Comment on the arguments presented by the Defense and Prosecution in The Prosecutor v. Dominic Ongwen, case nº ICC-02/04-01/15, with regards to the criminal responsibility of former child soldiers.

The Prosecutor v. Dominic Ongwen is the first case in the International Criminal Court (ICC) which involves the criminal responsibility of a former child soldier. The involvement of children in armed conflicts can make them victims at first and then perpetrators in the future. Dominic Ongwen is accused of having committed crimes established by the Rome Statute, while he took part in the Lord's Resistance Army (LRA), a rebel group, in northern Uganda. This paramilitary group abducted the defendant when he was a child in order to make him a soldier in the conflict. On his journey with the rebel group, he became a loyal, efficient and fearless soldier, until he reached the commander level. People who came across Mr. Ongwen tell different versions of his situation as a victim and perpetrator. Some remember that Mr. Ongwen took risks by setting people free from kidnapping. However, others say they have seen him killing pregnant women and boiling people in pots. Like other members of the LRA, Mr. Dominic Ongwen had contradictory behaviors that reveal the complexity of his character, but he was obedient and skilled enough to be promoted to a position of leadership in the group. The ICC investigated the crimes in which Mr. Ongwen participated between 2002 and 2005 in refugee camps organized by the government, in the northern region of Uganda. Thus, in June 2005, when Mr. Ongwen was about twenty-nine years old, his first warrant of arrest was issued by the ICC, and the same happened to other LRA participants, including Joseph Kony, the group’s leader. Dominic Ongwen is charged with seventy crimes listed in the Rome Statute, counted between crimes against humanity and war crimes. Regarding crimes against humanity, the alleged ones are: murder and attempted murder, torture, sexual slavery, rape, enslavement, forced marriage as an inhumane act, persecution and other inhumane acts. As to war crimes: attack against the civilian population, murder and attempted murder, rape, sexual slavery, forced marriage, torture, cruel treatment, outrages upon personal dignity, destruction of property, pillaging, in addition to recruitment and use of children under the age of fifteen to actively participate in hostilities. On March 23, 2016, the accusations were confirmed by the Pre-Trial Chamber II and Ongwen’s case began to be judged by the ICC Trial Chamber IX and it is still in progress. It is also important to mention that there are representatives of the 4,115 victims in the case. They were allowed by the ICC chamber to participate in the trial giving their testimonies against the defendant. These people are residents of northern Uganda and have suffered different types of crimes committed by Mr. Ongwen. At the time of the crimes, an estimated amount of 35,000 people were affected by the attacks. At present, the international community is before a peculiar case of a child who was a victim and became the author of serious crimes. In this writing sample, the Defense’s arguments will be firstly analyzed and then, the Prosecution’s. Mr. Ongwen’s Defense argues that his criminal responsibility and liability should be excluded under the article 31(a)(c)(d) of the Rome Statue as he was under duress . Moreover, it is said that he suffers from a mental disease that destroys his capacity of appreciating the illegality or nature of his actions, especially at the time of the crime. In addition, the Defense claims that Mr. Ongwen does not understand the charges (based on the opinion of the Defense’s mental health experts) and all his actions should be attributed to LRA leader Joseph Kony. Dominic Ongwen's Defense declares that the accused was abducted by the LRA in 1987, when he was about nine years old, on his way to school. His mother was allegedly murdered by the LRA and his father disappeared. In the LRA, Mr. Ongwen was reportedly indoctrinated, tortured, threatened and beaten by the rebels. Additionally, he would have been forced to practice acts of violence, as well as to witness scenes of hostilities. According to the defendant's lawyers, Mr. Ongwen was led to believe that Joseph Kony, the leader of the LRA, had complete control of the group and required discipline from the combatants. In addition, Mr. Kony is believed to have supernatural and spiritual powers among LRA members. Mr. Ongwen would have suffered coercion since his abduction and feared to be murdered, especially if he tried to escape. Thus, it is alleged that his participation in the group and his position of leadership would be justified by his ability to survive, which would be better than others’ under duress. Moreover, it is said by the Defense that the defendant's criminal