The trial of Dominic Ongwen before the International Criminal Court (ICC) in The Hague is like none other springing from the killing fields of the Great Lakes of Africa. These include the prosecution of the first person ever to be convicted by the ICC, Thomas Lubanga. He was accused of mass human rights violations as a rebel leader in the Democratic Republic of Congo. Also ongoing is the trial of Bosco Ntaganda, another Congolese.
Ongwen is a former commander of the Lord’s Resistance Army (LRA), a particularly brutal rebel group in Uganda. Its ruthless campaigns in Uganda and in neighbouring countries since the late 1980s encompassed murder, rape and torture. The organisation also recruited child soldiers and engaged in sexual slavery, including forcibly abducting young girls to act as “bush wives” for LRA fighters.
The LRA started as a rebellion in northern Uganda against Yoweri Museveni who overthrew Tito Okello, a northerner, to become president in 1986. Nearly two million people were displaced at the height of the insurgency and more than 10,000 killed in rural massacres.
Led by Joseph Kony, the highly mobile group later moved to South Sudan, eastern Congo and as far afield as Central African Republic. A UNICEF report estimated that tens of thousands of children and youth had been abducted by the LRA between 1986 and 2005.
Ongwen, who is in his early 40s, is charged with the greatest number of crimes ever faced by an accused person before the international court. In March, the court confirmed 70 charges of crimes against humanity and war crimes against him.
Aside from the scale of the case, one aspect that makes it unique is that Ongwen himself is a former child soldier. He was forcibly abducted by the LRA as a child walking home from school. Some accounts suggest he was so small and frail at the time of his abduction that he had to be carried by other recruits.
But he went on to climb through the ranks of the LRA command. The ICC case concerns crimes allegedly committed by Ongwen himself, and by his subordinates, from 2002-2005.
Past victimisation is no excuse
In her opening statement in the Ongwen trial the ICC Prosecutor, Fatou Bensouda, noted that
The evidence of many of the child victims in this case could be, in other circumstances, the story of the accused himself… But having suffered victimisation in the past is not a justification, nor an excuse to victimise others.
The shift of narrative here from the court’s first judgment in Lubanga is notable. In that case, Lubanga was tried and convicted of the crime of recruiting and using child soldiers. The court focused on the trauma suffered by former child soldiers and the lasting impact of that suffering.
By contrast, in Ongwen, the prosecutor emphasised
the choice that he made; the choice to embrace the murderous violence used by the LRA and to make it the hallmark of operations carried out by his soldiers.
Some authors have argued that Ongwen’s status as a former victim should act as a partial defence to his later actions or should, at a minimum, be treated as a mitigating factor in sentencing if he is convicted. But this would assume that victims are devoid of choice over their actions by reason of their victimhood. The picture is, of course, much more nuanced than that, as Alcinda Honwana has pointed out in her pioneering study of child soldiers.
Criminal law is concerned with an individual’s actions and whether they possessed the intent to commit criminal acts, and not the factors that may have led them to commit the actions. This is why in domestic criminal trials perpetrators of sexual abuse who are themselves former victims of such abuse are still found culpable for their actions.
Criminal responsibility is a question of answerability; it declares certain actions to be wrong and calls those who are accused of having perpetrated such wrongs to answer for their actions.
Dismissing the sympathy plea
While the prosecutor will no doubt have a challenge in overcoming the victim-perpetrator narrative that is likely to cast a shadow over the case, it seems unlikely that Ongwen’s status as a former child soldier can be successfully raised as a defence to the charges against him.
There is a defence of duress included in the ICC Statute. But this is limited to situations of imminent threat where the harm caused is not greater than the harm avoided. It would be difficult for Ongwen to argue that his alleged orders as an adult were made under duress.
Ultimately, the prosecutor was right in pointing out in her opening statement that the court will not decide on whether Ongwen deserves sympathy,
but whether he is guilty of the serious crimes committed as an adult, with which he stands charged.