to any particularity of wickedness, pathology, or ideological conviction of the doer, whose only personal distinction was perhaps extraordinary shallowness. However monstrous the deeds were, the doer was neither monstrous not demonic, and the only specific characteristic one could detect in his past as well as in his behavior during the trial and the preceding police examination was something entirely negative: it was not stupidity but a curious, quite authentic inability to think."41
By the "banality of evil" Arendt meant therefore that Eichmann was not a monster as many assumed he must have been, but an ordinary individual, just like anybody else. He did not possess any specific characteristics which made him different from the majority of the population.42 However, Arendt has been criticized for the limited scope of her observation. She offered generalisations about perpetrators and the nature of evil based on attending parts of one single trial.43 Therefore, her articles and her book have to be considered an interesting observation, but cannot be regarded as a thought-out research based on a representative amount of sources. Furthermore, the French historian and political scientist Jacques Sémelin judged that her conclusion is not applicable to the Einsatzgruppen in Poland, the Interahamwe in Rwanda and the paramilitary groups in Bosnia44 and calls her "a prisoner of her observation method."45 Arendt observed a desk perpetrator who did not participate directly in the killing. The Einsatzgruppen, the Interahamwe and the paramilitary groups, on the other hand, were at the forefront of the bloodshed. Therefore, Sémelin stated that Arendt's observations were not applicable to groups, who were directly involved in murder.
40 Jacques Sémelin, Purify and Destroy: The Political Uses of Massacre and Genocide (London: Hurst &
Company, 2013), 286.
41
Hannah Arendt, ‘Thinking and Moral Considerations: A Lecture’, Social Research 51, no. 1/2 (1984): 7.
42 Sémelin, Purify and Destroy, 287. 43 Ibid., 285–88.
44 Ibid., 285. 45
7 Stanley Milgram, a psychologist at Yale University, was another observer of the Eichmann trial.46 Hearing Eichmann continuously repeat that he only followed orders was the inspiration for what was to become known as the "Milgram experiment". Wanting to find out which factors influence a person to be more or less obedient,47 Milgram designed an experiment where a volunteer in the role of a teacher had to read out a list of words to a learner, who was sitting in a different room. The learner had to memorize the words and repeat them in the right order. Whenever the learner made a mistake, the teacher had to attribute an electric shock, which would increase in strength with each mistake, to the learner. With the increasing voltage of the shocks the learner simulated increasing pain. However, although Milgram aimed to measure an individual's propensity to obey authority, the volunteer had been told that it was an experiment designed to analyse the role of punishment on memorization. Moreover, the volunteer did not know that the learner was an actor and that the electroshocks were in reality not attributed.48 The general expectation had been that individuals would refuse to attribute the shocks if it went against their conscience. Yet, two-thirds of the individuals did obey the orders and "shocked" the learner with the highest - and in reality deadly - voltage.49 Milgram interpreted the result as an indication that a majority of people tends to obey authority figures50 and authors such as the Dutch sociologist and psychotherapist Abram de Swaan came to the conclusion that the majority of people would thus commit atrocities if ordered to do so.51 However, De Swaan also criticised Milgram for ignoring the acts of disobedience.52 According to De Swaan, as different individuals made different decisions in the same situation, the experiment also showed that the personal disposition influences a person's action.53 Furthermore, Milgram seemed to assume that different people in different cultural settings and different periods of time react alike to authority.54 However, it is highly questionable if students in the USA in the 1960s reacted the same way to authority than child soldiers in Uganda in the years 2000 would. It is naive to believe that the same experiment would produce the exact same result fifty years later in a different cultural setting.
46 Alette Smeulers and Fred Grünfeld, International Crimes and Other Gross Human Rights Violations: A Multi-
and Interdisciplinary Textbook (Martinus Nijhoff Publishers, 2011), 211.
47 Stanley Milgram, ‘Behavioral Study of Obedience’, The Journal of Abnormal and Social Psychology 67, no. 4
(1963): 372.
48 Ibid., 372–74. 49 Ibid., 375. 50 Ibid., 376. 51
Abram de Swaan, The Killing Compartments: The Mentality of Mass Murder (New Haven: Yale University Press, 2015), 25–26.
