Diksha Singh*

Introduction

International arbitration has recently been challenged to its very core as the Moscow Arbitrazh Court, a state commercial court within Russia’s federal judicial system, handed down a precedent-setting decision of significant practical and doctrinal consequences barring the continuation of arbitration proceedings before the Permanent Court of Arbitration (PCA) against Russian parties. The ruling, which came in October 2025, levies hefty monetary sanctions on arbitrators and lawyers who ignore its order, effectively excluding Russia from PCA arbitration proceedings. The decision is a dramatic departure from the international arbitration norm of party autonomy and the kompetenz-kompetenz doctrine, which bestows arbitral tribunals with the capacity to decide on their jurisdiction. This sort of state intervention risks fragmenting the framework of enforcement upon which the global arbitration system relies, undermining its predictability and credibility.

This article suggests the possible effects of this intervention by the Russian court in the larger context of international arbitration law, particularly on enforcement risks, party autonomy erosion, and increasing politicization of dispute resolution. Through an examination of the legal basis of Russia’s position and a comparative analysis with trends in other jurisdictions, this article seeks to shed light on the potential systemic influence on international arbitration’s future as an impartial and efficient dispute resolution mechanism across borders. Accordingly, this dynamic highlights the necessity for protecting the principles underpinning the architecture of international arbitration amidst heightening geopolitical tensions and legal challenges.

Background and Legal Context

In October 2025, the Moscow Arbitrazh Court, a court of first instance in Russia’s arbitrazh (commercial) court system, issued a landmark decision involving Wintershall Dea GmbH, a German oil and gas company, prohibiting the continuation of arbitration proceedings against Russian parties before the Permanent Court of Arbitration (PCA) seated in The Hague. The court relied on Articles 248.1 and 248.2 of the Russian Arbitration Procedure Code (APK), which confer exclusive jurisdiction on Russian courts over certain disputes involving Russian Parties where access to foreign forums is allegedly impaired by external measures. This decision is part of an increasing tendency in Russian domestic jurisprudence to question the enforcement of foreign arbitral awards and restrict the application of international arbitration agreements within its jurisdiction.

The legal basis of the decision turns on the contention that foreign arbitral tribunals, like those established under PCA auspices, lose jurisdiction once the domestic court enters the picture, placing reliance on the doctrine of exclusive jurisdiction for local adjudication. In conjunction with Russia’s geopolitical context, amid international sanctions and heightened tensions, this move embodies a nationalistic approach aimed at shielding state and commercial actors from external legal influence.

Historically, the kompetenz-kompetenz principle in international arbitration grants arbitral tribunals the authority to determine their own jurisdiction, with national court review ordinarily deferred to the annulment or enforcement stage. Russia’s judiciary violates this principle by claiming that Russia’s domestic courts maintain final authority, in effect excluding international tribunals. The ruling places Russia in tension with its obligations under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards by preemptively restraining arbitral proceedings and displacing the Convention’s limited, post-award grounds for judicial intervention with an expansive doctrine of domestic exclusive jurisdiction.

This shift in the allocation of jurisdictional authority from a tribunal-first model grounded in party consent to immediate domestic judicial control calls for close analysis since it diverges from the established norms of international arbitration and carries crucial ramifications for the reliability, legitimacy, and utility of arbitration as a neutral forum for dispute resolution in Russia and elsewhere.

Analysis: Impacts and Risks

The Moscow Arbitrazh Court’s ruling imposes a strict prohibition on continuing arbitration proceedings under the PCA in The Hague. The Court not only barred Wintershall Dea, its legal representatives, and successors from pursuing the arbitration, but it also prohibited arbitrators Charles Poncet and Olufunke Adekoya from conducting evidentiary activities or issuing awards. A severe penalty of EUR 7.5 billion was threatened against any party failing to comply, signaling the gravity with which the Russian judiciary is enforcing this decision.

This judicial ruling operationalized Articles 248.1 and 248.2 of Russia’s Arbitrazh Procedure Code (APK) to assert exclusive domestic jurisdiction on the ground that foreign sanctions by the PCA allegedly impair access to justice for Russian parties. On this basis, the Court characterized the continuation of PCA arbitration proceedings as an impermissible foreign intervention in Russia’s domestic legal affairs, effectively neutralizing the practical effect of the underlying arbitration agreement.

This antagonistic domestic judicial stance erodes the underpinnings of international arbitration, including the kompetenz-kompetenz principle and deference to arbitral independence, by subjecting international tribunals to national jurisdictions. The ruling raises serious questions about enforceability of arbitral awards involving Russian parties, undermines confidence in arbitration as an impartial dispute resolution forum, and further contributes to growing fragmentation of the international arbitration regime.

In summation, Russia’s decision is no solitary judicial move. Rather, it is a calculated and systemic assertion of domestic judicial authority that, while centered on Russia, reflects a broader pattern of state resistance to international arbitration and carries far-reaching consequences for the legitimacy, predictability, and robustness of global dispute settlement systems.

Comparative and Global Perspective

The implications of the Russian court’s decision go beyond Russia’s borders, heightening legal uncertainty for foreign investors, complicating sanctions-compliance strategies, and signaling an unprecedented willingness to subject arbitrators and counsel to coercive domestic sanctions. These developments situate the Russian decision within a broader global tension between state sovereignty and the transnational foundations of international arbitration, a dynamic increasingly discussed in scholarship on fragmentation and uncertainty in investor-State dispute settlement systems, where inconsistent national interventions exacerbate risks for cross-border investors

This aggressive posture by Russia is a significant divergence from customary international arbitration practice, of which respect for party autonomy and arbitral independence are cornerstones. While the majority of jurisdictions embrace the principles enshrined in the 1958 New York Convention, making recognition and enforcement of foreign arbitral awards smooth and easy, Russia’s recent decisions reflect a growing prioritization of national sovereignty and protective domestic legal intervention over established international arbitration norms.

Other countries have sometimes shown suspicion of foreign arbitration or passed laws to restrict particular arbitral practices within their jurisdiction, most commonly through restrictive applications of the public policy exception at the enforcement stage, heightened scrutiny of arbitrability in sensitive sectors, or increased judicial intervention by courts at the arbitral seat. Russia’s approach, however, departs from these practices by imposing across-the-board prohibitions or outrageous fines on arbitral proceedings and threatening extraordinary financial penalties against arbitrators and legal counsel. Russian courts have adopted a systematic and punitive strategy that represents a regression from established international arbitration standards and Russia’s treaty commitments under the New York Convention. This trajectory is likely to intensify jurisdictional clashes, undermine international investor confidence, and further fragment the international arbitration regime amid geopolitical tensions and broader assertions of domestic judicial sovereignty.

Global arbitration hubs, including the PCA and the International Center for Settlement of Investment Disputes (ICSID), find themselves increasingly under pressure to maintain legitimacy and practical usefulness in light of such jurisdictional conflicts. The struggle over enforcement and tribunal sovereignty might set off calls for reform in arbitration codes, strategic coordination with national courts, or the establishment of alternative frameworks of dispute settlement robust enough to weather increasing geopolitical tensions.

Moreover, foreign investors and multinational companies must work in a fragmented and uncertain legal environment balancing compliance with international arbitration regimes against evolving national legal prohibitions. Heightened politicization of arbitration increases the need for transparency, bolstered protective measures for arbitral players, and diplomatic avenues to maintain the system’s neutrality.

Conclusion

The Moscow Arbitrazh Court’s ruling to bar the continuation of PCA arbitration proceedings and impose huge fines on arbitrators and lawyers is a turning point in international arbitration. It precisely depicts the mounting tension between state sovereignty and the transnational arbitration system that has long supported cross-border commercial and investment dispute resolution.

This development warrants serious attention from international arbitration institutions, states, and other interest holders. If the legitimacy, impartiality, and vigor of arbitration mechanisms are to be preserved, coordinated responses will be necessary in the face of geopolitical complexities and assertion of domestic legal dominance.

Possible solutions include enhancing multilateral cooperation mechanisms, revising arbitration rules to respond to the new jurisdictional challenges, and stepped-up diplomacy to safeguard the integrity of international arbitration. Shielding the efficacy of arbitration will require balancing respect for sovereignty with unwavering resolve for unbiased, stable, and predictable international dispute resolution.

*Diksha Singh is currently a third-year student at National Law Institute University, Bhopal.

Jack Wright Nelson* and David S. Schuman**

I. Introduction

“There’s a certain part of the Moon that everyone knows is the best. We have ice there—we have sunlight there. We want to get there first and claim that for America.” With these words, spoken at a U.S. Department of Transportation press conference on 5 August 2025, Acting NASA Administrator, Sean Duffy, attracted the attention of space lawyers worldwide. The concern? That any and all lunar “claims” appear to run counter to Article II of the Outer Space Treaty (OST). Article II states that “[o]uter space, including the [M]oon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” On its face, Article II presents a straightforward preclusion of lunar claims. But reading Acting Administrator Duffy’s comments alongside the rest of the OST exposes a fundamental tension within the Treaty itself—one that may transform the Moon into the “province of whoever gets there first,” despite treaty language proclaiming it the “province of all [hu]mankind.”

II. De Jure Prohibition and De Facto Permission

The distinction between what the OST formally prohibits and what it practically enables is the cause of this tension. While Article II sets out a de jure prohibition, provisions in the OST are de facto permissive of exclusive uses of parts of the lunar surface. First, Article VIII grants states “jurisdiction and control” over space objects and personnel “while in outer space or on a celestial body.” Second, Article XII acknowledges that states may establish “stations” and “installations” on the Moon. Third, Article XII permits the installing state to control access to these stations and installations through advance notice requirements. Finally—and perhaps most significantly—Article IX requires states to conduct lunar activities “with due regard to the corresponding interests of all other States Parties to the Treaty” and mandates international consultations before proceeding with activities that may cause “potentially harmful interference” with others’ operations.

In sum, the OST prohibits national appropriation of any part of the Moon but acknowledges infrastructure that necessarily occupies lunar surface area, and insulates that infrastructure from interference. The only way to reconcile the Treaty’s various provisions is to acknowledge that occupation of parts of the lunar surface does not—in and of itself—constitute appropriation under Article II. The United Nations has even adopted principles relevant to the use of nuclear reactors in space. The practical result? Once lunar infrastructure is in place, that infrastructure can occupy the relevant portion of the lunar surface.  

III. Opening the Overton Window

It remains an open question how long such occupation could persist, without amounting to national appropriation. There is very limited practice on this point, other than to note that the hardware from the Apollo missions—including landers—has occupied parts of the lunar surface for more than fifty years. Let’s consider the immediate context for Acting Administrator Duffy’s announcement: plans to deploy a nuclear reactor on the Moon by 2030, targeting what he described as the “best” part of the moon, the resource-rich south polar region where water ice may lie in permanently shadowed craters. A 100-kilowatt nuclear reactor represents a significant infrastructure investment that would likely anchor a much larger facility complex. As Michelle Hanlon, Professor of Air and Space Law at the University of Mississippi, recently observed, nuclear reactors and other infrastructure create lasting influence, with the first-arriving state effectively drawing “a line on the lunar map.”

These plans do not suggest that the reactor—and the associated facilities, if they come to pass—are intended to be temporary. It may be that the long-term nature of the project motivated Acting Administrator Duffy’s choice of the word “claim.” However, it is unclear whether such territorial language reflects a lack of appreciation for the existing treaty framework, or signals a deliberate shift in U.S. space policy. Importantly, the NASA directive on the reactor itself could have captured a change in policy explicitly, but did not. The recent Executive Order, titled “Enabling Competition in the Commercial Space Industry,” while recognizing the OST in Section Five, is silent on this point.

Analysis of oral remarks, as opposed to formal policy documents, could be criticized as premature. Yet Acting Administrator Duffy’s comments show how easily casual language can impact carefully constructed legal principles. It is not uncommon for official language to presage shifts in policy. Whether the Trump Administration captures such language as formal policy in this case or adjusts it to align more closely with existing treaty language remains to be seen. On November 4, 2025, President Trump re-nominated Jared Isaacman to be NASA Administrator; he was then confirmed by the United States Senate on December 17. It remains to be seen whether NASA will follow Acting Administrator Duffy’s comments with formal policy, or pursue a more traditional view of property rights on the Moon. In any event, Acting Administrator Duffy’s choice of language remains significant, because it opens the Overton Window to explicit territorial thinking in international space law. The Overton Window is the range of ideas considered acceptable for public discussion at any given time. If senior officials of a leading space power begin speaking openly about claiming lunar territory, other nations may feel compelled to abandon multilateral frameworks in favor of more aggressive and fundamentally territorial strategies. The result could be the (further) fragmentation of international space law and the dismantling of Article II.

