*Zej Moczyd\u0142owski<\/p>\n
Regardless of one\u2019s 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\u2019s Lord\u2019s Resistance Army (LRA) is cause for sorrow. Meanwhile, those who focus on his dual status as not only a perpetrator\u2014but also a victim himself\u2014cannot deny the heinous, horrific, and sometimes unspeakable sexual and gender-based violence for which he was responsible.<\/p>\n
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]<\/sup><\/a> caused the trial to largely ignore Ongwen\u2019s 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\u2014where defenses pertaining to their history as child soldiers would not be considered\u2014and another prosecution for charges relating to all other aspects of warfare where defenses relating to their being a victim-perpetrator would be considered heavily.<\/p>\n 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<\/em> 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\u2019s 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\u2019s 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.<\/p>\n 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 \u201cits massacres, sexual-based violence, mutilations, pillage, and abductions.\u201d[2]<\/sup><\/a> Led by Joseph Kony, the group operated in Uganda and was directly in conflict with the Ugandan People\u2019s Defense Forces (UPDF), utilizing weapons varying from machetes and knives to machine guns and rocket-propelled grenades.[3]<\/sup><\/a><\/p>\n In its earlier years, the LRA received support from Sudan through weapons, training, and base locations.[4]<\/sup><\/a> While fighting its own conflict in Uganda, it also fought on behalf of Sudan against the Sudanese People\u2019s Liberation Army (SPLA).[5]<\/sup><\/a> 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<\/em>.[6]<\/sup><\/a><\/p>\n 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 \u201ckill, mutilate, and rape family members, schoolmates, neighbors and teachers.\u201d[7]<\/sup><\/a><\/p>\n While Dominic Ongwen\u2019s 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]<\/sup><\/a> During his abduction, \u201che 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.\u201d[9]<\/sup><\/a><\/p>\n The LRA abducted children because they were easier to indoctrinate and coerce through a system of physical and psychological abuse in which they \u201cwere forced to beat and\/or kill other abductees\u2026 witness severe violence being inflicted on others\u2026 and constantly [face] physical violence or death if they broke LRA rules.\u201d[10]<\/sup><\/a><\/p>\n After his abduction, Ongwen rose through the LRA ranks. By 2002\u2014the timeframe relevant to the charges\u2014he had risen to the rank of Major and was a battalion commander.[11]<\/sup><\/a> By the end of 2004, he was promoted to Colonel and then Brigadier General.[12]<\/sup><\/a> In this command capacity, and sometimes as a direct perpetrator, he engaged in the conduct for which he was charged.<\/p>\n 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]<\/sup><\/a><\/p>\n 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\u2014after confirming to CAR authorities that he intended to surrender to the Court willingly\u2014custody was transferred to the ICC.[14]<\/sup><\/a> Ongwen appeared before Pre-Trial Chamber II on January 25, 2015; his case was severed from Kony et al. on February 6, 2015.[15]<\/sup><\/a> Despite the severance of Ongwen\u2019s 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\u2019s atrocities. Ongwen attempted to distance himself from the LRA\u2019s leader, but, in the eyes of his attorneys, the Chamber ignored him and ultimately \u201c\u2026treated [Ongwen] as a scapegoat.\u201d[16]<\/sup><\/a><\/p>\n The Chamber issued a decision confirming charges against Ongwen on March 23, 2016,[17]<\/sup><\/a> charging him with war crimes and crimes against humanity against Ugandan civilians between July 1, 2002, and December 31, 2005.[18]<\/sup><\/a> \u201cThe numbers in the Ongwen case [were] staggering. Mr Ongwen was charged with 70 counts and 7 modes of liability\u2014the most of any single defendant at the ICC.\u201d[19]<\/sup><\/a> 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 \u201cother sexual and gender-based violence and conscription and use in hostilities of children under the age of fifteen.\u201d[20]<\/sup><\/a><\/p>\n Relating to the attacks against IDP camps, Ongwen was charged in Counts 1\u201349 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]<\/sup><\/a> These crimes, however, are not the focus of this essay and will not be expanded upon.<\/p>\n SGBV charges, as previously noted, were split into two categories. Counts 50\u201360 were related to acts committed by Ongwen himself (forced marriage, torture, rape, sexual slavery, enslavement, forced pregnancy, and outrages against personal dignity).[22]<\/sup><\/a> Counts 61\u201368 were related to SGBV committed by others under his command (forced marriage, torture, rape, sexual slavery, and enslavement).[23]<\/sup><\/a> [24]<\/sup><\/a> This case was the first time in ICC history that forced marriage and forced pregnancy were charged as separate crimes.[25]<\/sup><\/a><\/p>\n However, another novel issue brought up in Ongwen <\/em>was the fact that he is believed to be the only former child soldier to face ICC charges.[26]<\/sup><\/a> This led to his Defense arguing: \u201c[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.\u201d[27]<\/sup><\/a> Ongwen\u2019s childhood abduction resulted in this being the first ICC case to argue for excluding criminal responsibility under Article 31(1)(a) and (d).