responsibility should be excluded because his actions were a consequence of the coercion he suffered under threat of death or serious injury, under the article 31(1)(d) of the Rome Statute. The defendant, his family and community were allegedly threatened too. According to the Defense, he would have acted in a necessary and reasonable manner under the situation, satisfying the grounds to exclude the criminal responsibility . Furthermore, it is said by Mr. Ongwen's lawyers that Mr. Kony’s acts and other circumstances were beyond his control. The defendant is said not to have intention to cause harm to people, but only to survive slavery. The article 30(1) of the Rome Statute establishes the mental element of crimes related to the criminal responsibility and liability: “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.”. Mr. Ongwen’s Defense argues that the mental element of the crime would not be present in the case since the accused would have no intention to commit the imputed crimes. He was allegedly coerced to do so. The Defense claims that indirect co-perpetration should not be regarded as a mode of liability because there is no such legal provision in the Rome Statute. This concept would come from customary international law. Furthermore, Mr. Ongwen's Defense claims that the Prosecution did not demonstrate the defendant's planning and effective participation in the alleged crimes. There would be neither significant contribution from his actions nor any possibility of avoiding the atrocities. His behavior would have been based on reasonableness and necessity under duress. As to the crime of forced marriage, it would be subsumed by the crime of sexual slavery and it could not be considered cumulatively with crimes of violence based on gender, as there would be no intention to commit them. Mr. Ongwen's Defense argues that he could not deny women offered to him as wives because Mr. Kony's idea was to increase the army with the reproduction of new members, in addition to recruitment. The Defense alleges that the age of 18 years old, which serves as a marker for adulthood and criminal responsibility before the ICC, has little relevance for a former child soldier. The defendant did not have a normal childhood for he was raised without education. His performance as a soldier would be indescribable since his life was much more experiential and not intellectual. Concerning the Prosecution’s arguments, it is understood that the LRA was a structured, organized and hierarchical group with discipline, ranks and promotions. Mr. Ongwen would be in a position of authority and he would have control over the troops. Additionally he would be aware of the circumstances, acting as a senior commander, and becoming the biggest one in 2005, an essential participant in the LRA's actions. Mr. Ongwen's compulsory wives, as well as former commanders, former combatants and abductees of the LRA witnessed Mr. Ongwen’s participation in the armed conflict as a leader. As prosecutor Fatou Bensouda pointed out at the opening statement at Court, the LRA was a structured and hierarchical organization. Joseph Kony, the general commander, was at the top of the organization called "Control Altar". Below this were four brigades: Sinia, Gilva, Trinkle and Stockree. Bensouda highlighted that “orders flowed down the chain of command. Reports on operations were transmitted back up the chain of command”. Mr. Ongwen commanded the Sinia brigade by March 2004. There are reports of former combatants who accuse Mr. Ongwen of murdering and beating people for futile reasons, as well as coldly raping his compulsory wives. According to witnesses, Mr. Ongwen’s subordinate combatants followed his orders to immediately kill people who tried to escape, without prior consultation or direct order, but with a later report. In addition, the Prosecution accuses Mr. Ongwen of having control over the distribution of women and girls to the LRA fighters. The Prosecution admits that Mr. Ongwen was the victim of the same crime he became a perpetrator: the crime of using and recruiting children under the age of fifteen years to participate actively in hostilities, under the article 8(2)(e)(vii) of the Rome Statute. However, the Prosecution points out that Mr. Ongwen would be fourteen years old at the time of the abduction, not over nine years old as presented by the Defense. It is said that the fact that Mr. Ongwen was a victim in the past would be neither a justification nor an excuse for committing crimes. The moral responsibility is necessary. The criminal process in the ICC does not focus on the goodness nor on badness of people, but on the criminal acts practiced by them. The Prosecution obtained by interception recordings from the LRA's radio conversations by Ugandan military and security organizations. Such evidences are very significant and the records would confirm