ICC launches first-ever prosecution of former child soldier

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Each of us sin[s] in words, deeds, and thoughts.  Each of us sin[s] in different ways.  If I committed a crime through war, I am sorry.  In my mind, I thought war was the best thing.  Even up to now, I dream about war every night.  But if they don’t want to forgive me I leave it in their hands.

Dominic Ongwen spoke these words to his Ugandan Army interviewer before he was handed to The International Criminal Court (ICC) and transferred to The Hague in January.[1] At age ten, while on his way to school in Northern Uganda, Ongwen was abducted by rebel fighters with the Lord’s Resistance Army (LRA) to be trained as a child soldier.[2] By his own account, he was “taken into the bush” when he was fourteen years old, a term used in Uganda to refer to becoming a soldier after training.[3] By eighteen, Ongwen was a feared officer in the LRA, and by his late twenties he was one of warlord Joseph Kony’s top associates.[4] During his rise to power, he was valued as a merciless fighter and fearless leader.[5] Ongwen is alleged to have led numerous raiding parties, terrorizing civilians and abducting children to be sex slaves and soldiers.[6] In 2005, the ICC issued an indictment against him and other Ugandan warlords, including Kony.[7] Ongwen is the first former child soldier to be prosecuted by the ICC, and is also the youngest Ugandan to be indicted.[8] Unlike Kony and his co-conspirators, Ongwen was a child when he became a soldier, meaning that most of the alleged crimes were committed before he turned eighteen.[9] This move by the ICC has been widely criticized because of the nature of Ongwen’s upbringing, and ICC Judge Ekaterina Trendafilova cited differences between Ongwen and co-defendants in February 2015 in deciding to sever his prosecution from theirs.[10] Many from Northern Uganda point out that the ICC is prosecuting someone who, at least initially, had no choice but to commit atrocities.[11]

It is fairly clear that Ongwen personally believed he was eligible for a pardon when he delivered himself to the Ugandan forces, based on his role as a child soldier.[12] Thousands of former LRA soldiers, including those who willingly joined the LRA, have been given a full pardon under Uganda’s Amnesty Act of 2000.[13] The ICC indictment renders Ongwen ineligible for a full pardon, however.[14] Florence Ayot, Ongwen’s wife and former child sex slave, has expressed her disapproval with Ongwen’s treatment by the ICC and current Ugandan President Yoweri Museveni, who handed him over, saying that “[t]he president is supposed to be like a father to Dominic Ongwen . . . .  It’s not fair for a father to try his son.”[15] The ICC, however, is going forward with the indictment, despite its own conflicting stance.[16] While he will not be charged for any crimes stemming from his actions while under the age of eighteen, he still faces responsibility for crimes committed in northern Uganda in 2004, which he committed as an adult.[17]

The charges against Ongwen include three counts of crimes against humanity: murder, enslavement, and “inhumane acts of inflicting serious bodily injury and suffering”, and four counts of war crimes: murder, “cruel treatment of civilians”, “intentionally directing an attack against a civilian population”, and pillaging)”[18] Crimes against humanity are those committed in the context of systematic attacks against a civilian population.[19] An offender may not know every intimate detail of the systematic attacks or even the precise details of the overarching plan that led to the attack.[20] The perpetrator must only have committed the crimes knowing that they were part of the larger attack against civilians.[21] In Ongwen’s case, he murdered civilians, exercised purported ownership over civilians, and caused “serious bodily injury or suffering” while leading the LRA in Northern Uganda.[22] Similarly, war crimes charges do not imply that Ongwen knew the LRA leadership’s plan for the war, only that he committed the particular acts with knowledge that they “took place in the context of and [were] associated with” that war.[23]

In a statement following Ongwen’s transfer to The Hague, the ICC Special Prosecutor addressed Ongwen’s culpability for LRA crimes, stating “[m]y investigation demonstrates that Dominic Ongwen served as a high ranking commander within the LRA and that he is amongst those who bear the greatest responsibility for crimes within the jurisdiction of the ICC.”[24] The ICC’s custody of Ongwen “sends a firm and unequivocal message that no matter how long it will take, the Office of the Prosecutor will not stop until the perpetrators of the most serious crimes of concern to the international community are prosecuted and face justice for their heinous crimes.”[25] Given this language, it seems clear that Ongwen will be prosecuted aggressively. It isn’t fully clear whether he will see any leniency in his hearings, though it is likely that his status as a former child soldier will be made known trial. Ongwen’s confirmation-of-charges hearing is scheduled for January 2016; it was initially expected to be held in Uganda but has since been relocated to the Hague.[26]


[1] Andrew Green, To Forgive a Warlord, Foreign Pol’y (Feb. 6, 2015), http://foreignpolicy.com/2015/02/06/ongwen-uganda-icc-joseph-kony-international-justice [http://perma.cc/VT3Q-P7A4].

