When one thinks of the sad reality which exists in many conflicts across the globe, of children being abducted and conscripted into service in militias as child soldiers, it invokes feelings of indignation that a child’s future can be destroyed, being forced into the boots of a soldier. This is a logical sentiment, as few will argue that regardless of the foundation of the conflict, war is never the place for a child. Yet one element of this reality which receives less exploration, is the attitudes towards the legality and morality of the actions the particular child soldier commits, as they age and rise in the ranks of the military group. The judgement of the International Criminal Court in the Ongwen case, which after years of proceedings is due to be produced by the Trial Chamber on February 4th, provides an opportunity to explore these questions.
Dominic Ongwen stands accused of the most heinous human rights violations a person could commit: murder, torture, rape, sexual slavery and many more. In international criminal law, these crimes come under the remit of crimes against humanity and war crimes. Since the creation of the ICC with the Rome Statute (2002), it has received criticism for the extremely low number of convictions it has achieved, therefore any trial which looks like going the distance is intriguing. Yet, this trial in particular has a number of fascinating elements to it. It is the first ICC trial against a former child soldier, which as alluded to, raises questions regarding the legality and morality of the proceedings. Also, it is a rare example in the ICC where an accused has argued “defences”, under grounds for excluding criminal responsibility (Article 31 Rome Statute). The defences raised in this case centre around, or are loosely linked to, the fact that he is a former child soldier. They will be explored here while also addressing some of the deeper questions they raise.
Mr Ongwen, now estimated between 45-46, was abducted as a child around the age of 14, in northern Uganda in 1988. He was conscripted into the service of the LRA military group, before rising in the organisation to the position of commander of the Sinia Brigade. Without going into the particulars regarding modes of liability, he is charged with principal and accessorial responsibility, as a direct and indirect perpetrator (Article 25 Rome Statute); and under the mode of liability unique to international law, command responsibility (Article 28 Rome Statute). The crimes for which he is charged occurred between July 2002, when the Ugandan government granted jurisdiction and 2005, the issuing of arrest warrants. Thus, Article 26 of the Statute excluding jurisdiction for persons under 18, is irrelevant. Therefore, the legal elements relevant to Ongwen being a former child soldier are related to the two defences being asserted, mental incapacity (Art 31 (a)) and duress (Art 31(d)); both shall be explored.
Rather than examining how both defences were raised, it shall be more illuminating to examine how lead prosecutor Benjamin Gumpert in his closing statement, compellingly, eloquently and rather humorously pulled apart Ongwen’s defences. He began dissecting the defence of mental incapacity, which from the wording of the statute, requires the defendant’s capacity to understand the unlawfulness of their conduct or to control their actions, to have been destroyed by mental illness. Gumpert emphasised the totality and permanence associated with the word destroy. The defence attempted to establish a narrative, supported by their own medical experts, that Ongwen’s abduction and enlistment as a child had placed him in a kind of mental limbo, suspended in time with the child-like faculties he possessed when abducted, thus rendering him incapable of appreciating the unlawfulness of his actions. The prosecution refutes this narrative wholeheartedly, providing evidence from medical experts, witnesses who knew the accused well and even testimony of Ongwen himself, that during the accused crimes he demonstrated a “functioning conscience” and possessed the full capacity to appreciate his conduct.
The other defence asserted by Ongwen, that due to LRA coercion he was compelled and under duress to commit the accused crimes, was equally as efficiently plucked apart by the prosecution. Once again, they focused on the wording of the statute, this time “the threat of imminent death”, to emphasise the singularity of moment in which this defence is designed to apply. This contradicted the interpretation of Ongwen’s argument, which asserted a perpetuity of duress that Ongwen remained in, covering the entirety of crimes. The second fundamental element of duress hammered home by Mr Gumpert was how the individual relying on this defence must be incapable of escaping the situation. Evidence provided to the court demonstrated numerous individuals, some of similar rank to Ongwen, managed to escape the LRA’s clutches. Therefore, it appeared obvious based on the evidence that individually both defences had a shaky foundation to say the least. However, in one last right hook against the accused’s defences, Gumpert explained that the two arguments put forward by Ongwen, by their nature, are incapable of co-existing. The wording of duress in the Statute requires the individual to act reasonably and necessarily to avoid causing more harm than that sought to be avoided. Yet as the prosecution logically points out, Ongwen’s other argument of mental incapacity, requires the individual’s capacities to have been destroyed, a wording that necessarily precludes one’s ability to act reasonably. Thus, individually and collectively the defences lack substantial merit, perhaps demonstrating the danger of undermining defences by advancing too many.
The previous analysis explored certain legal considerations: the fact that prosecution is legally possible and the ultimate implausibility of the defences, although these will be adjudicated in accordance with the law.
But what about its morality? This case is another prime example of where law and morals intersect, forcing us to contemplate the true meaning of law. With a child soldier such as Ongwen, stolen so early in his development and forced into the harshest of environments, aimed to condition him as a submissive soldier, how accountable is he for his actions? How many children exposed to those conditions find themselves uncorrupted? furthermore, is it not only possible but probable, that if left to develop he would have grown into a good person? In the most general sense he is a product of his environment and upbringing, thus objectively speaking, his actions are to a degree the responsibility of others. However, arguably we risk travelling too far into an abstract realm in making such assertions, and the law is ultimately incapable of answering these questions. The purpose of law, especially ICL, is to serve the victims of the crimes of which Ongwen is accused and bring the perpetrators to justice. Regardless of the circumstances that shaped him, he nonetheless committed these atrocities and, if the prosecution is correct, did so in full comprehension of his actions. It is because of this that if found guilty, he deserves the justice brought upon him. Ultimately for Ongwen, it is unlikely that the court will accept the defences put forward, mostly because of the weak evidence supporting them, but partly due to the dangerous precedent that would be set, given the unfortunate regularity in which the ‘Ongwens’ of the world are produced.