IV. Conclusion

One could argue that a “first-come, first-served” approach represents the best way to fully and efficiently develop the Moon. It certainly has been the applicable framework for much of human history on Earth, with all its injustices and detrimental effects. And there are good reasons to be cynical that human activity in outer space will be any different from previous human behavior: nations will pursue strategic advantages, establish presence where possible, and use the language of international law to legitimize their positions.  

Such observations aside, international law has tended to have a moderating effect on human behavior. We think that is a good thing. Perhaps today’s challenge is best characterized as preserving the OST’s aspirational vision of space as humanity’s shared heritage while developing practical frameworks that acknowledge the realities of lunar development. This may require walking a careful path: creating clear rules for conduct around infrastructure without abandoning the principle that no nation can appropriate any part of the Moon. The alternative—allowing increased territorial rhetoric until Article II becomes meaningless—risks transforming the Moon from the “province of all [hu]mankind” into a patchwork of de facto national territories, secured not by law but by whoever gets there first.

*Jack is an Assistant Professor of Law at Thompson Rivers University. His teaching and research focus on air and space law, and more broadly on the intersections between law, science, and technology.

**David is retired from NASA’s Office of General Counsel at the Goddard Space Flight Center where he was lead counsel for the James Webb Space Telescope from the project’s inception through launch and operation. He recently represented the International Astronomical Union and National Space Society, respectively, at the Legal Subcommittee and General Meeting of the United Nations Committee on the Peaceful Uses of Outer Space. Views expressed here are personal and do not represent those of NASA, the U.S. Government, or other organizations.

Mohammed Abu Saleh*

For over eight decades, the rules-based trading system has underpinned prosperity, predictability, and global cooperation. Today, the system faces its gravest crisis, as it is being hacked by the very country that built it. Under the banner of “America First”, the United States has imposed sweeping tariffs, disregarded WTO rulings, and extracted concessions through bilateral “napkin deals.” What Richard Baldwin calls a “Great Trade Hack” is, in practice, a frontal attack on multilateralism. All three pillars of the WTO – rule-making, monitoring, and dispute settlement – are in paralysis. The question is no longer whether the WTO can preserve the rules-based order, but whether it can survive at all.

But there is also an opportunity. This crisis presents an opportunity to rebuild a fairer and more inclusive global trading system – one that prioritizes development as a fundamental pillar of the trade integration process. As Winston Churchill said, “Never let a good crisis go to waste.”

Unpacking the Crisis

The new wave of US reciprocal tariffs, ranging from 10% to 50% on imports, fundamentally undermines the multilateral system. These tariffs violate the core WTO principles, such as the Most-Favoured-Nation (MFN) obligation under Article I of the General Agreement on Tariffs and Trade (GATT) and the tariff bindings (GATT Article II). The US committed to thousands of tariff ceilings when it joined the WTO.

WTO panels have already decided that the unilateral tariff increases by the US on imports of steel and aluminum products in 2018, based on national security grounds, violate WTO rules. Yet, with the Appellate Body paralysed, the previous US administration has refused to comply, leaving the system without an effective enforcement mechanism.

Equally troubling are the bilateral arrangements Washington has struck with several countries, such as Indonesia, Japan, Cambodia, the United Kingdom, and the European Union. These deals show how tariff threats work well as a stick for one-sided concessions. Indonesia’s tariff was cut from 32% to 19% only after it removed most barriers to US exports. Japan accepted improved US market access and pledged major investments in exchange for a reduction of tariffs from 25% to 15%. The EU agreed to eliminate nearly all tariffs on US goods and undertake large purchases of American natural gas to avoid even higher duties than the current 15%.

Such concessions, unless extended to all WTO members, directly risk violating the MFN principle. They could be justified only as Free Trade Agreements (FTAs) under GATT Article XXIV, which requires reciprocal liberalization of “substantially all trade.” These deals, however, move in the opposite direction. Rather than pursuing reciprocal tariff reductions, the US maintains an average import tariff of around 18%, while its partner countries are required to eliminate or substantially lower tariffs on US exports. Such asymmetric arrangements fall short of the definition of a traditional FTA.

By accepting these deals, partner countries pave the way for a new trade architecture that prioritizes coercion over fairness. The message is clear: access to the US market is a carrot which comes at the expense of unilateral concessions and higher tariffs, hollowing out WTO’s foundational principles and leaving smaller economies – the most reliant on multilateral rules – particularly vulnerable.

Ideas to Save the WTO

Joost Pauwelyn proposes an interesting idea on how the US reciprocal tariffs could, instead of ending the WTO, save it. He argues that GATT Article XXVIII provides a legal mechanism for countries to renegotiate tariff commitments by offering compensation to substantially affected partners. Although the US has not formally invoked it, its reciprocal tariffs could in principle be multilateralised under GATT Article XXVIII. This mechanism could integrate the bilateral deals into the WTO framework, while also allowing affected states to retaliate without waiting to have authorisation from the WTO’s dispute settlement body. A coordinated, broad-based renegotiation under Article XXVIII could transform unilateral US moves into the largest multilateral tariff negotiation round since the WTO’s creation. Such a round may lead the way for a new balance of global trade relations that has changed in the last 30 years. However, it is uncertain how this approach would address the development and inclusion issues, which are very important priorities for the majority of WTO members.

Some experts suggest that the best option for the WTO would be for the United States to leave the organization, given its consistent disregard for commitments and the unlikelihood of its respecting WTO rules. Legally, Article XV:1 of the WTO Founding Agreement allows any member to withdraw voluntarily with six months’ notice. Alternatively, members could invoke Article 60 of the Vienna Convention on the Law of Treaties (VCLT), a principle of customary international law, treating US conduct as a material breach of the treaty, or rely on Article IX of the WTO Founding Agreement, which permits majority decision-making when consensus fails. While exclusion would be unprecedented and risky, it would restore the organization’s credibility and enable the remaining 85% of global trade to continue under rules-based governance. By removing the US, the remaining members could restore the organization’s functionality, appoint new judges, and foster stronger multilateral cooperation.

The US has paralysed the WTO Appellate Body by blocking the appointment of its members, including, most recently, on 26 September 2025, it singlehandedly vetoed for the 90th time a proposal supported by 130 WTO members to restart the selection process. With this dysfunctional Appellate Body, any losing party can simply appeal to it, which is otherwise called appealing to void. Over 30 cases have already been appealed since the paralysis began in December 2019. This has significantly weakened the enforcement mechanism, eroded trust and made global trade rules unpredictable. Because the US alone is responsible for this deadlock, some argue that its removal would solve this crisis. Such an exit would allow the remaining members to restore a fully functioning Appellate Body and revive a credible rules-based trading system. However, Rob Howse warned that forcing or inviting a US exit would create serious legal and systemic risks. It could push the WTO toward power-based trade relations, undermining the very predictability that a restored Appellate Body is meant to protect.

A more pragmatic strategy is collective counter-leverage. An Alliance for Open Trade, comprising like-minded WTO Members such as the EU, Canada, Mexico, Brazil, and South Korea, is seen as a crucial unified front to counter the US administration’s aggressive unilateralism and tariffs. This coalition, which accounts for over 50% of all US goods exports, possesses significant economic leverage to make the costs of American isolationism prohibitively high, thus aiming to prevent a trade war and sustain the rules-based global trading system.

At the same time, a Small Open Economy Caucus (SOEC) could amplify the voice of vulnerable states that depend most on predictable rules. Using GATT Article XXIII:1(c), the SOEC could bring a “situation complaint” to highlight the systemic uncertainty created by US conduct. Coordinated suspension of concessions, rather than fragmented unilateral retaliation, would preserve collective discipline. Enhanced transparency and intra-caucus support measures could shield weaker members from disproportionate harm.

A Crisis and an Opportunity

For the WTO to remain relevant in the 21st century, it must deliver not only by managing unilateralism but also by serving people and the planet. The WTO stands at a “reform or die” moment. This crisis is a perfect time to reform the WTO. While reform priorities are contested – ranging from tariffs and consensus rules to differentiation among developing countries, dispute settlement, and strengthening special and differential treatment (S&DT) – this article argues that the ongoing crisis presents a historic opportunity to make development a core principle of global trade governance.

Since the GATT’s inception, development has often been treated as an afterthought, largely confined to S&DT waivers and carve-outs. This approach has marginalized development as a temporary deviation from the core international trade rules. The current crisis creates a space to change course on development discourse: to move beyond S&DT and embed development at the heart of the WTO’s mandate. Doing so requires rethinking not only dispute settlement, consensus or tariff bindings, but also how trade rules can be modified and designed to ensure that the gains from trade are widely and fairly shared across and within countries.

With reform discussions gaining momentum in recent days, it is time to explore fresh approaches that embed development at the core of global trade governance. Over 80% of the world’s population lives in developing economies. Their development needs should be placed at the very heart of the WTO reform agenda. Development should be recognised as a global public good and a shared responsibility, moving beyond the commoditization of people towards an inclusive trading system. The reform process should begin with a systematic assessment of how existing trade rules affect development outcomes. 

Scholars like Sonia Rolland have long argued that development should stand alongside trade liberalization as a normative co-constituent of the multilateral trading system. Such a reconceptualization could be a game-changer in mainstreaming development in the WTO’s mandate. It is further suggested that a reformed WTO should abandon the outdated “single undertaking” model and embrace flexibility, recognizing that Members at different stages of economic development should not bear identical obligations. A pluralistic approach would allow emerging economies to pursue their own development strategies while they remain committed to the rules-based trading system.

An earlier proposal called for establishing a Council for Trade and Development, replacing the existing Committee on Trade and Development, to embed development more effectively within the WTO’s institutional framework. While creating such a body would entail reforming the structure of the WTO under Article IV of the Marrakesh Agreement, an immediate step could be launching a Work Programme on mainstreaming development as part of the ongoing WTO reform agenda. This Work Programme could be a forum for developing concrete modalities for integrating development into existing and future trade agreements.

Such changes would reflect the lived realities of WTO members, the majority of whom are developing or small economies. For them, trade rules directly determine whether they can industrialize, participate in global supply chains, or transition to low-carbon economies. By making development a core principle, the WTO can restore legitimacy and purpose, ensuring that global trade is not only open but also fair and inclusive.

The Road Ahead

The next major milestone is the WTO’s Fourteenth Ministerial Conference (MC14) in March 2026. Meanwhile, an informal high-level meeting at ministerial or senior official level should be convened in the coming weeks. Its purpose would be to acknowledge the crisis, articulate a unified stance, draft an inclusive and representative outline for WTO reform, and set a three-month timeline for action ahead of MC14.

This interim forum should focus on two areas: developing a WTO-consistent collective response to US tariffs and bilateral deals, and drafting a reform agenda to be presented at MC14. Such a reform agenda cannot be set solely by major economies. For any consensus to be durable, it must incorporate the voices and priorities of the broader WTO membership. Small businesses and women, who are often left behind in global trade, must also be included in the conversation if legitimacy is to be regained.

The question is not simply whether the WTO can survive, but whether its members are willing to make it worth saving. Maintaining the status quo won’t suffice. If members step up, this disruption can become an opportunity to create a more inclusive, development-focused system, one that guards against coercion, emphasizes sustainability, and ensures that trade serves all, not just the most powerful. 

*Saleh is an international trade and development lawyer. He formerly worked with the World Trade Organization (WTO) as a Legal Officer.

*Divyabharthi Baradhan

Explosions boom, innocent children are killed every day, and once-beautiful families are torn apart by bullets in various parts of the world, reducing their homes to rubble. This devastation is not only a distant tragedy—it is a growing crisis. The Internal Displacement Monitoring Centre reports a staggering 51% increase in the number of people internally displaced over the past five years, reaching a record high of 75.9 million across 116 countries by the end of 2023. These tremendous figures accentuate the urgent need to pursue justice not only after conflicts conclude but also before and during them to protect the vulnerable from displacement and suffering.