[2] Gregory Warner, A Former Child Soldier Will Stand Trial in The Hague For War Crimes, NPR (Jan. 23, 2015, 4:35 pm)http://www.npr.org/2015/01/23/379419891/international-criminal-court-to-try-former-child-soldier-with-war-crimes [http://perma.cc/T9ZZ-UUCS].

[3] LRA commander Dominic Ongwen appears before ICC in The Hague, BBC News (Jan. 26, 2015), http://www.bbc.com/news/world-africa-30976818 [http://perma.cc/MXR6-HARS] [hereinafter Ongwen appears before ICC].

[4] Prosecutor v. Ongwen, Case No. ICC-02/04-01/15 (Oct. 28, 2015) (case information sheet), http://www.icc-cpi.int/iccdocs/PIDS/publications/OngwenEng.pdf [http://perma.cc/D4P7-6EXZ] (alleging various war crimes); see also Farouk Chothia, Profile: Dominic Ongwen of Uganda's LRA, BBC News (Jan. 26, 2015), http://www.bbc.com/news/world-africa-30709581 [http://perma.cc/ZVS2-MQQR].

[5] Chothia, supra note 4.

[6] Chothia, supra note 4; see also Prosecutor v. Ongwen (case information sheet), supra note 4.

[7] Chothia, supra note 4.

[8] Id.

[9] Warner, supra note 2.

[10] Warner, supra note 2; see also Prosecutor v. Ongwen, Decision Severing the Case Against Dominic Ongwen [from the long-running case against Kony et al] (Feb. 6, 2015), available at https://www.icc-cpi.int/iccdocs/doc/doc1915157.pdf.

[11] Warner, supra note 2.

[12] Green, supra note 1.

[13] Id.; see Amnesty Act of 2000 §§ 3–4 (Uganda), available at https://www.icrc.org/applic/ihl/ihl-nat.nsf/0/7d2430f8f3cc16b6c125767e00493668/$FILE/Ugandan+Amnesty+Act+2000.pdf [https://perma.cc/AK59-5S3E].

[14] Warner, supra note 2.

[15] Id.

[16] Ongwen appears before ICC, supra note 3 (“His past is likely to present some ethical and legal dilemmas for the ICC, a court which is fiercely outspoken on the use and abuse of child soldiers.”).

[17] Prosecutor v. Ongwen (case information sheet), supra note 4; see also Q&A on LRA Commander Dominic Ongwen and the ICC, Human Rights Watch (Jan. 9, 2015), https://www.hrw.org/news/2015/01/09/qa-lra-commander-dominic-ongwen-and-icc [http://perma.cc/M43E-5H2D].

[18] Id.

[19] Elements of Crimes, Int’l Crim. Ct. (2011), https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf [http://perma.cc/7WGX-YNUV].

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Press Release, Int’l Crim. Ct., Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, following the surrender and transfer of top LRA Commander Dominic Ongwen (Jan. 24, 2015), available at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-stat-21-01-2015.aspx [http://perma.cc/9NJN-V8QX].

[25] Id.

[26] ICC Weekly Update #249INT’L CRIM. CT(July 7, 2015), http://www.icc-cpi.int/iccdocs/PIDS/wu/ED249_ENG.pdf [http://perma.cc/DL9B-GQPN]; Press Release, International Criminal Court, Ongwen case: the confirmation of charges hearing to be held at the seat of the ICC in the Hague (Oct. 28, 2015), available at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1162.aspx [http://perma.cc/R8TT-MMZN] (describing the procedural limitations and benefits to holding hearing in Uganda, chiefly security and the value of having hearings accessible to victims and communities affected).


Posted by Samantha L. Heggum on Tue. November 17, 2015 7:15 PM
Categories: Africa, Independence movements, International Criminal Court, International Human Rights, Law of War, Uganda

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