52 Ibid., 24. 53 Ibid., 25. 54
8 In 1971, Philip Zimbardo, professor of psychology at Stanford University, developed the famous experiment studying the dynamics between prisoners and guards - The Stanford Prison Experiment. In the basement of Stanford University, he set up a mock prison and randomly assigned a group of student volunteers to be either prisoners or guards.55 After a few days, the students began to identify and conform increasingly with their roles. The guards became more brutal and the prisoners more passive. In the end, Zimbardo decided to stop the experiment early before it got out of hand.56 The experiment led to two main findings. First, the experiment revealed that individuals, who had not shown any sadistic tendencies at the beginning of the experiment, became increasingly sadistic as the experiment went on.57 Second, Zimbardo concluded that the prisoners' and guards' behaviour was a product of their environment and that therefore any human being in the right situational circumstances is capable of committing evil deeds.58
After the Stanford Prison Experiment, perpetrator research was at a near complete standstil for almost twenty years until Christopher R. Browning published his book Ordinary
Men: Reserve Police Battalion 101 and the Final Solution in Poland in 1992.59 He based his research on the indictments and interrogation protocols of 125 members of the Reserve Battalion 101, a unit of the German Order Police, which were stored in the Agency for the State Administrations of Justice (Zentrale Stelle der Landesjustizverwaltung) in Ludwigsburg.60 Battalion 101 had participated in the deportation of 45 000 Jews to Treblinka and in the shooting of 38 000 Jews61 in Poland during the Second World War in Europe.62 By analysing the composition of Battalion 101 Browning concluded that its members were not specially selected for the task which lay ahead of them. Rather, they were representative of the German male manpower available at that stage of the war.63 The members of Battalion 101 were "middle-aged, mostly working-class, from Hamburg,"64 which is one of the least Nazified cities in Germany.65 Therefore, Browning asserted, they were not chosen because of
55 Craig Haney, Curtis Banks, and Philip G. Zimbardo, ‘A Study of Prisoners and Guards in a Simulated Prison’,
Naval Research Review, no. 30 (1973): 4.
56 Ibid., 9–10. 57 Ibid., 10–11.
58 Thomas Blass, ed., Obedience to Authority: Current Perspectives on the Milgram Paradigm (Mahwah, NJ:
Erlbaum, 2000), 206.
59 Christopher R. Browning, Ordinary Men: Reserve Police Battalion 11 and the Final Solution in Poland:
Reserve Police Battalion 101 and the Final Solution in Poland, New Ed (London: Penguin, 2001).
60 Ibid., xiv–xvi. 61 Ibid., 142. 62 Ibid., xiv. 63 Ibid., 165. 64 Ibid., 164. 65 Ibid., 48.
9 their anti-Semitism.66 However, Browning's fascination with the Battalion 101 resulted from the fact that the Battalion commander Major Trapp offered the men the possibility to opt out and not participate in the shooting of the Jews before their first shooting mission at Józefów on 13 July 1942.67 Yet, only between ten and twenty percent of men of Battalion 101 accepted the offer.68 Browning subsequently investigated, through the court records produced years after the event,69 the reasons for the majority of the policemen to participate in the shooting70. He concluded that it was the policemen's strive for conformity and peer pressure which informed their decision to participate in the killing.71
Browning's work has been heavily criticised by the American sociologist and political scientist Daniel Goldhagen. In 1996, Goldhagen published his book Hitler's Willing
Executioners: Ordinary Germans and the Holocaust in reply to Browning's Ordinary Men.72
Goldhagen criticised Browning for ignoring the Reserve Police Battalion 101 men's anti-Semitism. According to Goldhagen, the explanation for the men becoming mass murderers lies in a specifically German characteristic of the men, namely in the eliminationist anti-Semitism, which Goldhagen claimed was a cultural norm in the German society at the time.73 Goldhagen denied that bowing to peer pressure and striving for conformity, which are traits common to most human beings, not just Germans, resulted in the men of Battalion 101 committing mass murder.74 Therefore, he insisted that the men of Battalion 101 were not ordinary men, but ordinary Germans.75 Other scholars such as sociologist Michael Mann and Abram de Swaan also stated that the members of Battalion 101 understated their anti-Semitic conviction in the judicial interrogations in order to paint a more positive picture of themselves, but Mann and De Swaan do not come to the same radical conclusion as Goldhagen.76
The Dutch criminologist Alette Smeulers is well-known for her typology of perpetrators, which she published in her 2008 book Supranational Criminology: Towards a
66 Ibid., 176–84. 67 Ibid., 1–2. 68 Ibid., 159. 69 Ibid., xiv–xvi. 70 Ibid., 159–89. 71 Ibid., 184.
72 Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (London:
Little, Brown and Company, 1996).
73
Daniel Jonah Goldhagen et al., ‘The “Willing executioners”/ “Ordinary Men” Debate’ (Washington D.C.: United States Holocaust Memorial Museum, 8 April 1996), 10–12.