Humanitarian law primarily addresses the punishment of war criminals after crimes have been committed. However, it is crucial for the law to extend its protections before and during conflicts. This article proposes a framework for a convention, founded on proactive justice, for the protection of Internally Displaced Persons (IDPs). The framework includes sustainable integration into other parts of the country, humanitarian evacuation from completely devastated countries, and provisions governing the evacuation of civilians before a conflict begins.

i. Limitations of Humanitarian Protection

Evacuation is defined as the necessary movement of persons protected under International Humanitarian Law (IHL), both within and from combat zones, toward territory controlled by a party to the conflict. The primary aim of evacuation is to shield innocent people from the effects of ongoing hostilities. For instance, IHL protects the rights of the wounded, sick, and shipwrecked to be relocated to medical establishments. Similarly, it guarantees the right of Prisoners of War (POWs) to be transported to internment camps. Additionally, Rules 15, 22, and 24 of customary IHL enumerate the precautions that parties to a conflict must take during military operations to minimize harm to civilians and civilian objects. 

While IHL outlines these protective measures, it also has significant limitations. Its applicability is often restricted to the parties involved in the conflict, imposing the obligation to protect innocent civilians solely on them. When these parties fail to fulfill this duty, civilians are left vulnerable without intervention from third parties. This raises critical questions about the effectiveness of these protections. Indeed, the growing decline in compliance with IHL prompted the International Committee of the Red Cross (ICRC) to launch the Global Initiative, which aims to tackle contemporary challenges faced in preventing IHL violations. 

However, the Initiative is non-binding, and the effectiveness of IHL in ensuring civilian safety remains uncertain. This leads to a fundamental question that remains unaddressed: Where is a safe place within a country when residential areas and other civilian objects are bombed and attacked indiscriminately, resulting in “domicide”? A similar dilemma arose during the Bosnia-Herzegovina conflict (1992–93), where the United Nations High Commissioner for Refugees (UNHCR) had to balance civilians’ right against ethnic cleansing with their right to life. This dilemma was succinctly expressed by a  UNHCR Senior Liaison Officer, as follows:

“Political insistence on the right to stay should not in practice prevent people in danger from seeking safety. In many areas, remaining     minorities wanted only one thing—to leave, and to be helped to leave. This created a serious dilemma for UNHCR and ICRC. While the organizations wanted to avoid becoming part of the conflict objective of ethnic relocations, they also recognized that assisting people to leave was often the only way to save lives. As High Commissioner Sadako Ogata put it, ‘if you take these people, you are an accomplice to ethnic cleansing. If you don’t, you are an accomplice to murder.’”

This dilemma underscores the legal distinction between IDPs and refugees, which carries significant humanitarian consequences, and directly impacts the level of international protection they receive. The Guiding Principles on Internal Displacement, which is not a binding treaty, defines IDPs as:

“persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”

As acknowledged in the Guiding Principles, IDPs face numerous hardships within their home country, such as family separation, lack of access to food, shelter, and medicine, and exposure to violent attacks, rape, and disappearance. In some cases, soldiers have used civilians or non-combatants as human shields. These people are in dire need of humanitarian assistance, yet international law fails to protect them adequately.

In contrast to IDPs, refugees are defined under the 1951 Refugee Convention as a person who,

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Despite its comprehensive definition, the scope of the Convention is limited to those who cross an international border and excludes those displaced within their country, leaving them stranded without assistance.

This morally arbitrary distinction—based on whether a person has crossed a border—lacks justification for offering selective protection to vulnerable people. International protection must transcend beyond mere descriptive semantics and provide real assistance to safeguard lives. The Guiding Principles, reflecting general international human rights law, place the responsibility to protect IDPs on national authorities, ensuring their equal rights. These general human rights include the International Covenants on Civil and Political Rights (ICCPR) and Economic, Social, and Cultural Rights (ICESCR), as well as the prohibitions on genocide, torture, and disappearance, and the Conventions on the rights of children, women, the disabled, and against racial discrimination. However, it is contended that given the non-binding nature of the Guiding Principles and the limitations of the general human rights framework in offering remedies for violations of IDPs’ rights, these principles remain inadequate.

This border-based distinction between IDPs and refugees stems from the concept of state sovereignty, as humanitarian intervention for those trapped within the border interferes with domestic affairs. However, although state sovereignty is an overarching principle in international law, human lives should be given equal priority. State sovereignty should not be the yardstick for the protection of innocent people, especially when governments fail to safeguard their own citizens. Instead, greater importance should be placed on fostering the humanization of contemporary international law. 

ii. Reform Proposal

To overcome these challenges, this Perspective note proposes drafting a specific convention that establishes collective responsibility of member states (erga omnes partes) to follow standard procedures before declaring conflict, such as establishing humanitarian corridors, thereby allowing adequate time for civilians to evacuate. This “proactive justice” ensures IHL and human rights are protected before it escalates into a full-blown conflict. Furthermore, this framework should encompass a more inclusive definition of IDPs, extending to those displaced by natural disasters.

In effect, this codifies Rule 20 of customary IHL, which obliges parties to give effective advance warning of attacks. However, the current state practice indicates that a warning is not necessary when maintaining the element of surprise is crucial for the success of an operation or the security of the attacking or allied forces. To counterbalance this, the proposed treaty must affirm the primacy of raison d’humanite (reason of humanity) over raison d’etat (reason of the state), entrenching a victim-centred approach. This means treaties should prioritize humanity over state interests, reflecting the humanist outlook of international law as envisioned by Judge Cançado Trindade in his dissenting opinion in the case of Croatia v. Serbia (2015). 

Any breach of this obligation would allow other member states to initiate humanitarian evacuation of IDPs at imminent risk to their countries, or to facilitate either their sustainable integration or safe relocation of IDPs within another part of the country not involved in the conflict, whichever is most appropriate to the circumstances, with the full consent of the civilians concerned. This is because the responsibility is owed to a group of states parties to the proposed treaty for the protection of their collective interest, rather than as an individual obligation owed to their own state. This mechanism complements the UNHCR and ICRC’s efforts to evacuate civilians at imminent risk, effectively fostering international support to protect innocent lives. 

Another critical dimension of this proposal is the establishment of an obligation erga omnes. The obligation erga omnes, meaning the obligation is owed to the international community as a whole, is essential for the protection of vulnerable individuals in states that are not parties to the treaty, thereby enhancing its practical application. As previously held by the International Court of Justice (ICJ), in contemporary international law, the obligation erga omnes is derived not only from peremptory norms (jus cogens) but also from basic human rights, which encompass the inherent right to life under Article 6 of the International Covenant on Civil and Political Rights, as it concerns all states. Therefore, the conflict does not necessarily need to involve violations of jus cogens, such as genocide, acts of aggression, or racial discrimination for states to act. 

However, respect for the principle of sovereignty should also be prioritized. To do so, the erga omnes obligation would require signatory states to initiate diplomatic negotiations with non-signatory states to facilitate the relocation of innocent civilians to safer areas. In this way, states’ right to non-intervention in domestic affairs is still preserved under Article 2(1) of the UN Charter. Moreover, the obligation is imposed on the state parties to the proposed treaty, not on non-parties, to proactively protect civilians in states that are not parties to the treaty through diplomatic negotiations when those states fail to do so. 

Nevertheless, a significant limitation of this approach is that diplomatic negotiations will be challenging in non-international armed conflicts. As seen in the case of Afghanistan, countries are generally unwilling to evacuate their own citizens. Therefore, the approach to erga omnes obligations must vary between international and non-international armed conflicts. In cases involving the latter, a better approach is to establish a mission consisting of experts, humanitarian workers, negotiators, and NGOs in the country to evaluate the situation on the ground before either recommending a solution to the relevant authorities or having the mission’s agency take the necessary steps if the situation requires. One example of a necessary step is to distribute aid, such as food, clothing, and temporary accommodation. 

Ultimately, this proposal transforms the doctrine of Responsibility to Protect—which has been failing based on current trends—into a legally binding instrument, broadening its scope and enhancing its practical protection of non-combatant civilians. The proposal entrenches proactive justice to protect innocent lives without relying on the benchmark of “manifest failure” by the states in conflict, emphasizing the need for proactive measures rather than reactive ones, leading to better outcomes.

iii. Conclusion

The aforementioned framework is undeniably a bare-bones one that needs to be clothed with in-depth policies that proactively assist IDPs in protecting their livelihoods. There is no justice in delayed justice, and, as this Perspective proposes, it is high time for the international community to protect IDPs—the most vulnerable people stranded in their own country—through multi-centred cooperation rather than through a monocentric approach, integrating both obligations erga omnes partes and erga omnes. The lives, dignity, education, and familial affection of many innocent people could be saved if all the countries are proactive in lobbying for a specific convention on IDPs. Together, we can create a world where the rights and dignity of IDPs are upheld, and no individual is forced to live in fear.

 

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*Divyabharthi Baradhan is an LLB(Hons) graduate at the University of London External Program.

Cover image credit 

*Zej Moczydłowski

1. Introduction

Regardless of one’s perspective, the case of Dominic Ongwen is one of the saddest in the history of the International Criminal Court (ICC). Even to those seeing him as a perpetrator of terrible war crimes, specifically of a sexual nature, it is undeniable that his abduction at a young age and subjection to the indoctrination of Joseph Kony’s Lord’s Resistance Army (LRA) is cause for sorrow. Meanwhile, those who focus on his dual status as not only a perpetrator—but also a victim himself—cannot deny the heinous, horrific, and sometimes unspeakable sexual and gender-based violence for which he was responsible.

Neither of these disparate views of Ongwen is wrong. Yet, those contemplating them have largely failed to consider their overlap and how the intersection should inform and influence the opposing view. This paper seeks to flesh out this issue, examine Ongwen from both sides and argue that the need to punish sexual and gender-based violence (SGBV)^[1] caused the trial to largely ignore Ongwen’s status as a victim-perpetrator. It concludes by proposing how, in similar prosecutions, these views can be considered contemporaneously by creating a bifurcation of charges. In such cases, comparable defendants could face one prosecution for charges relating to SGBV—where defenses pertaining to their history as child soldiers would not be considered—and another prosecution for charges relating to all other aspects of warfare where defenses relating to their being a victim-perpetrator would be considered heavily.

Part 2 provides a general introduction to the LRA and Ongwen. Part 3 examines the case at large, focusing on two issues: the SGBV for which Ongwen is arguably best known and Article 31(a) problems arising from his having been a child soldier. Part 4.1 looks at the history of how SGBV has been previously addressed in international courts, while Part 4.2 considers the history of child soldiering and how claims of mental defects have previously been approached relative to their culpability in a person’s actions. The case is and, in part, ensuing academic discussions are critiqued in Part 5, primarily touching upon the significance of the novel prosecution of forced pregnancy and the dismissal of Ongwen’s Article 31(a) defense. Lastly, Part 6 proposes that in future such cases, the actions of victim-perpetrators such as Ongwen should be considered through an approach that considers SGBV separately from traditional conflict-related crimes.

2. General History

2.1 The Lord’s Resistance Army (LRA)

Formed in Uganda in 1986 as a political rebellion, over the subsequent decades, the LRA grew into a particularly vicious organization known for its use of enslaved child soldiers, as well as “its massacres, sexual-based violence, mutilations, pillage, and abductions.”^[2] Led by Joseph Kony, the group operated in Uganda and was directly in conflict with the Ugandan People’s Defense Forces (UPDF), utilizing weapons varying from machetes and knives to machine guns and rocket-propelled grenades.^[3]

In its earlier years, the LRA received support from Sudan through weapons, training, and base locations.^[4] While fighting its own conflict in Uganda, it also fought on behalf of Sudan against the Sudanese People’s Liberation Army (SPLA).^[5] However, after the terrorist attacks against the United States on September 11, 2001, the Sudanese government was persuaded to let Ugandan troops enter Sudan and rout the LRA from bases there, leading to several LRA units crossing back into Uganda and the events addressed in Ongwen.^[6]

By 2006, the LRA was responsible for the displacement of over one million Ugandans, over 100,000 murders, and the abduction of tens of thousands of children. Many of these children were put on the front lines and forced to “kill, mutilate, and rape family members, schoolmates, neighbors and teachers.”^[7]

2.2 Dominic Ongwen

While Dominic Ongwen’s exact age is unknown, it is believed that he was born in Northern Uganda around 1978 in Coorom and was abducted by the LRA around 1988, when he was somewhere around the age of ten or eleven.^[8] During his abduction, “he was forced to watch the killing of a young relative by child soldiers; forced to participate in a reprisal attack on a village [ and] [] forced to skin alive a young abductee who had tried to escape.”^[9]

The LRA abducted children because they were easier to indoctrinate and coerce through a system of physical and psychological abuse in which they “were forced to beat and/or kill other abductees… witness severe violence being inflicted on others… and constantly [face] physical violence or death if they broke LRA rules.”^[10]

After his abduction, Ongwen rose through the LRA ranks. By 2002—the timeframe relevant to the charges—he had risen to the rank of Major and was a battalion commander.^[11] By the end of 2004, he was promoted to Colonel and then Brigadier General.^[12] In this command capacity, and sometimes as a direct perpetrator, he engaged in the conduct for which he was charged.

