International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Summer 2017 Issue

Hague Happenings


Prosecuting Former Child Soldiers: the Case of Dominic Ongwen at the ICC

Iva Vukusic
By: Iva Vukusic, International Judicial Monitor Correspondent in The Hague

The International Criminal Court (ICC) has been hearing one of its most interesting cases yet, against a former child soldier from northern Uganda, accused of perpetrating crimes similar to those he had suffered himself. Dominic Ongwen, now around forty years old, is a former commander in the Lord’s Resistance Army (LRA), has been charged with seventy counts of war crimes and crimes against humanity.

The crimes Ongwen allegedly committed, as stated in the indictment, span the time period July 1st 2002, and December 31, 2005, during which the LRA, an armed group, carried out an insurgency, clashing with the Ugandan Army. During that campaign, Ongwen and his troops allegedly brutalized civilians and carried out murders, abductions, sexual enslavement and forced marriage, mutilations, and mass destruction and looting of civilian property. Many of the violations appear to have been directed against children, who after their abduction were turned into fighters, porters and sex slaves for the group. According to the charges, the attacks took place in the camps of Pajule, Odek, Abok and Lukodi, where internally displaced people sought refuge.

Ongwen was in custody of a group of rebels in the Central African Republic, in January 2015. The rebels then delivered him to the U.S. special forces who were there to work with the African Union on combatting the LRA. Some weeks later, Ongwen made his initial appearance at the ICC in The Hague, as the first LRA commander to appear before the Court. The trial began in December 2016, when Ongwen pleaded not guilty, and the proceedings are ongoing. Many of the testimonies presented by the prosecution so far are former LRA members who served under Ongwen. Protective measures are being applied by the court to protect the most vulnerable witnesses.

Four more LRA commanders were indicted for war crimes and crimes against humanity by the ICC, but two have since died. The most important remaining fugitive in Northern Uganda is Joseph Kony, the highest-ranking LRA commander, allegedly responsible for two decades of brutal crimes in the region, and in particular the abduction and brutalization of tens of thousands of children. Estimates put the number of abducted children between thirty and sixty thousand, starting around 1988, up to 2004. The LRA is blamed for the deaths of around 100,000 people. Kony was charged back in 2005, but has successfully escaped capture ever since. His rebels change locations, and have brutalized populations from Democratic Republic of the Congo (DRC), to the Central African Republic (CAR), and South Sudan. Current reports suggest that the armed group is significantly weaker after concerted efforts to defeat it, but is so far resisting surrender.

Dominic Ongwen was abducted by the LRA at a young age, it is not completely clear when, but somewhere between the ages of ten and fourteen. He was then socialized into the brutal armed group led by Kony, a man subordinates consider as endowed by special spiritual powers. Ongwen was brutalized and indoctrinated, fighting for the group, and slowly climbing the chain of command and joining the leadership of the organization.

What this case brings forward as no other case before it on the international stage, is the question of agency and trauma among former child soldiers. It raises serious questions about responsibility of persons who were themselves victimized at an early age. Ongwen is not a person who had a regular upbringing, in a home


with parents, education, and the opportunity to grow up learning about right and wrong in a way that would make clear to him what is, and what is not allowed. Abduction, sexual slavery, fighting and death of children in armed groups is, presumably, not something he was taught was morally abhorrent and illegal.

For some observers of the trial, the issue that he is himself a victim means that he should not be prosecuted for his alleged crimes, but rehabilitated. Some activists and community leaders in Uganda seem to be proponents of this idea. Others, and among them is ICC Prosecutor Fatou Bensouda, presents the position that he had broken the law, harmed numerous people and that he should be held accountable. According to this perspective, it is then for the judges to determine if Ongwen’s particular circumstances mean that his responsibility is somewhat diminished or that he deserves it to be taken into account as a mitigating factor during sentencing.

The defense has been arguing that the accused was a victim of indoctrination and duress, something the prosecution is strongly disputing. For the prosecutor, each human being has a choice, and Ongwen had a choice too. That is why Ongwen has been charged only with crimes he allegedly committed as an adult not those prior to being 18 years of age. In sum, this case has raised questions that go to the very core of criminal trials, and presents a situation like no other before in The Hague.

Debates in the civil society exposed these divides, and the gap between those who would favor a conciliatory approach and amnesty as opposed to prosecution. The situation in Uganda is complex, and scars of years of LRA crimes run deep. In that context, amnesties were precisely the tools used to demobilize individuals and work towards them rejoining society and giving up fighting. According to official figures, as many as 13 000 LRA members have been granted amnesty since the year 2000. Thousands of ex-child soldiers live in the country, and questions are raised if the ICC, a distant criminal court, is indeed the best place to address alleged crimes committed by men like Ongwen. There is more agreement surrounding Kony, who many claim should be the primary target of judicial proceedings.

Other observes criticize the uneven approach of the Prosecutor’s office of the ICC for focusing on the rebels but ignoring the government and abuses committed by the regular army.

Advocates of prosecution on the other hand argue that, as much as Ongwen’s personal history is relevant for the case, he allegedly committed a series of violent crimes and his victims deserve a measure of justice. 4,107 victims have been granted the right to participate in the ICC proceedings against Dominic Ongwen. The victims are represented by two different groups of lawyers – the first group consists of 2,601 victims, and the second, of 1,502. Their lawyers have been key in representing those that suffered in the communities attacked by the LRA, particularly focusing on Ongwen’s alleged inhumanity and apparent joy in inflicting harm.  

Apart from the challenges of the case itself, the Ongwen trial comes at a time of particularly strained relationships between the ICC and a number of African states. As it has been widely discussed elsewhere, the ICC has been accused of being a neo-imperialist institution, a neo-colonialist instrument focusing on Africa, and black Africans, while failing to address violations of international law by powerful, developed states. That is the context in which the Ongwen trial is being conducted. Significant pressure is on the Court to succeed in rendering some justice in this complicated case, aiming to build a better relationship with constituent communities.

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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