74 Goldhagen, Hitler’s Willing Executioners, 12. 75 Ibid., 5–9.
76
10
Typology of International Crime.77 While researching perpetrators of international crimes Smeulers realized that individuals participate in crimes in different ways and for different reasons. Consequently, her goal became to propose an all-encompassing typology of perpetrators78 in order to reveal the differences between perpetrators, but also to advance the research on the question of how ordinary people turn into perpetrators.79
Smeuler's analysis resulted in nine different categories of perpetrators.80 The first perpetrator type is the criminal masterminds. They are the powerful, often charismatic central leaders, who incite their followers to commit crimes. Furthermore, the criminal masterminds are often manipulative, arrogant and refuse to listen to criticism, because they believe that they do not make any mistakes.81 The second type of perpetrators are the fanatics. They blame a social group for their hardship and are motivated to commit crimes by hatred, contempt and resentment for that group. The fanatics are often inspired by a fundamentalist ideology. As this second perpetrator type is completely persuaded to support the right cause, they will move heaven and earth to achieve their goal and they are even prepared to die to accomplish their mission. This willingness to do anything to reach their goal makes fanatic perpetrators especially unpredictable.82 The criminals or sadists is the third perpetrator type. The criminals have already committed domestic crimes before the outbreak of mass violence or have shown sadistic tendencies and will, therefore, transition into committing international crimes with ease. However, the criminals only benefit the organisation to a limited degree, because they lack loyalty and discipline and it is thus difficult for the organisation to control them. This perpetrator type always remains a minority among perpetrators.83 The perpetrator type number four is the profiteers. They seize the opportunity to commit a crime in order obtain material goods. The profiteers are motivated by self-interest and greed and see the commission of a crime as a possibility to enrich themselves.84 The careerists, which is the fifth perpetrator type, see the participation in international crimes as a means of advancing their careers. This type's goal is to rise to a better position and gain power. Careerists are law-abiding citizen before the period of collective violence and often ignore the violence around them to continue their life as before. They rarely directly commit the crimes themselves, but
77
Alette Smeulers and Roelof Haveman, eds., Supranational Criminology: Towards a Criminology of International Crimes (Antwerp: Intersentia, 2008), 233–65.
78 Ibid., 240. 79 Ibid., 243. 80 Ibid., 244–63. 81 Ibid., 244–45. 82 Ibid., 246. 83 Ibid., 247–58. 84 Ibid., 249–50.
11 are the organisers behind the crimes.85 The sixth group of perpetrators identified by Smeulers is the devoted warriors. As the devoted warriors strongly believe in the predominant ideology and believe that their actions are legitimate, they are the obedient and loyal supporters of the leader and follow him blindly. They do not question the leader or the ideology and are highly responsible, which makes them ideal state officials.86 The followers and conformists is another type of perpetrator in Smeulers' typology. They go along with the group and bow to peer pressure. The followers assume that their superiors are righteous and feel that they do not have to take responsibility for their actions, because they merely follow their superiors' orders. Smeulers further subdivided the followers or conformists into the subtypes of the obedient followers, the naïve followers and the admirers.87 The compromised perpetrators commit international crimes because they are forced or threatened to do it. They do not agree with the commission of the crimes, but feel that they have no choice but to participate.88 The last type of perpetrators is the professionals. They are generally members of the police, military or the secret service and are trained to be perpetrators. During the training, the professionals are brutalised and taught to strictly obey hierarchies. The aim of the training is to destroy the professionals' personalities and rebuild them as torturers and killers by making them get accustomed to the violence.89 However, Smeulers noted that perpetrators can be motivated by more than one factor. Perpetrators can therefore fall into more than one type or change types when they change their predominant motivation.90
Whereas other scholars have concentrated their research on perpetrators in a specific situation, in a specific time periods or on a specific type of perpetrators, Smeulers aimed to establish an overarching typology of perpetrators.91 However, Smeulers based her analysis on the research of other scholars.92 She did not produce her own sources and she did not test her hypothesis on cases in the field. Furthermore, Smeulers' aim was to create a general typology of perpetrators, but she based her typology on only eight existing typologies.93 This number is too limited to be able to make a representative generalisation.
85 Ibid., 250–51. 86 Ibid., 254. 87 Ibid., 254–56. 88 Ibid., 257–58. 89 Ibid., 258–60. 90 Ibid., 264. 91 Ibid., 240. 92 Ibidem. 93 Ibid., 241–43.
12
The Killing Compartments: The Mentality of Mass Murder was published in 2015 by
the Dutch sociologist and psychotherapist Abram de Swaan.94 He remarked that the "[p]revailing opinion has it that the genocidaires are just ordinary people who are brought to commit mass murder because of the situation they find themselves in, regardless of their personal makeup. In the starkest terms what counts is 'situation, not disposition'."95 However, De Swaan disagreed with the dominant opinion. He argued that even though the situation influences the decisions and behaviour of an individual, the personal disposition also plays an important role.96 Therefore, De Swaan asked if perpetrators possess characteristics which increase their probability of becoming mass murderers.97 He came to the conclusion that a restricted moral consciousness, a low sense of agency and reduced empathy are the three characteristics which increase the likelihood of becoming a perpetrator.98 However, the lack of compassion is the most noticeable characteristic.99 De Swaan explained that the lack of empathy results from a process of dysmentalization.100 He defined dysmentalization as "a regression to a condition marked by (1) weakened superego functions, allowing only for compliance to authority figures and loyalty to immediate peers and close relatives; (2) a lowered sense of personal responsibility; and (3) an absence of empathy for anybody who is not very close."101 It is, therefore, the process of dysmentalization in situations of collective violence which results in reduced empathy for the victims and this facilitates the act of perpetration.102 Yet, Abram de Swaan has established his theory by studying documents on perpetrators. He has not produced his own sources by interviewing perpetrators, such as former Rwandan génocidaires, and consequently, he has not tested his theory by applying it to living perpetrators. Therefore, it is unclear if his theory would pass this test.