3. The Case

In December 2003, Uganda referred crimes allegedly committed by the LRA to the ICC, and in July 2004, the Prosecutor announced that an investigation was underway. On July 8, 2005, Pre-Trial Chamber II issued arrest warrants under Article 58 against Joseph Kony and members of the LRA leadership; Ongwen was one of five individuals named.^[13]

A decade later, in January 2015, Ongwen voluntarily surrendered to U.S. Special Operations Forces and the UPDF, was transferred to authorities in the Central African Republic (CAR), and then—after confirming to CAR authorities that he intended to surrender to the Court willingly—custody was transferred to the ICC.^[14] Ongwen appeared before Pre-Trial Chamber II on January 25, 2015; his case was severed from Kony et al. on February 6, 2015.^[15] Despite the severance of Ongwen’s case from that of Kony and other LRA leaders, the Defense would go on record that they believed Ongwen became a stand-in for Kony in a case that examined all of the LRA’s atrocities. Ongwen attempted to distance himself from the LRA’s leader, but, in the eyes of his attorneys, the Chamber ignored him and ultimately “…treated [Ongwen] as a scapegoat.”^[16]

The Chamber issued a decision confirming charges against Ongwen on March 23, 2016,^[17] charging him with war crimes and crimes against humanity against Ugandan civilians between July 1, 2002, and December 31, 2005.^[18] “The numbers in the Ongwen case [were] staggering. Mr Ongwen was charged with 70 counts and 7 modes of liability—the most of any single defendant at the ICC.”^[19] The Chamber broke charges into three categories: crimes committed during four attacks against internally displaced persons (IDP) camps, SGBV perpetrated by Ongwen himself against women in his household, and “other sexual and gender-based violence and conscription and use in hostilities of children under the age of fifteen.”^[20]

Relating to the attacks against IDP camps, Ongwen was charged in Counts 1–49 under various modes of liability for crimes against humanity and war crimes such as attacking civilians, murder, torture, cruel treatment, other inhumane acts, and political persecution.^[21] These crimes, however, are not the focus of this essay and will not be expanded upon.

SGBV charges, as previously noted, were split into two categories. Counts 50–60 were related to acts committed by Ongwen himself (forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages against personal dignity).^[22] Counts 61–68 were related to SGBV committed by others under his command (forced marriage, torture, rape, sexual slavery, and enslavement).^{[23] [24]} This case was the first time in ICC history that forced marriage and forced pregnancy were charged as separate crimes.^[25]

However, another novel issue brought up in Ongwen was the fact that he is believed to be the only former child soldier to face ICC charges.^[26] This led to his Defense arguing: “[f]rom being a child, up to when he reached the time of 2002 up to now, given the history, a given his life-long experiences, he was forced into his situation against his will. He is a victim.”^[27] Ongwen’s childhood abduction resulted in this being the first ICC case to argue for excluding criminal responsibility under Article 31(1)(a) and (d).^[28]

Article 31(d) deals with duress, whose discussion is distinct from the theory of mental defect resulting from trauma endured as a child soldier. However, it should be noted that the Defense attempted to introduce a novel approach to mental duress, which overlapped with the mental defect defense. They argued that, rather than being faced with the traditional “gun-to-the-head” presentation of duress, Ongwen faced duress due to Kony’s abuse of spiritualism to control those under his command and “to cement his power over vulnerable child abductees.”^[29] In fact, the Charging Documents against Kony flatly stated that “members of the LRA believed he had spiritual powers and was omniscient, beliefs which Kony perpetuated to exert control over the LRA.”^[30] However, the Chamber rejected these arguments, arguing that at the point of the alleged crimes, Ongwen was so senior a member of the LRA that it would be difficult to suggest that he kept committing war crimes out of fear for Joseph Kony.^[31]

Moving to Article 31(a), a person would not be criminally responsible if, at the time of their conduct, they suffered “from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.”^[32]

Regarding this defense, Ongwen’s team introduced expert testimony. It concluded that Ongwen suffered from mental defect and disease due to “his forced abduction by the LRA around 1987, continued through his years in the LRA…”^[33] They claimed these diseases destroyed “Ongwen’s capacity to appreciate the unlawfulness or nature of his conduct and capacity to control his conduct to conform to the requirements of law.”^[34] The Defense argued that Ongwen’s mental development ceased at the “time he was abducted, and this ensured that throughout the LRA, and even today, he has a ‘child-like’ mind which is incapable of forming the required mens rea for crimes or determining right from wrong.”^[35] Their argument was not that Ongwen should have been tried as a juvenile but that his stunted mental development prevented him from developing the requisite capacity to commit these crimes with intent.

The Chamber, however, was not convinced that an Article 31(a) defense existed. It “identified six issues relating to the methodology used by [the Defense experts] in carrying out their assessments.”^[36] It stated that a “number of issues, in particular as concerns the methodology employed, [affected] the reliability of the evidence provided by [the Defense experts], to the extent that the Chamber [could not] rely on it.”^[37]

Specific issues relating to the Defense experts included their having blurred the line between their roles as forensic experts and treating physicians,^[38] having failed “to apply scientifically validated methods and tools for use as a basis for a forensic report,”^[39] having used “diagnostic labels from an outdated international classification system,”^[40] and “[failing] to take into account other sources of information… readily available to them.”^[41]

On February 4, 2021, the Trial Chamber found Ongwen guilty of 62 of the 70 Counts with which he was charged.^[42] The eight counts of which he was not guilty were all related to the attacks on IDP camps; he was found guilty of every SGBV crime with which he was charged.^[43]

During sentencing, the Chamber said that under normal circumstances, the gravity of the crimes committed by Ongwen would have resulted in life imprisonment.^[44] However, it also noted that it was confronted “with a unique situation of a perpetrator who willfully and lucidly brought tremendous suffering upon his victims, but who himself had previously endured grave suffering at the hands of the group of which he later became a prominent member and leader.”^[45] Consequently, Ongwen was not sentenced to life imprisonment but twenty-five years.^[46]

Judge Raul C. Pangalangan filed a Partially Dissenting Opinion in the sentencing, believing a thirty-year sentence—the maximum permissible under Article 78(3)—was more appropriate.^[47] He argued that not imposing a life sentence already took into account Ongwen’s personal situation.^[48]

The Defense appealed both the conviction and sentencing. While appealing the conviction, in grounds for appeal 27, 29, 31–32, and 37–41, they “alleged errors in the Trial Chamber’s rejection of the Defence Experts’ evidence.”^[49] The Appeals Chamber decided that the Trial Chamber was correct in finding that it could not rely on the Defence Experts’ evidence.^[50] It also rejected all other grounds for appeal of the conviction and confirmed both the conviction^[51] and sentencing decisions.^[52]

In February 2024, the Trial Court issued a Reparations Order, stating the “amount required to provide the reparations awarded in this case to the direct and indirect victims of the crimes… would be approximately €52,429,000 EUR.”^[53]

4. Historical Context

4.1 SGBV

The history of warfare is sadly rife with sexual and gender-based violence. Evidence, both historical and anthropological, “suggests that rape in the context of war is an ancient human practice, and that this practice has stubbornly prevailed across a stunningly diverse concatenation of societies and historical epochs.”^[54]

In modern contexts, SGBV is no less common. Examples include the rape and murder of Chinese women during the 1937 invasion of Nanjing, mass rapes of German women at the end of WWII, and mass rapes of women in “modern-day armed conflicts such as Vietnam, Bangladesh, Uganda, the former Yugoslavia, Rwanda, Sierra Leone, Timor-Leste, Peru, the Democratic Republic of Congo, [Darfur], Libya, Iraq, and Syria.”^[55] In short, “all forms of sexual violence, including forced pregnancies, have been used as tools of oppression and control over women and girls from time immemorial. Historically, however, the rules and practices of international criminal law have often overlooked violations of reproductive rights.”^[56] This truth is visible when one examines the evolution of international criminal courts, which only recently started addressing SGBV as a form of crime distinct from other war crimes and crimes against humanity.

For example, the earliest manifestation of a modern international court, the International Military Tribunal at Nuremberg (IMT), did not expressly prosecute SGBV despite having the ability to “punish the overwhelming number of sexual assault crimes that took place during World War II.”^[57] The IMT just included SGBV “as evidence of the atrocities prosecuted during the trial.”^[58] Meanwhile, in the International Military Tribunal for the Far East (IMTFE), “rape crimes were expressly prosecuted… albeit to a limited extent and in conjunction with other crimes.”^[59]  It is worth noting that “the inclusion of rape in the Tokyo indictments resulted in the first prosecution of the rampant sexual violence of World War II.”^[60]

The approaches to SGBV in the IMT and IMTFE have historically been seen as too tangential. Critics point out that while steps may have been taken in the right direction, they were relatively unproductive because those tribunals largely ignored SGBV.^[61] For example, at the IMT, “French and Soviet prosecutors introduced, ‘evidence of vile and tortuous rape, forced prostitution, forced sterilization, forced abortion, pornography, sexual mutilation, and sexual sadism.’ Despite this evidence, no defendants were explicitly prosecuted or convicted for sexual crimes before the Nuremberg Tribunal.”^[62]

Decades later, subsequent criminal tribunal iterations began to tackle SGBV in the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Dianne Luping, a Trial Lawyer in the Prosecution Division of the Office of the Prosecutor at the ICC, points out that the ICTY statute referred explicitly to rape; in contrast, the ICTR statute referred expressly to rape and enforced prostitution.^[63] She adds that the way both statutes classified rape as a crime against humanity was “ground-breaking.”^[64] Another author argued that in the ICTY and ICTR, “crimes committed exclusively or disproportionately against women and girls… secured reluctant but nonetheless ground-breaking redress.”^[65]

Rape was first charged as a war crime and crime against humanity in the ICTY during Prosecutor v. Gagovic.^[66] There, “the prosecutor focused exclusively on sexual assault and qualified rape as a violation of the ICTY’s grave breaches provision, a violation of the laws and customs of war, as well as a crime against humanity.”^[67] All three defendants were found guilty of war crimes and crimes against humanity of sexual violence.^[68] Likewise, at the ICTR, Prosecutor v. Akayesu,^[69] ruled for the first time “that rape and other forms of sexual violence were used as instruments of genocide… and crimes against humanity.”^[70]

Progress continued with the creation of the ICC. The Rome Statute enumerated multiple sexual crimes and demonstrated “an unprecedented degree of gender sensitivity in international criminal law.”^[71] This explicit criminalization was noteworthy because prosecuting crimes requires that they be defined. Previously, it had been possible to prosecute SGBV under more general provisions, but that ability had rarely been exercised.^[72] Specifying the nature and elements of crimes made it easier for prosecutors to determine when they were applicable and push their inclusion on a list of charges.

Yet, despite these promising steps, in its first twenty years, the only convictions for sexual crimes in the ICC^[73] have arguably been Prosecutor v. Ntaganda^[74] and now Prosecutor v. Ongwen.^[75] One author argues that “although an international court’s success cannot, and should not, be measured simply by its number of convictions, it is evident that the ICC has not fulfilled the objective of ending impunity for gender crimes under international criminal law.”^[76]

In addition to the explicit criminalization in the Rome Statute, progress continues, and other successes have been seen despite a lack of convictions. For example, during Fatou Bensouda’s term, the Office of the Prosecutor published a policy for investigating and prosecuting SGBV and made progress in charging them.^[77] That publication was then expanded upon in December 2023 by Bensouda’s successor, Karim Khan, whose Office published a new “Policy on Gender-Based Crimes.”^[78]

Additionally, juxtaposing the Office of the Prosecutor’s approach to the Lubanga and Ongwen cases demonstrates a changing attitude towards SGBV. In Lubanga,^[79] it was “alleged that female child soldiers in Lubanga’s group were routinely raped and used as domestic servants by their commanders;” it was then “argued that this sexual abuse fell within one of the charges that Lubanga was facing, namely, ‘using children to participate in hostilities.’“^[80] However, the Prosecutor did not separately charge SGBV crimes, and a majority of the Trial Chamber “refused to determine whether the rape of child soldiers by their commanders would satisfy that test.” ^[81] As will be noted in Part 5.1, Ongwen marks a departure from that approach.

