Author: Anushmita Dutta
I Year | Dharmashastra National Law University, Jabalpur
“When a man is denied the right to live the life he believes in, he has no choice but to become an outlaw”
~ Nelson Mandela
The fore-mentioned quote beautifully depicts the case of child soldiers. The child soldiers face unspeakable atrocities and their future generally results in dark roads. Dominic Ongwen, the latest person convicted by the International Criminal Court (ICC henceforth) for war crimes and crimes against humanity, was one such child soldier.
In this light, the author shall analyze the case of Dominic Ongwen. In the case before the ICC, the question of the validity of victimhood against his culpability arose. The author shall discuss if the ICC could, or should, consider his victimhood as a valid factor to erode or mitigate his culpability for international crimes.
In the year 1988, the Lord’s Resistance Army (hereinafter referred to as the LRA) of Uganda kidnapped a little boy on his way to school with his friends. They mercilessly forced him to spend the rest of his life as a ruthless soldier of the militia. This little boy, Dominic Ongwen, further became LRA’s Brigadier General. Above all, he was in charge of planning and executing relentless assaults against the civilians. In the case of Prosecutor v Ongwen at the ICC, after a proper trial that started in 2016, he was sentenced to 25 years behind the bars. The defendant was found guilty of a total of 61 crimes – both crimes against humanity and war crimes.
This was the very first time when the offences of forced marriage and forced pregnancy were treated as separate Sexual and Gender-Based Crimes (SGBC) by the ICC against treating them simply as sexual slavery under Article 7(1)(g) and Article 8(2)(b)(xxii). The case raised many jurisprudential questions and aspects. One of these was the criminal liability of the accused as a child soldier, which the bench left unconsidered.
The Contention of Dominic Ongwen before ICC:
The prosecution accused Ongwen of the same atrocities, of which he was a victim as a former child soldier. The militia forcefully trains the children to become ruthless soldiers. Moreover, they are forced to participate in armed conflicts. Due to this, a mindset of violence is inculcated in them. They remain uneducated and face severe traumas of the war throughout their lives. Even the ICC in one of its cases against Thomas Lubanga Dyilo of Congo, maintained that there is a perpetual “environment of terror” that abducted child soldiers are subjected to. Yet, the defence of victimhood was not considered a valid defence against his culpability.
Hence, the purpose of this article is to analyse the doctrinal facet of Ongwen’s case. The conflict between Ongwen’s culpability as imposed by international criminal law and protection as a former child soldier under international human rights regime.
Defence of Severe Environmental Deprivation:
It is pertinent that not all socially deprived people are offenders. Not all affluent people are innocent. According to most sociological theories of deviance, criminal behaviour is a direct result of deprivation or rotten social background. Is the background of the deprivation of the offender a valid defence against criminal responsibility?
By the principle of actus reus non facit reum nisi mens sit rea, culpability requires both a guilty act and a guilty mind. For consideration of deprived background as a valid defence, the Court would require reasonable proof that the social background of the accused negates, completely or partially, the mens rea, i.e., nonexculpatory defence.
Even though the courts do not explicitly allow such a defence, some judges have hinted at the rotten social background (hereinafter RSB) as a valid defence. For example, in the case of United States v. Alexander, Judge Bazelon for the very first time hinted at extreme poverty giving rise to RSB as a defence. But the defendant was convicted on grounds that his deprived background did not lead to insanity as envisaged under Article 31 of the Rome Statute. Thus, there was the presence and acceptance of mens rea.
Even though Ongwen’s case deals with tons of greater responsibility than that of Alexander’s case, yet both the cases when compared bring out the similarity. So even though Ongwen faced merciless torture from a tender age, his background does not render him legally insane or unable to contemplate the consequences of his mass perpetrations, hence, vitiating the possibility of any defence owing to his mentality resulting from his background.
Dominic Ongwen’s Protection as a Former Victim:
‘Actus me incito factus non est meus actus’ is a basic tenet of criminal justice which means ‘an act done by me against my will is not my act’. For this very reason, involuntary actions as a result of restraint are excluded from the ambit of Rome Statute. A child soldier’s case is also similar. A child soldier’s act is involuntary.
International Humanitarian Law showers many protections upon such child soldiers starting with the prohibition of recruitment of any child below the age of 15 in any armed forces. This prohibition also finds place in the Child Rights Convention and is considered the worst form of child labour by the International Labour Organisation (ILO).
This especially proves that Ongwen was a victim of not only abduction as well as torture, but also illegal child labour. In addition to the fact that the proceedings in ICC confirmed that the LRA possessed the capability to commit mass atrocities upon the civilians of northern Uganda, it also reasserts the victimhood of Ongwen and that he deserved protection under humanitarian law.
International law regards minors in armed conflict as victims. But do these protections and considerations under international law sideline his culpability? And is it true justice to treat a child soldier as a perpetrator as soon as he or she attains majority?
Opinion On The Case:
There appears to be a contradiction in safeguarding a child’s rights only to have him punished when he reaches adulthood. Even though the Court in Lubanga’s case maintained that once a person is a child soldier, he always remains so in body and mind, the Court took a varied stance in Ongwen’s case, and punished his role as an abductor and not as an abductee.
The pertinent question to consider here is this: should ICC have considered that his role as an abductee might have had a direct play with mens rea in his role as an abductor? The answer is yes. It is sheer injustice on part of the Bench to have disregarded this instance in deciding the defendant’s culpability because the Rome Statute itself mentions exculpation of victims of cognitive deprivation.
Thus, Dominic Ongwen’s cognitive deprivation as a result of him being a former abductee by the LRA is a question of fact and not a question of law per se, which proved to be on the prosecution’s side. The reason for this was evidentiary standards. However, it is a herculean task on the part of the Court to establish where victimhood ends and culpability begins. In short, it is preposterous to simply assume that victimhood and culpability cannot coexist together.
 Andrew Green, To Forgive A Warlord, FOREIGN POLICY (July 6, 2021, 3:54 p.m.), URL: https://foreignpolicy.com/2015/02/06/ongwen-uganda-icc-joseph-kony-international-justice/
 The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15 (2021).
 Raphael Lorenzo Aguiling 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 (2018).
 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-3173 (2015).
 Richard Delgado, Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation, 3(1) LAW & INEQ. 9 (1985) URL: https://scholarship.law.umn.edu/lawineq/vol3/iss1/2
 United States v. Alexander , 471 F.2d 923, 957-65 (1973).
 Enriquez v. Sandiganbayan, G.R. Nos. 120744-46, 689 Phil. Rep. 75 (2012). URL: http://sc.judiciary. gov.plvjurisprudence/2012/june2012/120744-46.htm#_ftnl30.
 United Nations Convention on the Rights of the Child art. 38, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990).
 Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour art. 3, opened for signature June 17, 1999, 2133 U.N.T.S. 161 (entered into force Nov. 19, 2000).
 Supra 2.
 Off. Special Representative and Secretary Gen., Child Recruitment and Use, (July 7, 2021, 11:36 a.m.), https://childrenandarmedconflict.un.org/ effects-of-conflict/six-grave-violations/child-soldiers/
 Supra 6.
Editor: Anusha Jabi