The books discussed here analysed how and why an ordinary person turns into a perpetrator. However, they did not consider how a person, who is already a victim of a crime, turns into a perpetrator of the same crime. Thus, they did not research victim-perpetrators. Furthermore, the authors did not assess where the boundary lies between being a victim and being a perpetrator. This thesis tries to fill this gap in scholarship.
94
Swaan, The Killing Compartments.
95 Ibid., 203. 96 Ibid., 23–39. 97 Ibid., 225. 98 Ibid., 247. 99 Ibid., 230. 100 Ibid., 236. 101 Ibid., 250. 102 Ibid., 239.
13
2.2 The Position of Child Soldiers in Theory
The Rome of Statute of the International Criminal Court (ICC) is the first treaty to explicitly criminalise the enlistment, conscription and use of child soldiers as war crimes in its Article 8.103 The ICC prohibits the conscription or enlisting of children under the age of fifteen years into the national armed forces, into armed forces or groups or using them to participate actively in hostilities. Therefore, according to the ICC, a child soldier is defined as a person younger than fifteen years old who is part of a national armed force, an armed force or groups or a person under the age of fifteen who participates actively in hostilities.104 This definition and the protection of children in international law are discussed in more detail in Chapter 4.2. Children become part of armed forces or armed groups in three ways. First, children are abducted and forced to join the group or they are forced to conscript by threat. Second, children join voluntarily and become enlisted. Third, children are born into the organisation and grow up as child soldiers.105
The dominant image of child soldiers in the international discourse is the image of the child soldier as a faultless passive victim. International non-governmental organisations (NGOs), United Nations (UN) agencies, academics and journalists have all internalised this image.106 They explain that former child soldiers are not responsible for the crimes they committed 107 because they were incapable or too immature to understand the consequences of their actions and were unable to protect themselves from getting used by adults to commit crimes.108 "Child perpetrators are [...] victims of criminal policies for which adults are primarily responsible," wrote UNICEF in a 2002 report.109 The image of the child soldier as a faultless passive victim has also become firmly established in international humanitarian law and policy.110 Consequently, international criminal tribunals prosecute only the leaders who abducted children.111 The child soldiers themselves are not be punished 112 because they were indoctrinated and then forced by adult commanders to commit crimes and were often under
103
Roman Graf, ‘The International Criminal Court and Child Soldiers’, Journal of International Criminal Justice 10, no. 4 (2012): 953.
104 UNGA, Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 1 July 2002, Art. 8
(2)(b)(xxvi) and (2)(e)(vii).
105
Drumbl, Reimagining Child Soldiers in International Law and Policy, 13.
106 Ibid., 8. 107 Ibid., 37–40. 108 Ibid., 81. 109
No Peace Without Justice and UNICEF Innocenti Research Centre, ‘International Criminal Justice and Children’ (Rome, September 2002), 34.
110 Drumbl, Reimagining Child Soldiers in International Law and Policy, 8–9. 111 Ibid., 18.
112
14 the influence of alcohol and drugs when they committed their crimes.113 The jurisdiction of the Special Tribunal for Sierra Leone included children between the ages of fifteen and eighteen, but the prosecutor, David Crane decided to exclude former child soldiers from prosecution.114
The Prosecution decided early in developing a prosecutorial plan that no child between 15 and 18 had the sufficiently blameworthy state of mind to commit war crimes in a conflict setting. Aware of the clear legal standard highlighted in international humanitarian law, the intent in choosing not to prosecute was to rehabilitate and reintegrate this lost generation back into society.115
Several renowned scholars support the view of child soldiers as innocent victims. Rtd. General-Major Roméo Dallaire portrayed child soldiers in They Fight Like Soldiers, They Die
Like Children as passive tools which are used by commanders without the children having the
ability to influence their destiny. "Quickly my research began to focus on children being used as weapons of war. Tools used by adults to wage war. Much like a soldier would use his gun or grenade, the child had become another weapon in their repertoire," he wrote.116 Sonja C. Grover, professor of education at Lakehead University in Canada, argued that child soldiers need to be treated as victims of genocide because they were transferred from one group to another which is a crime under the 1948 Genocide Convention.117
"It is here argued […] that in fact these children –whether under and over 15-as: (1) they have been ‘recruited’ (based on an exploitation of their coercive circumstances and/or the use of force) in large part for the purpose of committing atrocity and (2) because their ties to their home communities are broken due to the conflict-related atrocities they have committed; are the victims of genocidal forcible transfer to another group as defined in the 1951 Genocide Convention. It is here contended then that child soldier members of genocidal State or non-State armed units or such units committing mass atrocity are