4.2 Child Soldiers and Related Mental Defect Claims

Many factors make children ideal targets for development into soldiers. They are “physically and psychologically [more] vulnerable than adults, making them easier” to coerce and manipulate, and they are “less demanding than adults,” requiring less logistical support and pay.^[82] Consequently, “children are combatants in nearly three-quarters of the world’s conflicts,” posing an ethical and moral dilemma for the professional militaries they confront.^[83]

While their use has become more widely known due to increased international coverage of conflicts where they are utilized, the issue of child soldiers was already being addressed in the 1977 Additional Protocols to the Geneva Conventions I and II, which both noted that children how had not attained the age of fifteen would not be recruited nor allowed to partake in hostilities.^[84] However, the term “child soldier” crystalized in the 1997 Cape Town Principles, which shifted the minimum age of culpability to eighteen and provided a more precise definition of a child soldier:

A person under 18 years of age who is part of any kind of regular or irregular armed force or armed group in any capacity, including but not limited to cooks, porters, messengers and anyone accompanying such groups, other than family members. The definition includes girls recruited for sexual purposes and for forced marriage. It does not, therefore, only refer to a child who is carrying or has carried arms.^[85]

This definition and age limit was reaffirmed in the United Nations (UN) Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which further stated that States Party to the protocol would “take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities” and “shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.”^[86]

Since establishing this cutoff, few individuals taken into armed groups before turning eighteen have been prosecuted as adults for actions committed during their tenure as child soldiers. The issue first truly came to light at the international level after the creation of the Special Court for Sierra Leone. Due to the pervasive use of child soldiers in that conflict, the question of criminal culpability amongst juveniles was hotly contested.^[87] However, in a report prepared for the UN Security Council, Secretary-General Kofi Annan set the tone for future discussions by noting that “although the children of Sierra Leone may be among those who have committed the worst crimes, they are to be regarded first and foremost as victims.”^[88]

Local governments in Africa, while having considered the prosecution of child soldiers, have largely not done so. After the Rwandan genocide, over one thousand children were imprisoned for their actions, but few were ever tried.^[89] In 2000, the Democratic Republic of Congo executed a fourteen-year-old child soldier, but when it sentenced four others the following year, NGOs intervened and stopped the executions.^[90] In 2002, Uganda charged two former LRA child soldiers, but again, NGOs successfully stopped the proceedings.^[91]

These examples focus primarily on regional and localized violence by armed groups in Africa. However, the UN has also noted that “owing to the expanding reach and propaganda of terrorist and violent extremist groups, child recruitment and exploitation is in no way limited to conflict-ridden areas.”^[92] The imprisonment of Omar Khadr—a fifteen-year-old Al Qaida member charged as an enemy combatant by the U.S.^[93]—demonstrates that conversations regarding the prosecution of child soldiers extend across the world and into other types of conflicts as well. The U.S. admission that it held twelve juveniles at Guantanamo Bay^[94] shows that combatants under the age of eighteen have been prosecuted for participation in terrorist organizations.^[95]

Despite increased attention and efforts to limit the use of those under the age of eighteen in warfare, child soldiering remains prominent and has posed a challenge for militaries tasked with engaging them.^[96] With the development of international courts, child soldiers have also begun to pose an issue to those seeking to provide justice for victims of war crimes and crimes against humanity. The question that has arisen is whether child soldiers should “be prosecuted for their crimes.”^[97] Standards have not crystallized. “Ongwen is believed to be the only former child abductee to face charges before the ICC,”^[98] but—as will be discussed in Part 5—in Ongwen, they arguably largely ignored the problem.

However, considering Ongwen, academics have more deeply considered the issue and have proposed a variety of approaches that could be taken in future cases where a victim—a former child soldier—turned into a perpetrator. A prominent theory, and one which was introduced by the Defense, is that a child abducted at a young age and forced to endure unspeakable horrors has had their moral compass so wholly shattered that they are incapable of understanding the wrongness of their actions.

This theory resembles the “Rotten Social Background” defense raised in United States v. Alexander.^[99] There, in an opinion concurring and dissenting in part, Judge Bazelon argued that a “trial judge erred in instructing the jury to disregard the testimony about defendant’s social and economic background. That testimony might well have persuaded the jury that the defendant’s behavioral controls were so impaired as to require acquittal, even though that impairment might not render him clinically insane.”^[100]

Regarding international law, one argument presented by the Defense was that his abduction at a young age triggered the protections reserved for trafficked persons and that, as recommended by the Office of the United Nations High Commissioner for Human Rights, “children who are victims of trafficking should not be subject to criminal procedures or sanctions for offences which are related to their situation as trafficked.”^[101] The Defense proposed that under this rationale, his enslavement and trafficking by the LRA provided a “basis for his non-liability and non-punishment.”^[102] The Chambers dismissed this argument.

Further examining international law—and while acknowledging that there is no system of binding precedent in the ICC^[103]—the primary case that has touched upon the issue of child soldiers is that of Prosecutor v. Lubanga.^[104] The Chambers’ treatment of child soldiers under Lubanga’s command merits consideration. “It was essential to the Lubanga decision that the child soldier was contemplated in continuity—once someone was a child soldier, they would always be considered a child soldier through and through.”^[105] In Lubanga, the Chamber considered the link between one’s “past as a child soldier and the present as a former child soldier as linear… the child soldiering experience was constructed as ongoing and assured: it rendered the children as victims damaged for life, with their reality today as derivative of their previous suffering.”^[106]

Yet, because Lubanga himself was not a child soldier, the case does not precisely fit the facts of Ongwen and, therefore, does not answer an important question that arose there. Namely, at what point—if ever—does a former child soldier finally take the mantle of responsibility for their actions upon their shoulders? In short, does the “hunted… ipso facto become the hunter upon his eighteenth birthday?”^[107]

5. Critique

5.1 Changes in Attitudes Regarding SGBV

In Ongwen, the Trial Chamber appears to have taken the ICTY and ICTR’s “ground-breaking”^[108] approach towards SGBV and gone further. It approached SGBV more holistically than in any prior case, demonstrating a compassionate approach to the horrors endured by SGBV victims and, for the first time, charging a Defendant with forced marriage and forced pregnancy. Of course, such progress is not itself an end-state. It is just another step in the right direction.

Regarding the Ongwen court’s progressive handling of victims, this was most vividly seen in the treatment of witness “P-227,” a female allegedly abducted and forced into becoming one of Ongwen’s “wives.” “The defence challenged her testimony, noting that P-227 denied having been raped when she spoke with NGO workers directly after her escape, but then claimed she had been raped when interviewed by ICC investigators.”^[109] P-227 would explain the discrepancy as being due to the recent nature of the trauma and the NGO workers being male.

The Pre-Trial Chamber, taking “into account her account of trauma and her stated preference for speaking with female investigators,” ultimately found her testimony reliable.^[110] “In reaching that conclusion, the judges demonstrated an awareness of the gendered social context that makes it difficult for some women to disclose their experiences of sexual violence, especially when speaking to men.”^[111] The Trial Chamber made a similar sensitive choice and agreed to accept the testimony of SGBV recorded at the pre-trial stage. “In making that decision, the Chamber recognized that calling the witnesses to give their evidence a second time would put them under unnecessary strain.”^[112] These attitudes, if replicated in future cases, will help ensure that victims, understandably intimidated by the proposition of speaking about their experiences, will not lose their chance at justice simply because they are traumatized and afraid.

The other part of the Ongwen decision that must be noted in this critique is the decision to hold Ongwen responsible for the crime of forced pregnancy. As Julia Tétrault-Provencher notes, the “Ongwen Trial Judgment represents a landmark holding for the prosecution of crimes concerning reproductive rights. This judgment, read in conjunction with independent human rights experts’ scholarship, can shed light on the legal contours of this crime.”^[113]

Article 7(1)(g) of the Rome Statute lists forced pregnancy as a crime against humanity when it is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”^[114] Article 7(2)(f) then defines forced pregnancy as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.”^[115]

However, despite many circumstances since the creation of the Rome Statute where forced pregnancy occurred, Ongwen was the first time the ICC’s charging decisions accused a defendant of this crime. As a case of first impression, it served as a chance for the Court to elaborate on its interpretation of the relevant sections of the Rome Statute. The decision in the trial resulted in mixed feelings at the international level.

On the one hand, in Counts 58 and 59, the Chamber found Ongwen guilty of forced pregnancy^[116] and, as such, for the first time, established this crime as one that a prosecutor could successfully charge. However, as pointed out by Tétrault-Provencher, the Chamber did not find Ongwen guilty simply for not giving these women “the free choice to decide whether to continue their pregnancy.”^[117] Instead, it found Ongwen guilty because he had committed other crimes in connection with the forced pregnancy. Tétrault-Provencher argues correctly that “the requirement to prove that the perpetrator had the intent of committing another grave violation encourages victims to bring cases of forced pregnancies as the aggravating consequences of another grave violation…”^[118] This, in turn, “fosters the idea that reproductive violence cannot be prosecuted on its own.”^[119]

Two strategies could be utilized to enforce better the concept that reproductive violence is in and of itself severe enough for condemnation and prosecution. First, Article 7(2)(f) could simply be amended, and the “the unlawful confinement of a woman forcibly made pregnant” clause struck and replaced with a phrase akin to “the forcible impregnation of a woman.” Alternatively, courts could use a broader definition of the “unlawful confinement” clause found in Article 7(2)(f). To confine means “to limit an activity, person, or problem in some way,”^[120] therefore, in the context of forced pregnancy, confinement need not focus on physical confinement but rather any unlawful limitation placed upon a woman’s freedom to choose the outcome of her pregnancy. The adoption of either approach would allow for the prosecution of not only those who forced women to bear children by limiting their ability to escape captivity but also those whose actions deprived women of access to reproductive care through other measures.

This issue aside, from a historical perspective, the Ongwen case arguably serves as the current high point in the international criminal treatment of SGBV. Due to its compassionate treatment of witnesses and willingness to pursue novel crimes previously disregarded by other prosecutions, it should be seen as progress in prosecuting particularly vicious crimes, typically against the most innocent victims. That said, the provisions in the Rome Statute that required forced pregnancy to be tied to other grave crimes remain a limiting factor.

5.2 Significance of Dismissal of Article 31 Claims

While Ongwen is believed to be the only former child soldier to face charges before the ICC, the Trial Chamber largely ignored this issue, with little consideration being paid to the arguments that his background as a child soldier left him incapable of differentiating between right and wrong. The Prosecutor was even more silent; her 285-page Pre-Trial Brief, “which details all the charges and Ongwen’s position of authority… makes no mention whatsoever of Ongwen’s background… it is totally (and ironically) silent with regards to the brutalities and coercion that Ongwen himself had endured.”^[121]

Ongwen’s lawyers point out that—in their verbiage—the Chambers carved out an “Ongwen Exception” in which “the toxic, traumatic, and often lethal environment of the LRA affected all other abductees, except for Mr Ongwen.”^[122] This argument is not without merit, especially when examining that the Chambers largely refused to consider the long-term consequences of the potential long-term psychological damage inflicted upon Ongwen during his childhood. This refusal is most clear in the Chambers’ conclusion regarding the mental defect defense, where it stated that expert witnesses “did not identify any mental disease or disorder in Dominic Ongwen during the period of the charges…”^[123] The Chambers’ decision to only look at whether Ongwen demonstrated signs or symptoms of mental illness during the period of the charges underscores that it was largely dismissing Ongwen’s childhood as a mitigating factor.