[28]<\/sup><\/a><\/p>\n 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 \u201cgun-to-the-head\u201d presentation of duress, Ongwen faced duress due to Kony\u2019s abuse of spiritualism to control those under his command and \u201cto cement his power over vulnerable child abductees.\u201d[29]<\/sup><\/a> In fact, the Charging Documents against Kony flatly stated that \u201cmembers of the LRA believed he had spiritual powers and was omniscient, beliefs which Kony perpetuated to exert control over the LRA.\u201d[30]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n Moving to Article 31(a), a person would not be criminally responsible if, at the time of their conduct, they suffered \u201cfrom a mental disease or defect that destroys that person\u2019s 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.\u201d[32]<\/sup><\/a><\/p>\n Regarding this defense, Ongwen\u2019s team introduced expert testimony. It concluded that Ongwen suffered from mental defect and disease due to \u201chis forced abduction by the LRA around 1987, continued through his years in the LRA…\u201d[33]<\/sup><\/a> They claimed these diseases destroyed \u201cOngwen\u2019s capacity to appreciate the unlawfulness or nature of his conduct and capacity to control his conduct to conform to the requirements of law.\u201d[34]<\/sup><\/a> The Defense argued that Ongwen\u2019s mental development ceased at the \u201ctime he was abducted, and this ensured that throughout the LRA, and even today, he has a \u2018child-like\u2019 mind which is incapable of forming the required mens rea<\/em> for crimes or determining right from wrong.\u201d[35]<\/sup><\/a> 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.<\/p>\n The Chamber, however, was not convinced that an Article 31(a) defense existed. It \u201cidentified six issues relating to the methodology used by [the Defense experts] in carrying out their assessments.\u201d[36]<\/sup><\/a> It stated that a \u201cnumber 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.\u201d[37]<\/sup><\/a><\/p>\n Specific issues relating to the Defense experts included their having blurred the line between their roles as forensic experts and treating physicians,[38]<\/sup><\/a> having failed \u201cto apply scientifically validated methods and tools for use as a basis for a forensic report,\u201d[39]<\/sup><\/a> having used \u201cdiagnostic labels from an outdated international classification system,\u201d[40]<\/sup><\/a> and \u201c[failing] to take into account other sources of information\u2026 readily available to them.\u201d[41]<\/sup><\/a><\/p>\n On February 4, 2021, the Trial Chamber found Ongwen guilty of 62 of the 70 Counts with which he was charged.[42]<\/sup><\/a> 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]<\/sup><\/a><\/p>\n During sentencing, the Chamber said that under normal circumstances, the gravity of the crimes committed by Ongwen would have resulted in life imprisonment.[44]<\/sup><\/a> However, it also noted that it was confronted \u201cwith 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.\u201d[45]<\/sup><\/a> Consequently, Ongwen was not sentenced to life imprisonment but twenty-five years.[46]<\/sup><\/a><\/p>\n Judge Raul C. Pangalangan filed a Partially Dissenting Opinion in the sentencing, believing a thirty-year sentence\u2014the maximum permissible under Article 78(3)\u2014was more appropriate.[47]<\/sup><\/a> He argued that not imposing a life sentence already took into account Ongwen\u2019s personal situation.[48]<\/sup><\/a><\/p>\n The Defense appealed both the conviction and sentencing. While appealing the conviction, in grounds for appeal 27, 29, 31\u201332, and 37\u201341, they \u201calleged errors in the Trial Chamber\u2019s rejection of the Defence Experts\u2019 evidence.\u201d[49]<\/sup><\/a> The Appeals Chamber decided that the Trial Chamber was correct in finding that it could not rely on the Defence Experts\u2019 evidence.[50]<\/sup><\/a> It also rejected all other grounds for appeal of the conviction and confirmed both the conviction[51]<\/sup><\/a> and sentencing decisions.[52]<\/sup><\/a><\/p>\n In February 2024, the Trial Court issued a Reparations Order, stating the \u201camount required to provide the reparations awarded in this case to the direct and indirect victims of the crimes\u2026 would be approximately \u20ac52,429,000 EUR.\u201d[53]<\/sup><\/a><\/p>\n The history of warfare is sadly rife with sexual and gender-based violence. Evidence, both historical and anthropological, \u201csuggests 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.\u201d[54]<\/sup><\/a><\/p>\n 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 \u201cmodern-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.\u201d[55]<\/sup><\/a> In short, \u201call 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.\u201d[56]<\/sup><\/a> 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.<\/p>\n 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 \u201cpunish the overwhelming number of sexual assault crimes that took place during World War II.\u201d[57]<\/sup><\/a> The IMT just included SGBV \u201cas evidence of the atrocities prosecuted during the trial.\u201d[58]<\/sup><\/a> Meanwhile, in the International Military Tribunal for the Far East (IMTFE), \u201crape crimes were expressly prosecuted… albeit to a limited extent and in conjunction with other crimes.\u201d[59]<\/sup><\/a>\u00a0 It is worth noting that \u201cthe inclusion of rape in the Tokyo indictments resulted in the first prosecution of the rampant sexual violence of World War II.