113 Ibid., 15.
114 David Crane, ‘Prosecuting Children in Times of Conflict: The West African Experience’, Human Rights Brief
15, no. 3 (2008): 14–15.
115
Ibid., 15.
116 Roméo A. Dallaire, They Fight like Soldiers, They Die like Children: The Global Quest to Eradicate the Use
of Child Soldiers (New York, NY: Walker, 2011), 12.
117 Sonja C. Grover, Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged
15
operating under duress and are in fact in a position of slavery or slave-like conditions as victims of genocidal forcible transfer to the murderous armed non-State group or non-State armed force. To charge these children (including youth) for any conflict-related international crimes they may have committed […]is to prosecute the child for doing the ‘labor’ (a worst form of child labor according to the International Labor Organization)from which they were entitled under international law to have been protected by the State and the international community in the first instance."118
Consequently, the child soldier does not carry any responsibility for the crimes he committed. He is a victim of the genocidal transfer and has been forced to commit atrocities.119 Grover's approach denies child soldiers any agency or scope for making their own decisions. Thus, according to her, child soldiers obey orders without questioning or resisting them.
However, a number of scholars have advanced more nuanced images of child soldiers. Law professor Mark A. Drumbl challenged the faultless passive victim image120 and stated that major differences exist between individual child soldiers. While some child soldiers find ways to avoid having to commit crimes, such as refusing or lying to their superior, others willingly participate in atrocities.121 Therefore, Drumbl attributed more agency to child soldiers than the dominant image. He wrote that child soldiers keep some of their capacity to make decisions and judgements.122 In Reimagining Child Soldiers in International Law and
Policy, Drumbl proposed the model of circumscribed action. According to this model, an
actor has the possibility to take action, but also to decide against taking any action. Even though the actor is oppressed, he still has a range of decisions he can take. However, this range is limited by the environment in which the actor is. In this constraining environment, the actor can take short-term decisions. Furthermore, although other actors' decisions and actions affect them, they also have the power to affect others. The model of circumscribed action is a continuum which accounts for the difference in the histories and experiences of the actors.123 Therefore, a child soldier is according to this model constrained in, but not deprived of, his ability to make decisions.124 However, even though Drumbl opposed the image of the
118 Ibidem.
119 Ibidem. 120
Drumbl, Reimagining Child Soldiers in International Law and Policy, 11.
121 Ibid., 16. 122 Ibid., 94. 123 Ibid., 17. 124
16 child soldier as a faultless and passive victim, he agreed that child soldiers should not be prosecuted for their crimes He believed this because he doubted that trials achieve the goals set for them, namely to rehabilitate child soldiers and to reintegrate them into society. Therefore, he argued that criminal prosecution is not suitable for child soldiers.125
Psychologist Jeannie Annan and economist Christopher Blattman also criticised the dominant view of child soldiers as too simplistic. From the survey of war-affected youth, they concluded that children abducted by the Lord's Resistance Army (LRA) retained some of their agency. After being abducted, at least fifty percent of the children remained with the LRA for some time out of their free will.126 Anthropologist Alcinda Honwana also argued that the child soldiers possess some agency.127 According to Drumbl, she defined agency as "the scope of discretion and influence available to a person in a subordinate social situation."128 However, Honwana distinguished tactical from strategic agency. Whereas tactical agency is the possibility "to cope with and maximize the concrete, immediate circumstances of the military environment in which [the child soldiers] operate,"129 strategic agency is the ability to make long-term decisions, because one is in a position of power.130 Honwana called tactical agency also the agency of the weak, because the individual exercising tactical agency is not in a position of power, but uses any power he or she can get in his position of weakness to turn it into agency.131 Child soldiers exercise tactical agency and therefore use the space and freedom ceded to them to control whatever aspect of their lives they can. Child soldiers talk about their former lives when nobody is listening, give their abductors false names and play stupid in order not to participate in military operations.132 They use any opportunity given to them to influence their life as much as possible in the short-term.133 Even though Honwana attributed tactical agency to child soldiers, she argued that they should not be prosecuted by courts.134 However, she spoke in favour of traditional purification and reintegration ceremonies.135
125
Ibid., 21.