The point at which the Chamber appears to have begun considering Ongwen’s background and tragic history was at sentencing. Given the ability to sentence Ongwen to life imprisonment, the Chamber declined to exercise that option, stating:

The Chamber is confronted in the present case with a unique situation of a perpetrator who willfully and lucidly brought tremendous suffering upon his victims, but who himself had previously endured grave suffering at the hands of the group of which he later became a prominent member and leader. The Chamber was greatly impressed by the account given by Dominic Ongwen at the hearing on sentence about the events to which he was subjected upon his abduction when he was only 9 years old…

The circumstances of Dominic Ongwen’s childhood are indeed compelling, and the Chamber cannot disregard them in the determination of whether life imprisonment represents the just sentence in the present case… By no means does Dominic Ongwen’s personal background overshadow his culpable conduct and the suffering of the victims – the Chamber wishes to emphasise this point again in the strongest terms. Nevertheless, the specificity of his situation cannot be put aside in deciding whether he must be sentenced to life imprisonment for his crimes.^[124]

The Chamber sentenced Ongwen to twenty-five years imprisonment, and, as previously noted, Judge Raul C. Pangalangan filed a Partially Dissenting Opinion stating that he believed a thirty-year sentence was deserved.^[125]

The choice to consider Ongwen’s history as a child soldier at sentencing, when viewed alongside the Chamber’s dismissal of claims regarding a 31(a) defense, creates a muddled view of the decision. During his trial, Ongwen’s abduction and childhood were ignored mainly due to the egregious nature of his conduct. Meanwhile, during sentencing, this history apparently played a significant role in the Chamber’s choice not to pursue the maximum allowed. It seems counterintuitive not to consider it more holistically during all trial phases.

From a practical perspective, the Court’s dismissal of the Article 31(a) defense regarding mental disease or defect formed due to Ongwen’s forced abduction^[126] appears to have occurred primarily because of failures committed by the Defense’s expert witnesses. Yet, despite errors by the two physicians in question, the Chamber evidently saw past those errors during sentencing.

A question that arises is whether, if during its contemplation of an appropriate sentence, the Chamber was moved to consider the way that Ongwen’s abduction influenced his actions, why did it not also consider his childhood when considering his legal culpability and his ability to form the necessary mens rea for the crimes committed? If the expert testimony dismissed by the Chamber was insufficient to affect the decision on the charges, arguably, it had no place playing a role in the sentencing.

6. Conclusion

Reflecting upon the issues raised in Ongwen, this paper proposes that—when dealing with former child soldiers who are both victims and perpetrators—courts should consider crimes directly involved with warfare more holistically than crimes relating to SGBV. In effect, courts should bifurcate such cases and assess liability and defenses through a different lens based on the charges.

The Ongwen court started down this path when it decided that “the charges [could] be sub-divided into three main categories.”^[127] The Chamber arguably recognized that the types of crimes committed in military attacks against the four IDP camps were different than the charges concerning SGBV directly perpetrated by Ongwen and other SGBV for which he did not directly perpetuate but for which he was still responsible.^[128]

Drawing lines between military-related crimes and SGBV would also allow prosecutors to better navigate the troubled waters of cases like Ongwen’s, where a zero-sum^[129] game of “child soldier” or “not child soldier” leads both prosecution and defense to ignore many subtleties that should be considered in the general pursuit of justice.^[130] Such binaries are disruptive. If the Court is to cede that victim turned perpetrator is forever a victim, then those demanding justice against the new perpetrator shall never have their day. Meanwhile, if no consideration can be made of a childhood filled with violence and manipulation, then there is no justice for the child kidnapped against their will and coerced into becoming a killing machine.^[131] Neither result should be acceptable.

Ongwen’s case includes details that support a proposition regarding the differentiation between military criminal acts and sexual/gender-based criminal acts. While it is incontrovertible that Ongwen learned extreme violence in warfare through his childhood indoctrination, his attitudes towards sexual relations appear less influenced.

Ongwen’s understanding of this realm is most clearly demonstrated through the juxtaposition of his treatment of different groups of women. For example, he “‘permitted’ several of his concubines to escape with his many children,” and one of his former “wives” was among those calling for him to be granted amnesty.^[132] That wife, Florence Ayot, stated that Ongwen loved her son like his own children by other wives, was never “quarrelsome,” and had lived happily together.^[133] However, this depiction of an apparently kind husband and father is in stark contrast to the testimony of those like P-227, one of Ongwen’s eight direct victims, who explained in graphic detail Ongwen’s vaginal and anal rape of her at gunpoint.^[134]

Such disparate behavior suggests that when considering SGBV, Ongwen may have understood right from wrong as well as the desires and wants of those sexually victimized at his hands. This argument was supported by the testimony of the Prosecution’s expert witness, Dr. Gillian Clare Mezey, who noted that the evidence she examined demonstrated Ongwen generally had a sense of “moral awareness or an awareness of the difference between right and wrong.”^[135]

This disputes the idea that his childhood abduction must be taken into consideration when deciding on culpability for actions related to SGBV. The psychological processes that turned the child Ongwen into a ruthless and violent military commander—one who may have truly believed that his forms of warfare were legitimate—may not have completely shattered his understanding of normal sexual and romantic relations. Thus, at some level, he may have known that at least those actions were wrong and should be culpable.

However, the idea that a victim-perpetrator’s responsibility for SGBV cannot be mitigated by their childhood abduction does not mean that their responsibility for other types of crimes cannot be mitigated. This fact is particularly applicable when it comes to situations like Ongwen’s, where war-related crimes are closely linked to the circumstances of his abduction and the types of acts he was forced to commit as a child.

Treating SGBV charges in cases like Ongwen’s differently from those related to military attacks would serve three purposes. First, by creating a differentiation, those whose backgrounds may necessitate that courts consider their history as victim-perpetrators could still be held strictly responsible for SGBV while having military-related crimes viewed through a lens that takes into consideration the military indoctrination they began at young ages. Second, by placing SGBV in a category where even mental defect and childhood brainwashing provide no defense, it would reinforce the fact that SGBV needs to be considered among the most heinous taboos in armed conflict, ensuring that future cases are presented with clear precedent condemning SGBV and demonstrating the ICC’s dedication to taking SGBV seriously. Lastly, with two distinct paths, prosecutors could demonstrate an unwavering commitment to getting justice for victims of SGBV while also showing compassion for defendants who were, at one point, victims.

Admittedly, this framework—where Ongwen would effectively face two trials—could have resulted in a total Article 31(a) defense on warfare-related crimes while still resulting in life imprisonment for SGBV crimes. On its face, the fact that a harsher sentence could occur may appear as a miscarriage of justice. However, it would more holistically evaluate a defendant for culpability. Such a result would help future courts avoid the pitfalls of having to choose absolutely whether to take into consideration a victim-perpetrator’s history as a child soldier. It would promote justice, not just for the obvious victims, but also for the child who was manipulated, threatened, and coerced into committing horrible crimes at the behest of others. Effectively, in a situation too complex for a simplistic approach, it would use two sets of properly calibrated scales instead of a single one through which a zero-sum calculation of guilt is necessary.

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*Zej Moczydłowski

J.D. Candidate, Washington University School of Law (WashU Law); Sergeant First Class and Special Operations Combat Medic, U.S. Army Reserves. The views expressed are those of the author and do not reflect the official policy or position of the U.S. Army, U.S. Special Operations Command, U.S. Department of Defense, or the U.S. Government.

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[1] The phrases “sexual and gender-based violence” (SGBV), “sexual and gender-based crimes” (SGBC), and “gender-based violence” (GBV) are all used, somewhat interchangeably, to reference the types of acts committed by Dominic Ongwen, the LRA, and similar individuals and groups. First, this paper uses SGBV rather than SGBC because, in a conversation regarding charges, calling something a crime at the outset may inadvertently cast an assumption of guilt upon the accused. Second, while the ICC Office of the Prosecutor is correct when it calls for a “gender perspective,” the exclusion of sexuality in “GBV” dismisses the way that such violence is often rooted in carnal desires pursued through violent, illegal, and non-consensual acts. When illegal conduct is rooted in the pursuit of sexual dominance and/or gratification, minimizing that particular aspect of the acts is to arguably—and incorrectly—ignore part of the motivation for their commission. See Office of the Prosecutor, Policy on Gender-Based Crimes, ICC-OTP (Dec. 2023), https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf (“Gender perspective refers to the understanding of differences in status, power, roles, and needs between men and women, including/and LGBTQI+ persons, and how gender inequality and discrimination on the basis of sex, gender identity or sexual orientation may impact people’s opportunities, interactions, and experiences in a given context. This understanding includes an awareness of how gender-related norms can vary within and across contexts”).

[2] Fact Sheet Counter Lord’s Resistance Army (C-LRA), ReliefWeb (Sept. 16, 2016), https://reliefweb.int/report/uganda/fact-sheet-counter-lord-s-resistance-army-c-lra.

[3] Prosecutor v. Kony, Case No. ICC-02/04-01/05, Document Containing the Charges, ¶¶ 3–4 (Jan. 19, 2024).

[4] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Appeals Judgment, ¶ 51 (Dec. 15, 2022).

[5] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 12 (Feb. 4, 2021).

[6] Id. at ¶¶ 13–14.

[7] Julia Brown, When Children are Trained to Kill: A Look at the Victim-Perpetrator Debate in the United States and Uganda, 38 Ariz. J. Int’l & Comp. Law 375, 376 (2022).

[8] Id. at ¶¶ 26–29.

[9] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ 569 (Mar. 13, 2020).

[10] See Prosecutor v. Kony, Case No. ICC-02/04-01/05, Document Containing the Charges, ¶¶ 88–91 (Jan. 19, 2024).

[11] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶¶ 1014–16 (Feb. 4, 2021).

[12] Id. at ¶ 38.

[13] Id. at ¶ 15.

[14] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Report of the Registry on the Voluntary Surrender of Dominic Ongwen and His Transfer to the Court, ¶¶ 1–3 (Jan. 22, 2015).

[15] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 15 (Feb. 4, 2021).

[16] Charles A. Taku & Beth S. Lyons, The Ongwen Judgments: A Stain on International Justice, J. Int’l Crim. L. 1, 1–2 (2024) [hereinafter Taku & Lyons].

[17] See Prosecutor v. Ongwen, supra note 15, at ¶ 16.

[18] Id. at ¶ 32.

[19] Taku & Lyons, supra note 16, at 2.

[20]See Prosecutor v. Ongwen, supra note 15 at ¶ 10.

[21] Id. at ¶ 34.

[22] Id. at ¶ 35.

[23] Id. at ¶ 36.

[24] Counts 69–70 related to the conscription and use of children under the age of fifteen years and their use in armed hostilities but are also not relevant to this paper.

[25] Marina Kumskova, Invisible Crimes Against Humanity of Gender Persecution: Taking a Feminist Lens to the ICC’s Ntaganda and Ongwen Cases, 57 Tex. Int’l L.J. 239, 241 (2002).

[26] Q&A: The LRA Commander Dominic Ongwen and the ICC, Hum. Rts. Watch (Jan. 27, 2021), https://www.hrw.org/news/2021/01/27/qa-lra-commander-dominic-ongwen-and-icc [hereinafter Human Rights Watch].

[27] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ B(i) (Mar. 13, 2020).

[28] Id.

[29] Taku & Lyons, supra note 16, at 4.

[30] Prosecutor v. Kony, Case No. ICC-02/04-01/05, Document Containing the Charges, ¶ 11 (Jan. 19, 2024).

[31] In session, the 16^th Annual International Humanitarian Law Roundtable considered this issue at length. Ultimately, all parties in the debate appeared to agree that any attempt at an affirmative defense due to mental duress would have failed because, by the time of his surrender, Ongwen no longer faced the proverbial “gun to the head” required to demonstrate a fear of imminent retaliation against an individual who disobeyed their commander.

[32] Rome Statute of the International Criminal Court art. 31(a), July 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute].

[33] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ 546 (Mar. 13, 2020).

[34] Id. at ¶ 537.

[35] Id. at ¶ 522.

[36] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Appeals Judgment, ¶ 1119 (Dec. 15, 2022).

[37] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 2527 (Feb. 4, 2021).

[38] Id. at ¶ 2531.

[39] Id. at ¶ 2527.

[40] Id. at ¶ 2533.

[41] Id. at ¶ 2545.

[42] Id. at ¶ 3116.

[43] Id.

[44] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Sentence, ¶ 386 (May 6, 2021).

[45] Id. at ¶ 388.

[46] Id. at ¶ b.