\u201d[60]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> For example, at the IMT, \u201cFrench and Soviet prosecutors introduced, \u2018evidence of vile and tortuous rape, forced prostitution, forced sterilization, forced abortion, pornography, sexual mutilation, and sexual sadism.\u2019 Despite this evidence, no defendants were explicitly prosecuted or convicted for sexual crimes before the Nuremberg Tribunal.\u201d[62]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> She adds that the way both statutes classified rape as a crime against humanity was \u201cground-breaking.\u201d[64]<\/sup><\/a> Another author argued that in the ICTY and ICTR, \u201ccrimes committed exclusively or disproportionately against women and girls\u2026 secured reluctant but nonetheless ground-breaking redress.\u201d[65]<\/sup><\/a><\/p>\n Rape was first charged as a war crime and crime against humanity in the ICTY during Prosecutor v. Gagovic<\/em>.[66]<\/sup><\/a> There, \u201cthe prosecutor focused exclusively on sexual assault and qualified rape as a violation of the ICTY\u2019s grave breaches provision, a violation of the laws and customs of war, as well as a crime against humanity.\u201d[67]<\/sup><\/a> All three defendants were found guilty of war crimes and crimes against humanity of sexual violence.[68]<\/sup><\/a> Likewise, at the ICTR, Prosecutor v. Akayesu<\/em>,[69]<\/sup><\/a> ruled for the first time \u201cthat rape and other forms of sexual violence were used as instruments of genocide\u2026 and crimes against humanity.\u201d[70]<\/sup><\/a><\/p>\n Progress continued with the creation of the ICC. The Rome Statute enumerated multiple sexual crimes and demonstrated \u201can unprecedented degree of gender sensitivity in international criminal law.\u201d[71]<\/sup><\/a> 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]<\/sup><\/a> 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.<\/p>\n Yet, despite these promising steps, in its first twenty years, the only convictions for sexual crimes in the ICC[73]<\/sup><\/a> have arguably been Prosecutor v. Ntaganda<\/em>[74]<\/sup><\/a> and now Prosecutor v. Ongwen<\/em>.[75]<\/sup><\/a> One author argues that \u201calthough an international court\u2019s 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.\u201d[76]<\/sup><\/a><\/p>\n 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\u2019s term, the Office of the Prosecutor published a policy for investigating and prosecuting SGBV and made progress in charging them.[77]<\/sup><\/a> That publication was then expanded upon in December 2023 by Bensouda\u2019s successor, Karim Khan, whose Office published a new \u201cPolicy on Gender-Based Crimes.\u201d[78]<\/sup><\/a><\/p>\n Additionally, juxtaposing the Office of the Prosecutor\u2019s approach to the Lubanga<\/em> and Ongwen<\/em> cases demonstrates a changing attitude towards SGBV. In Lubanga<\/em>,[79]<\/sup><\/a> it was \u201calleged that female child soldiers in Lubanga\u2019s group were routinely raped and used as domestic servants by their commanders;\u201d it was then \u201cargued that this sexual abuse fell within one of the charges that Lubanga was facing, namely, \u2018using children to participate in hostilities.\u2019\u201c[80]<\/sup><\/a> However, the Prosecutor did not separately charge SGBV crimes, and a majority of the Trial Chamber \u201crefused to determine whether the rape of child soldiers by their commanders would satisfy that test.\u201d [81]<\/a> <\/sup>As will be noted in Part 5.1, Ongwen<\/em> marks a departure from that approach.<\/p>\n Many factors make children ideal targets for development into soldiers. They are \u201cphysically and psychologically [more] vulnerable than adults, making them easier\u201d to coerce and manipulate, and they are \u201cless demanding than adults,\u201d requiring less logistical support and pay.[82]<\/sup><\/a> Consequently, \u201cchildren are combatants in nearly three-quarters of the world\u2019s conflicts,\u201d posing an ethical and moral dilemma for the professional militaries they confront.[83]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> However, the term \u201cchild soldier\u201d 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:<\/p>\n 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]<\/sup><\/a><\/p><\/blockquote>\n 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 \u201ctake 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\u201d and \u201cshall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.\u201d[86]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> However, in a report prepared for the UN Security Council, Secretary-General Kofi Annan set the tone for future discussions by noting that \u201calthough 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.\u201d[88]<\/sup><\/a><\/p>\n 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]<\/sup><\/a> 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]<\/sup><\/a> In 2002, Uganda charged two former LRA child soldiers, but again, NGOs successfully stopped the proceedings.[91]<\/sup><\/a><\/p>\n These examples focus primarily on regional and localized violence by armed groups in Africa. However, the UN has also noted that \u201cowing 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.\u201d[92]<\/sup><\/a> The imprisonment of Omar Khadr\u2014a fifteen-year-old Al Qaida member charged as an enemy combatant by the U.S.2. General History<\/strong><\/h1>\n
2.1 The Lord\u2019s Resistance Army (LRA)<\/strong><\/h2>\n
2.2 Dominic Ongwen<\/strong><\/h2>\n
3. The Case<\/strong><\/h1>\n
4. Historical Context<\/strong><\/h1>\n
4.1 SGBV<\/strong><\/h2>\n
4.2 Child Soldiers and Related Mental Defect Claims<\/strong><\/h2>\n