126 Jeannie Annan, Christopher Blattman, and Roger Horton, ‘The State of Youth and Youth Protection in
Northern Uganda: Findings from the Survey for War Affected Youth’ (UNICEF Uganda, September 2006), 60.
127 Alcinda Honwana, Child Soldiers in Africa, Ethnography of Political Violence (Philadelphia, PA: University
of Pennsylvania Press, 2006), 4.
128 Drumbl, Reimagining Child Soldiers in International Law and Policy, 96. 129 Honwana, Child Soldiers in Africa, 71.
130 Baines, ‘Complex Political Perpetrators’, 180. 131
Drumbl, Reimagining Child Soldiers in International Law and Policy, 96.
132 Honwana, Child Soldiers in Africa, 71.
133 Drumbl, Reimagining Child Soldiers in International Law and Policy, 96. 134 Ibid., 97.
135
17 In conclusion, half of the research on child soldiers used in chapter 2.2 has been based on theoretical considerations and half of it on field research. Blattmann and Annan have conducted their own field research. They are the authors of the Survey of War Affected Youth in Uganda. They conducted their research between 2005 and 2006 by collecting data from 11016 households and from 741 male youths on their well-being and on their abduction and experience in the LRA.136 Alcinda Honwana has also based her book on field research. She conducted her research on child soldiers in the civil wars in Angola and Mozambique.137 Roméo Dallaire has mostly drawn on his own experience with child soldiers while writing
They Fight like Soldiers, They Die like Children.138 Drumbl's model of circumscribed action is not based on observations made in the field but is the result of theoretical observations.139 Drumbl and Grover focused their research on the international law concerned with child soldiers. Therefore, both authors based their analysis on law and policy documents and not on case studies in the field.140
2.3 Victim-perpetrators in Research
In human rights discourse the concepts of the victim and the perpetrator are presented as directly opposed and distinct concepts, which do not overlap.141 The victim is defined as innocent, pure, morally superior and lacking any responsibility for his own victimization.142 The perpetrator, on the other hand, is thought to be guilty, impure and responsible.143 Therefore, if an individual is placed in one of the two groups, they are automatically associated with these characteristics.144 Furthermore, both groups are presented as being homogenous. One victim is thus exactly identical to any other victim and the same is valid for perpetrators.145 However, scholars increasingly rebel against this simplistic view. As Tristan Anne Borer, professor of government and international relations, stated,
"If truth is the first casualty of war, then complexity must surely be the second. In the midst of conflict, it is easier and more satisfying for people to think in
136
Tim Allen and Koen Vlassenroot, eds., The Lord’s Resistance Army: Myth and Reality (London: Zed Books, 2010), 133.
137 Honwana, Child Soldiers in Africa, 4.
138 Dallaire, They Fight like Soldiers They Die like Children, 15. 139
Drumbl, Reimagining Child Soldiers in International Law and Policy, 17.
140 Grover, Child Soldier Victims of Genocidal Forcible Transfer, vii–ix; Drumbl, Reimagining Child Soldiers in
International Law and Policy, 6–25.
141 Tristan Anne Borer, ‘A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South
Africa’, Human Rights Quarterly 25, no. 4 (2003): 1088–89.
142 Erica Bouris, Complex Political Victims (Bloomfield, CT: Kumarian Pr Inc, 2007), 48. 143 Ibid., 32–48.
144 Ibid., 48. 145
18
terms of absolutes. People want to see things in terms of black and white, with little acknowledgment that there may, in fact, be many shades of gray. And so, under Apartheid, people were either victims or they were perpetrators, and the reality of a much more complex relationship between the two was buried."146
Borer pointed out, that in reality the victims and perpetrators are not distinct and separate, but sometimes victims are also perpetrators and perpetrators also victims.
Among the first to recognize that victims and perpetrators cannot always be clearly distinguished and that the concepts overlap is the writer and Holocaust survivor Primo Levi. In his 1986 The Drowned and The Saved Levi pointed out that to disentangle the complexity of reality and to understand the world people tend to simplify reality and propose explicative theories. Only by simplifying the world around them are people able to understand it and decide on their actions.147 However, Levi acknowledged that the reality is not as simple as people wish it to be.148 In order to account for the complexity of reality, he formulated the concept of the "gray zone".149 In the German World War Two concentration camps two categories of prisoners existed, which cannot be clearly attributed to the category of victims or perpetrators - the Kapos (Kameradschaftspolizei or comrade police) and the
Sonderkommandos (special units).150 The Kapos were prisoners who worked for the concentration camp administration in being part of the police force which controlled the concentration camp inmates.151 The Sonderkommandos were composed of inmates and their task was to empty the gas chambers and burn the bodies.152 The Kapos and the
Sondercommandos consisted of prisoners, thus victims, but they worked for the Nazis, thus
the perpetrators. They can, therefore, not be clearly assigned to the category of either victims or perpetrators. They inhabited the "gray zone" between victims and perpetrators.153 The "gray zone", therefore, describes the uncertain lines of the moral boundaries between concentration camp prisoners.154
Hannah Arendt criticized the Judenräte, or Jewish Councils, in Eichmann in
Jerusalem. She accused them of supporting the destruction of their own people by composing
146
Ibid., 1116.