[47] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Partly Dissenting Opinion of Judge Raul C. Pangalangan, ¶¶ 16–19 (May 6, 2021).

[48] Id. at ¶ 15.

[49] See Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Appeals Judgment, ¶ 1277 (Dec. 15, 2022).

[50] Id.

[51] Id. at ¶¶ 1685–87.

[52] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A2, Judgment on the Appeal of Mr. Dominic Ongwen Against the Decision of Trial Chamber IX of 6 May 2021 Entitled “Sentence”, ¶ 373 (Dec. 15, 2022), (Judge Ibáñez Carranza partly dissented on one ground of appeal—the allegation of double-counting the factor of a multiplicity of victims—and would have reversed the twenty-five-year sentence and remanded to the Trial Chamber for it to determine a new sentence).

[53] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Reparations Order, ¶ 795 (Feb. 24, 2024).

[54] Jonathan Gottschall, Explaining Wartime Rape, 41 J. Sex Rsch. 129, 130 (2004).

[55] Nicola Henry, Theorizing Wartime Rape: Deconstructing Gender, Sexuality, and Violence, 30 Gender and Soc’y 45, 45 (2016).

[56] Julia Tétrault-Provencher, Replicating the Definition of ‘Forced Pregnancy’ from the Rome Statute in a Future Convention on Crimes Against Humanity: A Tough Pill to Swallow, 33 Hastings Women’s L.J. 105, 107 (2022) [hereinafter Tétrault-Provencher].

[57] Jocelyn Campanaro, Women, War, and International Law: The Historical Treatment of Gender-Based War Crimes, 89 Geo. L.J. 2557, 2562 (2001) [hereinafter Campanaro].

[58] Janet Halley, Rape at Rome: Feminist Interventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law, 30 Mich. J. Int’l L. 1, 43–44 (2008).

[59] Id. at 44.

[60] See Campanaro, supra note 57, at 2564.

[61] Kelly D. Askin, Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288, 288 (2003) [hereinafter Askin].

[62] Dianne Luping, Prosecuting Sexual and Gender-Based Crimes Before Internationalized Criminal Courts: Investigation and Prosecution of Sexual and Gender-Based Crimes Before the International Criminal Court, 17 Am. U.J. Gender Soc. Pol’y & L. 431, 440 (2009) [hereinafter Luping].

[63] Id. at 445.

[64] Id.

[65] See Askin, supra note 61, at 317.

[66] Prosecutor v. Gagovic, Case No. IT-96-23-1, Indictment (Jun. 26, 1998).

[67] See Luping, supra note 62, at 446.

[68] Id.

[69] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement (Sep. 2, 1998).

[70] See Askin, supra note 61, at 318.

[71] Tanja Altunjan, Sexual Violence in International Criminal Law: The International Criminal Court and Sexual Violence: Between Aspirations and Reality, 22 German L.J. 878, 878 (2021) [hereinafter Altunjan].

[72] Id. at 881.

[73] Id. at 878.

[74] Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06, Judgment (Jul. 8, 2019).

[75] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment (Feb. 4, 2021).

[76] See Altunjan, supra note 71, at 884.

[77] Rosemary Grey, Gender and Judging at the International Criminal Court: Lessons from “Feminist Judgment Projects”, 34 Leiden J. of INT’L L. 247, 252 (2021) [hereinafter Grey].

[78] See Office of the Prosecutor, Policy on Gender-Based Crimes, ICC-OTP (Dec. 2023), https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf.

[79] Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment (Mar. 14, 2012).

[80] See Grey, supra note 77, at 258.

[81] Id.

[82] Ally McQueen, Falling Through the Gap: The Culpability of Child Soldiers Under International Criminal Law, 94 Notre Dame L. Rev. Reflection 100, 103 (2019) [hereinafter McQueen].

[83] Eben Kaplan, Child Soldiers Around the World, Council on Foreign Rels. (Dec. 2, 2005), https://www.cfr.org/backgrounder/child-soldiers-around-world [hereinafter Kaplan].

[84] See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 77(2), June 8, 1977, 1125 U.N.T.S. 3. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 4(2)(c), June 8, 1977, 1125 U.N.T.S. 609.

[85] Cape Town Principles, U.N. Int’l Child.’s Emergency Fund (Apr. 30, 1997).

[86] G.A. Res. 54/263 (Mar. 16, 2001).

[87] See McQueen, supra note 82, at 115.

[88] U.N. Secretary General, Report of the Secretary General on the Establishment of a Special Court for Sierra Leone, U.N. Doc. 2/2000/915 (Oct. 4, 2000). See also, McQueen, supra note 83 (noting Secretary General Annan would go on to state that the court “would not necessarily exclude persons of young age from [its] jurisdiction.” However, the Prosecutor for the Court, David Crane, “quickly made it very clear that he would never prosecute anyone under the age of eighteen”).

[89] See McQueen, supra note 82, at 124.

[90] Id.

[91] Id.

[92] Handbook on Children Recruited and Exploited by Terrorist and Violent Extremist Groups: The Role of the Justice System, U.N. Off. on Drugs & Crime (2017).

[93] Omar Khadr Charge Sheet, United States v. Khadr, 717 F. Supp. 2d 1215 (U.S.C.M.C.R. 2007), https://www.mc.mil/Portals/0/pdfs/Khadr/Khadr%20(AE001).pdf.

[94] Jennifer Turner, Pentagon Admits Number of Guantánamo’s Children is Higher than Originally Disclosed, ACLU (Nov. 17, 2008), https://www.aclu.org/news/national-security/pentagon-admits-number-guantanamos-children-higher-originally.

[95] Khadr’s case shows how the U.S. approach to child combatants or soldiers differs from international consensus because the U.S. appears to use the age of sixteen as the line of demarcation between a child and an adult for these purposes. Other juvenile combatants under the age of sixteen captured during U.S. operations in the same time frame were sent to Camp Iguana, accommodated separately from adults, and received not only schooling but also group therapy sessions. “The only reason for the difference between their and Khadr’s treatment . . . is that Khadr was only transferred to Guantanamo after his sixteenth birthday, despite the fact that he was originally detained when he was fifteen years of age.” See also Matthew Happold, Child Soldiers: Victims or Perpetrators?, 29 U. La Verne L. Rev. 56, 86 (2008).

[96] See Kaplan, supra note 83.

[97] See McQueen, supra note 82, at 101.

[98] Human Rights Watch, supra note 27.

[99] U.S. v. Alexander, 471 F.2d 923 (D.C Cir. 1973) (Bazelon, C.J., dissenting).

[100] Richard Delgado, Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation, 3 Minn. J.L. & Inequality 9, 20–21 (1985). See also U.S. v. Alexander, 471 F.2d 923, 961 (D.C Cir. 1973) (Bazelon, C.J., dissenting).

[101] Taku & Lyons, supra note 16, at 9.

[102] Id. at 10.

[103] Rome Statute, supra note 32, art. 21(2) (stating that the Court may—not must—”principles and rules of law as interpreted in its previous decisions”).

[104] Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment (Mar. 14, 2012).

[105] Layal Issa, Avoiding the Third Tragedy: Evaluating Criminal Responsibility of Child Soldiers Under International Law, 34 Temp. Int’l & Comp. L.J. 61, 73–74 (2020).

[106] Mark A. Drumbl, Victims Who Victimise, 4 London Rev. Int’l L. 217, 242 (2016) [hereinafter Drumbl].

[107] Raphael L. A. Pangalangan, Dominic Ongwen and the Rotten Social Background Defense: The Criminal Culpability of Child Soldiers Turned War Criminals, 33 Am. U. Int’l L. Rev. 605, 619–20 (2018).

[108] Luping, supra note 62, at 445.

[109] See Grey, supra note 77, at 260.

[110] Id. at 261.

[111] Id.

[112] Id. at 263.

[113] See Tétrault-Provencher, supra note 57, at 114.

[114] Rome Statute, supra note 32, art. 7(1)(g).

[115] Id. at art. 7(2)(f).

[116] See generally Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 12 (Feb. 4, 2021).

[117] See Tétrault-Provencher, supra note 57, at 132.

[118] Id. at 133.

[119] Id.

[120] Meaning of ‘Confine’ in English, Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/confine.

[121] Mark A. Drumbl, A Former Child Soldier Prosecuted at the International Criminal Court, OUP Blog (Sep. 26, 2016), https://blog.oup.com/2016/09/child-soldier-prosecuted-icc-law/.

[122] Taku & Lyons, supra note 16, at 3.

[123] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 2580 (Feb. 4, 2021).

[124] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Sentence, ¶¶ 388–89 (May 6, 2021).

[125] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15A, Partly Dissenting Opinion of Judge Raul C. Pangalangan, ¶¶ 16–19 (May 6, 2021).

[126] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Public Redacted Version of Corrected Version of Defence Closing Brief, ¶ 536 (Mar. 13, 2020).

[127] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Judgment, ¶ 33 (Feb. 4, 2021).

[128] Id.

[129] Drumbl, supra note 106.

[130] Id. at 242 (“If the defence presents Ongwen only as an innocent child, and the prosecution responds by redlining the fact that Ongwen had entered the LRA as a child and came of age in such a dismal setting, then the result will be to embed the binaries even further”).

[131] See Drumbl, supra note 106, at 217.

[132] Id. at 238.

[133] Dominic Ongwen: From Child Abductee to LRA Rebel Commander, BBC (May 6, 2021), https://www.bbc.com/news/world-africa-30709581.

[134] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Confirmation of Charges (Transcript), 41–42 (Jan. 1, 2016), https://www.icc-cpi.int/sites/default/files/Transcripts/CR2016_02436.PDF.

[135] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15, Trial Hearing (Transcript), 47 (Mar. 19, 2018), https://www.icc-cpi.int/sites/default/files/Transcripts/CR2018_04200.PDF.

Cover image credit 

 

*Piotr Filip Parkita

I. Potential for colonizing Mars

In May 2024, Małgorzata Polkowska published an interesting article about projects for colonizing Mars and other celestial bodies. Special attention should be given to the legal considerations she offers within the framework of contemporary space law doctrine. The international community currently lacks adequately constructed legal regulations that would comprehensively address this subject. Denis Safronov, a Russian researcher, highlighted how the Outer Space Treaty of 1967 (OST) fails to account for the legal challenges arising from the  exploration of space. There is indeed a legal gap in this area. The laws enacted in the last century are not adequate to address the challenges of modern industry and the ambitions for space development. The international community should take steps to regulate this issue.

The colonization of Mars is not a distant concept; it should be considered realistically. Mars possesses numerous resources that might facilitate human colonization. The existence of water ice is essential for supplying drinking water as well as agricultural purposes. Additionally, water can be separated into hydrogen and oxygen. These elements are vital for rocket fuel and breathing. Polkowska, for example, cited the ongoing Artemis program, which is an exciting step in human’s journey to Mars (this program is being implemented by NASA, ESA, and JAXA, among others). Artemis consists of several key elements that are expected to play a crucial role in the success of the mission, including the expansion of the Gateway station and the establishment of the Artemis Base Camp on the lunar surface. 

Private enterprises are intimately involved in this domain: Elon Musk, the CEO of SpaceX, projected in 2022 that his company’s inaugural manned mission to Mars might commence as soon as 2029. These plans presently seem rather ambitious. However, it is evident that the concept of colonization continues to captivate the imagination, presenting an escalating array of challenges to humanity. One of these challenges is the accurate legal classification of such activities, which necessitates a robust regulatory framework specifically addressing these ventures. Abu Rayhan noted that while “significant technological, health, ethical, and legal hurdles remain, ongoing advancements and international collaboration could make human settlement of other planets a reality in the coming decades.”

II. Problems arising from the Outer Space Treaty

Given the accelerating advancement of entities within the space industry, including those collaborating with governmental agencies, it is essential to formulate appropriate legal frameworks to facilitate the objective categorization of these activities. These entities are subject to the jurisdiction of multiple nations, which complicates the process of achieving legal harmonization. The legal regime governing the potential colonization of Mars is regulated by the OST. Other legal acts related to outer space include the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, also referred to as the Rescue Agreement. These instruments are intended to ensure the peaceful exploration and use of outer space.