the Prosecution's allegations, especially concerning Mr. Ongwen’s confessions of crimes. For these and other evidences, the Prosecution understood that he had the knowledge and the intention to commit the alleged crimes , a fact that would satisfy the mental element of the crime, under the article 30(1) of the Rome Statute. Furthermore, the material element (the action itself) established by the same article above would be satisfied because the Prosecution provides evidences of Mr. Ongwen’s essential contributions to the crimes and the coordinated manner he acted with other perpetrators. Finally, the Prosecution concludes that the defendant is criminally responsible and liable for punishment for the alleged crimes. According to the Prosecution, Mr. Ongwen would have failed to act in a necessary and reasonable way within his powers in order to prevent crimes committed by his subordinates, or he would have failed to submit the matter to the competent authorities for investigation and prosecution. For many times he was allegedly away for days or weeks from any LRA authority and he could have escaped or released people under his command. In addition, between July 2002 and December 2005, the Amnesty Commission records show that around 9,000 LRA members surrendered and received amnesty, but Mr. Ongwen would not have choosen to do so. He would have continued his criminal activities with the rebels, as emphasized by the Prosecutor, executing operations, which caused misery and death to many civilians, and afterwards, reporting them on the radio with enthusiasm and no regret. With regard to individual criminal responsibility, Mr. Ongwen is charged pursuant to the articles 25(3)(a) (direct perpetration, indirect perpetration and indirect co-perpetration), 25(3) (b) (ordering), 25(3) (d) (i) and (ii) and 28(a) (command responsibility) of the Rome Statute, for crimes against humanity and war crimes , which have already been mentioned in this writing sample. Presented both parties’ allegations, it is necessary to analyze the criminal responsibility of former child soldiers before the ICC. This analysis must be critical, on a case-by-case basis in order to achieve justice. In armed conflicts, many children are coerced for years in paramilitary groups, even after becoming adult combatants. Each one has a particular experience, which varies according to age, personality, education, maturity, the place of war, beliefs, religion, level of poverty and violence, their length of service in the group, etc. Each person’s unique experience as a child soldier must be taken into consideration by the Court. In a hypothetical situation in the ICC, for example, a former child soldier is accused of crimes committed at the age of 19. Moreover, this defendant was hypothetically abducted by an extreme violent group of rebels when he was only 6 years old and his parents were killed by this group. During his 13 years of service, he was abused, exposed to violence, coercion, training and indoctrination. The attempt to escape from this group would result in immediate death and disobedience would result in serious bodily injury. Still, hypothetically, evidences demonstrate that accused acted as a mere soldier, obeyed commands and executing them necessarily, proportionally and reasonably. Hence, the defendant’s criminal responsibility would be more likely to be excluded since this hypothetical case describes a more favorable situation to the accused if compared to Mr. Ongwen’s. As to Dominic Ongwen case, analyzing both parties’ arguments and the non-confidential evidences presented in Court, it is reasonable to say that the Prosecution’s arguments and evidences are stronger and solider rather than the Defense’s. The circumstances are not favorable to Dominic Ongwen for many reasons. The defendant grew up in the LRA and was not an ordinary soldier throughout his journey. He achieved a position of leadership, and he was able to act along with other perpetrators in a coordinated manner in a common plan. He had power to control the group, and to give orders. Mr. Ongwen was engaged to be successful while committing atrocities. The interception recordings from the LRA's radio conversations demonstrate his enthusiasm and his commands to subordinate combatants to proceed with crimes. These evidences show the mental element of the crime: the intention to commit them with knowledge of the circumstances and the consequences. As the prosecutor Fatou Bensouda points out, Dominic Ongwen will be judged for what he did as an adult, not for what he did as a child soldier. However, his bad experiences in the past, as she says: “may perhaps amount to some mitigation of sentence in the event that he is convicted of these crimes”. This would be a reasonable conclusion about the case to bring reparation and justice to the victims, as well as to satisfy their expectations.