147 Levi, The Drowned and the Saved, 36. 148 Ibid., 36–37.
149 Ibid., 42. 150
Meierhenrich, Genocide, 369.
151 Ibidem.
152 Levi, The Drowned and the Saved, 50. 153 Ibid., 42; Meierhenrich, Genocide, 369. 154
19 lists of persons and their wealth, by handing out the yellow Jewish stars and by handing over the property owned by Jews to the Nazis.155 Her writing on the Judenräte made emotions fly high and she was even accused of trying to erase the distinction between victims and perpetrators.156 However, the reactions to Arendt's criticism of the Judenräte need to be analysed in the light of Arendt questioning the innocence, purity and lack of moral responsibility of the victim. She contested the innocence of the Judenräte and thus the innocence of them as victims. Even though she did not use this exact term, she stated that the Judenräte were in fact not victims, but victim-perpetrators. The outraged reactions are therefore a result of her challenging the innocence of the victim.157
The concept of victim-perpetrator has been discussed by scholars from different disciplines such as law,158 criminology,159 sociology,160 international relations161 and transitional justice.162 Accordingly, various definitions of the concept exist and different terms are used to name the same or very similar concepts. The international studies scholar Erica Bouris introduced the concept of "complex political victim" to describe victims who carry some responsibility for their own victimization because they supported the perpetrator in their victimization.163 She used the example of Arendt's Judenräte, as discussed above, to illustrate her concept.164 Importantly she insisted that even though these victims carry a degree of responsibility for their victimization, they remain victims. Therefore, instead of being a pure and innocent victim, the complex political victim is an impure and partially guilty victim, but nonetheless a victim.165 Thus, in her discussion on complex political victims Bouris failed to break out of the categories of victim and perpetrator and remained inside the victim versus perpetrator dichotomy. Yet, her achievement was to notice that the category of the victim is not as homogeneous as thought until then,166 but she did not to bridge the gap between victims and perpetrators and excluded victim-perpetrators from the discussion.
155
Arendt, Eichmann in Jerusalem, 115.
156 Bouris, Complex Political Victims, 61. 157 Ibid., 10.
158 Luke Moffett, ‘Reparations for “Guilty Victims”: Navigating Complex Identities of Victim–Perpetrators in
Reparation Mechanisms’, International Journal of Transitional Justice, 4 December 2015, 146–67; Abbe Smith, ‘The “monster” in All of Us: When Victims Become Perpetrators’, Suffolk University Law Review 38, no. 2 (2005): 367–94.
159 Smeulers and Haveman, Supranational Criminology, 257–58. 160
Marti Tamm Loring and Pati Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’, Journal of Emotional Abuse 2, no. 1 (2001): 3–14.
161 Baines, ‘Complex Political Perpetrators’.
162 Julie Bernath, ‘“Complex Political Victims” in the Aftermath of Mass Atrocity: Reflections on the Khmer
Rouge Tribunal in Cambodia’ 10, no. 1 (2016): 46–66.
163 Bouris, Complex Political Victims, 10. 164 Ibid., 53–72.
165 Ibid., 90. 166
20 Political scientist Erin Baines built on Bouris' complex political victim and presented the concept of the "complex political perpetrator."167 It describes girls and boys who grow up in an environment of constant crisis and who have reverted to violence to survive, but also prosper by using violence.168
"By becoming a perpetrator, a child or youth can gain some degree of control over his or her life. […] [T]he state is absent, unable to extend protection or provide basic goods or services to affected populations. In its absence, war opens spaces for social, economic and political innovation into which excluded children and youth can be either forced or willingly enter and become upwardly mobile."169
Baines maintained that the children either decide to voluntarily join a rebel group or that they are forced to do so. Once inside the organisation, the children use violence in order to secure wealth. Thus, violence becomes a political instrument in the hands of boys and girls who are excluded from politics and deprived of any other means of expression.170 As Baines has developed the concept in order to explain the case study of the former LRA soldier Dominic Ongwen171 and keeps the theoretical explanation of the concept brief,172 it is by applying the concept to the case study that the complex political perpetrator becomes understandable.