The OST is a legal instrument adopted in 1967, with 115 states as its parties. It failed to consider the issues that would arise from rapid technological advancement and the increasing presence of activities such as space tourism. Despite the fact that Mars colonization is a plausible concept that could become a reality in the near future (within the next decades or so), I refer to it as the “tomorrow for which we are not prepared.” The OST, in its current form, is not equipped to regulate actions supporting the concept of Mars colonization, which is increasingly emerging within the international community. A thorough analysis of the articles of this document (I, II, VI, VIII, IX) is necessary.

As John Clayton rightly notes, nations can withdraw from the OST with a one-year notice period, after which they are no longer constrained by the provisions of this legal instrument. This would allow states to make claims over certain areas of outer space and use them according to their national interests without restriction. Such an option appears particularly advantageous for countries with superior technological and budgetary resources, especially P5 countries on the UN Security Council. Opposition to their actions would likely be ineffective, given that the strategic advantages of space exploitation would surpass any temporary negative effects on these countries’ international relations. The P5 countries vested with veto power on the UN Security Council are China, France, Russia, the United Kingdom, and the United States of America — leading players in the space race with equipment and technology far more advanced than those of other treaty members.

Thus, it is necessary to develop appropriate solutions that can secure the interests of smaller nations with less advanced technology in the future, allowing them to participate on more even footing in space colonization.

III. The premises undergirding colonization in the context of the Outer Space Treaty

Article I of the OST establishes a fundamental principle for the exploration and use of outer space: all such activities “shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” This principle implies that any benefits derived from activities in outer space, including those associated with colonization or the establishment of human settlements on celestial bodies like Mars, must be shared equitably. The concept of “the province of all mankind” emphasizes that outer space is a domain where no state or entity can claim exclusive rights to the fruits of exploration, thus framing space as a collective heritage and resource.

This principle introduces a critical constraint: colonization must be universally advantageous, accessible to all countries, and cannot be exploited solely for the individual benefit of the state or private entity that initiates such efforts. This stipulation directly opposes the historical model of Earth-based colonization, where the colonizing power often derived unilateral benefits, primarily through the extraction of natural resources and the establishment of exclusive economic zones. Any space colonization must adhere to a model that prioritizes shared benefits, consistent with the spirit of global cooperation embedded in the OST.

From this perspective, the logical approach to space colonization would be through collaborative missions involving multiple countries, all of which are parties to the OST. Such joint endeavors would help ensure that the outcomes of space exploration and resource use align with the principle of the common good. Collaborative missions would facilitate the sharing of technology, scientific knowledge, and resources, thereby minimizing the risk of any single state monopolizing the advantages of space colonization.

However, the practical realization of these principles presents challenges, especially when considering the concept of terra nullius. While Mars qualifies as terra nullius (nobody’s land) under international law, the limited and non-renewable nature of its resources could eventually lead to competition and exclusive claims by states or private entities that undertake colonization efforts.

Furthermore, the historical context of Earth-based colonization demonstrates a pattern of competitive exploitation of natural resources and territory. Although space colonization differs fundamentally — given the absence of indigenous human populations and the unique legal status of outer space — the risk remains that individual states may seek to secure preferential, or worse yet, exclusive access to Martian resources in the long term. This could manifest through the construction of infrastructure, the establishment of research stations, or through long-term resource extraction activities. Such actions, if not carefully regulated, would be at odds with the cooperative framework required by Article I of the OST.

Therefore, any approach to space colonization must not only focus on technical feasibility and scientific advancement but also address these legal and ethical considerations. It must balance the interests of pioneering states with those of the broader international community, maintaining compliance with the OST’s overarching goal of ensuring that space remains a domain where benefits are equitably shared and where activities are conducted for the collective good of humanity.

A possible solution would be the introduction of a separate legal act defining the scope and possibility of claims, similar to the approach taken in the case of Antarctica, where such arrangements were adopted for a specific period. Initially, potential Martian colonies can be similar in concept to polar stations, such as the President Eduardo Frei Montalva Base, along with the inhabited outpost Villa Las Estrellas, which the Chilean government considers as part of the commune Antártica (“commune” being the smallest administrative subdivision in Chile), and thus, de facto, a part of Chilean territory. It should be noted, however, that in the case of the Antarctic Treaty, no prohibition of claims was included. In fact, this treaty somewhat “suspended in time” the claims that had already been made, for the duration of the agreement.

Particularly important is Article II of the OST: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” This article is arguably the most problematic in this regard. A colony is a territory controlled by an independent country, but considered part of that country for relations with other countries. A colony is a territory under the jurisdiction of an independent state that maintains a relationship with that state. Puerto Rico offers a contemporary example, as it holds the status of an unincorporated territory and serves as a dependent territory of the United States.

Colonization of Mars, by its inherent definition, would inherently contradict the stipulations of Article II of the OST. Even if the colony were to lack sovereignty, or if a country were to establish a Martian colony without asserting sovereignty or national jurisdiction, it would be difficult to argue that this would not meet the threshold of “use” or “occupation” per the treaty. The establishment of a permanent or semi-permanent human settlement on Martian soil would inevitably involve the utilization of land, resources, and potentially infrastructure development, thus creating a conflict with the Article’s text.

Theoretically, establishing and maintaining a colony does not necessarily imply the appropriation of a given territory by a single state — one can look at the issue of oil platforms on the high seas, which are not subject to appropriation according to the United Nations Convention on the Law of the Sea. It is only the activities of a state concerning such a colony that may raise objections, for instance, if a state were to declare a Martian colony as its extraterrestrial territory. 

While a colony may not constitute a direct claim of sovereignty by a nation-state, its presence might still be seen as an indirect exercise of control or jurisdiction, thus conflicting with the non-appropriation principle enshrined in the OST. The ambiguity in the phrase “by any other means” further complicates this interpretation, as colonization could encompass a wide range of activities beyond traditional state claims, potentially including private or corporate initiatives that result in sustained presence or control over specific areas on Mars. This raises significant legal questions regarding the compatibility of a Martian colony with the OST’s intent to preserve outer space as a domain free from national appropriation and exploitation.

According to Article VI of the OST, “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” States are further responsible for the activities of private entities under their jurisdiction, meaning that private colonization cannot serve as a viable solution.

This legal framework implies that even if a private company or entity attempts to establish a colony on Mars, the state under whose jurisdiction that entity operates would still be liable for ensuring that their activities adhere to international space law. Thus, a state’s obligations under the OST cannot be circumvented through privatization or the delegation of space activities to non-state actors. The responsibility extends to supervising and authorizing the activities of private actors to ensure that their actions do not amount to prohibited appropriation or occupation of outer space, thereby maintaining compliance with the non-appropriation principle of Article II.

It is additionally essential to refer to Article VIII: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth…” This Article outlines the principle of exercising jurisdiction over an object placed (constructed) on a celestial body, such as Mars. A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, while it is in outer space or on a celestial body, as well as ownership of objects that have been constructed on a celestial body. This may refer to constructions (objects, buildings) built on a celestial body that are significant for the colony.

Moreover, a State Party to the Treaty retains jurisdiction and control over the personnel aboard an object launched into outer space when it is in outer space or on a celestial body. This raises the issue of colonists and their legal status. The problem arises when colonists come from different countries with varying legal systems. It is undeniable that people living together, tasked with building the foundations of a Martian society, may, for instance, commit certain types of crimes or find themselves in civil law conflicts. Transporting such individuals back to the Earth solely for conducting a trial would be impossible. Given the differences in legal systems, it would be worth considering the establishment of a common Martian legal system and laying the groundwork for a jurisdictional apparatus that allows for the swift and efficient resolution of legal disputes among colonists. The considerations regarding the status of a colonist can be narrowed to three main points.

First, the regulation of the status of colonists based on Article V of the OST  involves adopting the definition of a colonist as an “envoy of mankind” (similar to astronauts), thereby obligating colonists from different State Parties to provide all possible assistance to colonists from other State Parties.

Second, developing a separate regulation of the status of colonists, by creating an individual legal definition would allow for the introduction of a universally accepted law intended to apply on Mars, effectively making the colonists “citizens of Mars,” subject to those planetary laws. However, this would require the creation of a quasi-state apparatus, entirely under the authority of the United Nations. This apparatus would be responsible for overseeing the administration of laws. Additionally, it would need to foster cooperation among various State Parties to ensure that the legal system is equitable and respects the rights of all colonists, regardless of their country of origin.

Third, the complete lack of regulation on this matter creates a significant legal gap, leaving important questions unresolved. This approach may be seen as appropriate, as it allows for flexibility in adapting legal frameworks to the evolving nature of Mars colonization. Defining the status of colonists too rigidly could be problematic, given the diversity of legal systems involved and the complex, shifting circumstances of space exploration. By leaving a legal gap, the international community can avoid prematurely imposing restrictive laws that might not align with future developments. Additionally, it helps preserve the sovereignty of individual states and protects against overly centralized definitions that could lead to conflicts. This open-ended approach allows for a gradual and more inclusive development of a legal system as the colonization process progresses.

The OST’s limitations also arise from Article IX, which underscores the obligations of states in the exploration and use of outer space. According to Article IX, states must adhere to the principles of cooperation and mutual assistance, ensuring that their activities are carried out with “due regard to the corresponding interests of all other States Parties to the Treaty.” This provision implies a duty to consider the interests and rights of other states during space activities, including on celestial bodies like Mars.

Moreover, Article IX emphasizes the necessity of avoiding “harmful contamination” of outer space and preventing “adverse changes in the environment of the Earth” that could result from the introduction of extraterrestrial matter. States are thus required to take measures to avoid activities that might harm the space environment or impact the Earth’s ecosystem. This provision suggests that any activity, including colonization or extensive use of Martian resources, must be conducted in a manner that does not jeopardize the integrity of the Martian environment or lead to negative consequences for the Earth.

Additionally, this provision mandates that states engage in “appropriate international consultations” if they believe that their activities, or those of their nationals, could cause “potentially harmful interference” with the activities of other states. This requirement further complicates the prospect of private or unilateral colonization efforts, as it requires transparency and collaboration with the international community to avoid conflicts or interference with the peaceful exploration and use of outer space by other states. If a state believes that another state’s planned activities may be harmful, that state has the right to request consultations, ensuring that potentially disruptive actions are subject to international scrutiny before proceeding.

These obligations, derived from Article IX, reinforce the notion that space activities must prioritize cooperation, environmental preservation, and the interests of the broader international community, rendering unilateral or private colonization efforts legally and practically unrealistic under the framework of the OST.

IV. Conclusion

The conditions set forth in the OST effectively constrain any potential concept for colonizing Mars. These constraints arise from the existing framework of international law, which places significant limitations on the ways states and private entities can engage in activities on celestial bodies. While the current legal framework aims to preserve outer space as a common heritage of humanity, it also presents obstacles to the practical realization of long-term human colonization of Mars.

Given the rapid advances in space exploration and technology, a reassessment of the OST may be necessary. The changing landscape of space activities, especially the prospect of human colonization beyond the Earth, suggests that the current legal provisions may not adequately address the complexities and challenges posed by such endeavors. There is a growing need to develop new and tailored frameworks for regulating the colonization of Mars while maintaining the principles of international cooperation and equity that underpin the OST.

The international community should engage in a comprehensive dialogue to establish new legal and regulatory frameworks for the colonization of Mars. These frameworks should be designed with a focus on sustainable development, ensuring that the exploitation of Martian resources does not lead to environmental degradation, either on Mars or through potentially adverse impacts on Earth. Additionally, any revised legal regime should safeguard the human rights of the “colonizers,” ensuring that their well-being and safety are protected under international standards.

These regulations should aim to balance the interests of pioneering states with those of the broader international community. This includes ensuring equitable access to resources and opportunities in space, as well as protecting the Martian environment from harmful contamination. Such measures would require clear rules regarding resource extraction, waste management, and ecological preservation, as well as mechanisms for resolving disputes that may arise from conflicting claims over resources or territory on Mars.

The revision of the OST and the creation of new legal frameworks should aim to align with the core principles of the treaty, while adapting to the new realities of space exploration. By fostering international collaboration and focusing on the principles of sustainable and responsible space exploration, the global community can work towards a future where Mars colonization, if undertaken, is conducted in a manner that benefits all of humanity and respects the inherent value of the Martian environment. This process would ensure that any future settlements on Mars do not repeat the mistakes of past terrestrial colonization, but rather, set a new standard for ethical and sustainable human presence beyond the Earth.

 

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* Piotr Filip Parkita is a law student at the Faculty of Law and Administration of the University of Lodz (Poland).

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