Brought Up to Be a War Criminal

by Kjersti Lohne, Researcher, PluriCourts, and Anette Bringedal Houge, PhD Candidate, Department of Criminology and Sociology of Law, University of Oslo

Dominic Ongwen makes first appearance before the International Criminal Court. Photo: International Criminal Court

Dominic Ongwen has been charged with committing the same crimes that were committed against him as a child soldier in the Lord’s Resistance Army (LRA). To what extent is Ongwen responsible for his actions as an adult, given that he himself was abducted as a 10-year-old child? The International Criminal Court (ICC) in The Hague is to determine the answer to this question.

The International Criminal Court has recently confirmed 70 charges against Dominic Ongwen for war crimes and crimes against humanity. Ongwen is accused of committing these crimes as a member of Joseph Kony’s Lord’s Resistance Army.

During over 20 years of conflict with the Ugandan government, the LRA has recruited huge numbers of child soldiers, practised enslavement, and committed murders, rapes and other atrocities against civilian populations in northern Uganda, Southern Sudan, the Central African Republic, and the Democratic Republic of Congo. Ongwen has been charged with individual responsibility for crimes including attacks against the civilian population, murder, rape, sexual slavery, forced pregnancy, forced marriage, torture and other inhumane acts, pillaging, the use of child soldiers, enslavement and persecution. Ongwen is the first of five accused LRA commanders to appear before the ICC.

The Ongwen case

The case against Ongwen will not be a straightforward affair. His prosecution before the ICC is considered controversial, including by lawyers working within the international criminal justice system. The reasons for the controversy do not primarily concern the extent of Ongwen’s involvement in the atrocities for which he is charged. There is reliable and extensive documentation of the LRA’s brutality, and the same can be said of the atrocities committed by Ongwen, given that he was one of Joseph Kony’s closest high-ranking associates.

Ongwen himself, however, was abducted by the LRA as a 10-year-old. For eight of his formative years, he was a child soldier. Some of the LRA’s unwilling recruits manage to escape, while others choose to keep a low profile. Yet others are killed either by their “own” or by Ugandan government forces. Some are taken into the ranks of the Ugandan army. Faced with the choice of killing or risking being killed, Ongwen chose the former option. He was not alone in doing so.

But Ongwen distinguished himself. He rose through the ranks in accordance with the numbers of new child soldiers he brought to the LRA. He gained continually more responsibility, more “wives” and new children. As an adult, Ongwen became one of Kony’s closest high-ranking associates, in itself a position that carried significant risks. One of Ongwen and Kony’s co-defendants is believed to have been executed by Kony in 2007 after being suspected by Kony of treachery.

As a result of his central position in the LRA, Ongwen is today accused of the same crimes as those of which he was a victim. It is worth noting that Ongwen’s own status during his  initial years in the LRA, according to the ICC’s articles, was that of victim. These articles prohibit the prosecution of people aged under 18. Regardless of what atrocities Ongwen ordered or participated in before this time, the ICC will not hold him responsible. No such protection exists with regard to atrocities perpetrated after he reached 18 years of age. An atrocity committed the day before the perpetrator’s 18th birthday is part of the narrative attached to his status as a child soldier, but the same act committed the very next day will make him or her a war criminal.

As both victim and perpetrator of the LRA’s violent regime, Ongwen’s case demonstrates the complex dynamics of war. Where should we assign responsibility, and who bears most responsibility for the suffering imposed on victims? These are the questions with which the ICC concerns itself, but that are made more complex in the case against Ongwen: What real options did he have? How much of the  responsibility for the conflict in northern Uganda rests on his shoulders?

Those most responsible

The ICC’s mandate is to prosecute those most responsible for the most serious atrocities. But how does one assess responsibility in such situations?

When the victim and the perpetrator are one and the same, the labels and categories assigned by criminal law are often too simplified. Ongwen’s case is not unique, not in Uganda nor in other complex humanitarian conflicts.

Cases decided by the ICC create judicial precedents – both for the ICC and nationally in the states parties to the ICC’s founding convention. As in the case of national criminal law, international criminal law is also justified on the basis of the supposed deterrent effect of punishment: no one should be able to recruit child soldiers without the risk of being held criminally responsible.

But given that the ICC is intervening in ongoing conflicts, the deterrent effect of punishment takes on a very different significance. The ICC’s prosecutions relating to the conflict in Uganda have often been criticized for prolonging the conflict: why should the LRA’s soldiers hand themselves in and put down their arms if they will be sent to The Hague? If Ongwen is found guilty, this view will become even more pertinent. Does the ICC itself have a responsibility to take into account the dynamics of ongoing conflicts?

In northern Uganda, parts of the local population have preferred an amnesty for returning LRA commanders and soldiers, because they are their own abducted brothers and sisters, but also because they consider this to be the most effective solution to a long-lasting and expensive conflict between the LRA and the Ugandan government. This highlights a continually recurring dilemma: is the administration of criminal justice more important than peace, and is it possible to have one without the other? What would be the result, however, if the ICC were to find Ongwen not guilty? Not least for the responsibility of international society to deal with the type of complex perpetrator represented by Ongwen?

Order in chaos

The international criminal justice system creates order in chaos. Following criminal law’s individualization of guilt, part of the context is necessarily ignored, to secure that it is not war that kills, but war criminals. In order to achieve this, people and actions are divided into categories of victims and perpetrators, innocent and guilty, good and bad, right and wrong. People who are brought up to be war criminals fundamentally challenge these categories, and the criminal order they represent.

 

This blog post was originally published at the PRIO blog on 11 May 2016.

Tags: Criminal law By Kersti Lohne and Anette Bringedal Houge
Published May 12, 2016 9:40 AM - Last modified Nov. 30, 2016 1:53 PM
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