Erin Baines' complex political perpetrator was heavily criticised by Sonja C. Grover, professor of education at Lakehead University. Grover stated that the victim-perpetrator is a social science concept and does legally not make sense. Legally speaking a victim has either not committed any crimes or is not accountable for them, because certain facts exclude the criminal responsibility of the victim. A perpetrator, on the other hand, has committed atrocities and is criminally responsible for them. From a legal standpoint, it is impossible to be both a victim and a perpetrator at the same time.173 "The concept of victim-perpetrator simply sidesteps the issue of accountability by assigning it on the one hand and removing it entirely on the other, and is therefore not viable as a legal concept."174 According to Grover
167 Baines, ‘Complex Political Perpetrators’, 164. 168 Ibid., 180. 169 Ibidem. 170 Ibidem. 171 Ibid., 164–65. 172 Ibid., 180–81.
173 Grover, Child Soldier Victims of Genocidal Forcible Transfer, 254. 174
21 the concept of victim-perpetrator only makes sense if "what is meant by the term is a perpetrator who is culpable but for whom there are mitigating factors reducing culpability though not eliminating it in which case the individual is still a perpetrator."175
Social worker and sociologist Marti Loring and psychologist Pati Beaudoin, as well as lawyer Abbe Smith, approached the concept of victim-perpetrator from the perspective of abused woman, who subsequently committed a crime.176 The women in Loring and Beaudoin's study lived in the USA and included African-Americans, Latinas, Whites and Asians. Their age ranged from 18 to 64.177 Smith concentrated her analysis on Aileen Wuornos, a US American citizen, born in 1956 in Troy, Michigan.178 Wuornos had been abandoned by her mother a few months after her birth and ad been abused by her grandfather as a child. She was raped at thirteen, thrown out her home at fourteen and ended up selling her body to survive. She was executed by lethal injection for killing seven of her clients.179 Smith's research focused on how abuse can lead to the individual committing crimes later in life. She was of the opinion that victims turn into perpetrators because of the abuse they suffered on one or several previous occasions in their lives.180
"But among those who have committed a serious crime, it is the rare perpetrator who had not also suffered. It is the rare death row inmate whose life does not read like a case study of extreme deprivation and abuse. It is the rare juvenile incarcerated in an adult prison for rape or murder who has had anything other than the cruellest of childhoods. As a career indigent criminal defense lawyer, I live in the world of victims-turned-perpetrators. I am often more surprised by my damaged clients who do not commit serious, violent crimes than by those who do."181
Through the analysis of the life of Aileen Wuornos, Smith concluded that a cycle of violence turns victims into perpetrators. The abuse Wuornos suffered conditioned her
175 Ibidem.
176 Loring and Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’; Smith, ‘The “monster” in All of
Us’.
177
Loring and Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’, 5.
178 Smith, ‘The “monster” in All of Us’, 371. 179 Ibid., 370–81.
180 Ibid., 369. 181
22 behaviour towards the opposing sex and this forced her into prostitution. Her profession again made her vulnerable to further abuse, until she decided to arm and defend herself.182
Loring and Beaudoin, on the other hand, defined a victim-perpetrator as an abused woman who is, as part of the abuse, forced to commit crimes.183 They remarked that "[a]ll of these crimes appear to have been committed in a context of terror, including prior physical and/or emotional abuse that involved threats to the victim-perpetrator and/or to her significant other."184
Similar to Loring and Beaudoin, Dutch criminologist Alette Smeulers also conducted research on individuals who were forced to commit crimes.185 She introduced the "compromised perpetrator" to account for perpetrators who commit crimes because they are "pressured, forced, coerced or tricked into doing so."186 She specified that the perpetrator does not agree with the crimes, but they are forced to participate because they are vulnerable to pressure.187 Smeulers' conceptualization of the victim-perpetrator is wider than Loring and Beaudoin's because Smeulers included any perpetrator who is forced to commit a crime in the category of "compromised perpetrator", while Loring and Beaudoin concentrated on abused women as perpetrators.
Finally, the lawyer Luke Moffett defined victim-perpetrators as "individuals who are members of non-state armed, paramilitary or terrorist groups, or state forces who commit political violence but have been victimized through identifiable international crimes, such as [enforced] disappearances, extrajudicial killings, sexual violence, torture, serious injury or ill-treatment caused by other actors."188 Moffett's victim-perpetrator belongs therefore in a first instance to an armed group which commits violence and is only in a second instance a victim of a crime under international law.189
The definitions analysed above can be roughly divided into two groups. On the one hand, Luke Moffett conceptualized a perpetrator who subsequently turned into a victim, because of crimes that were committed against him after he had already committed crimes against others. Therefore, Moffett conceptualised the perpetrator-victim.190 At a first glance, it seems as if Bouris also analysed the perpetrator-victim. However, her focus lay on the
182
Ibid., 370–81.
183 Loring and Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’, 3–4. 184 Ibidem.
185 Smeulers and Haveman, Supranational Criminology, 257–58. 186
Ibid., 257.
187 Ibidem.
188 Moffett, ‘Reparations for “Guilty Victims”’, 151. 189 Ibidem.
190
