Ongwen blog symposium: Precedent on the Prosecution of Juvenile Offenders for International Crimes

About the author(s):

Milena Sterio is The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law at the Cleveland-Marshall College of Law and Managing Director at the Public International Law and Policy Group. Milena specializes in international law, human rights, and international criminal law, and is the author of numerous law review articles and seven books. Her latest book, Syrian Conflict’s Impact on International Law, was published by Cambridge University Press in 2020. Milena currently serves as Co-Chair of the Transitional Justice and Rule of Law Interest Group at the American Society of International Law, and Chair of the National Security Law Section at the American Association of Law Schools.

On Feb. 4, 2021, the International Criminal Court (ICC)  convicted Dominic Ongwen of 61 counts of crimes against humanity and war crimes.  Ongwen was a Lord’s Resistance Army (LRA) member whose culpability appears doubtless – he had been accused of numerous atrocities, including brutal acts of sexual violence, and I have seen no commentary questioning the validity of ICC’s conviction.  What appears to be more questionable is the degree to which his sentence should be mitigated, in light of the fact that Ongwen had been abducted by the LRA and was a child soldier.  In fact, the ICC will hold a sentencing hearing in Ongwen’s case this week, at which his counsel will be able to present mitigating evidence and argue in favor of a lower sentence.  This post will discuss whether such mitigation is warranted, in light of relevant human rights standards and existing case law precedent.  This post will conclude that the duality of treating child soldiers as either perpetrators or victims is unwarranted, that a more nuanced approach is necessary, and that while Ongwen’s sentence should be mitigated, his individual criminal responsibility must be acknowledged and an appropriate punishment imposed. 

International Human Rights Standards on the Treatment of Juvenile Offenders

International human rights law dictates that juvenile offenders need to be treated distinctly from their adult counterparts.  The International Covenant for Civil and Political Rights (ICCPR) provides in Article 14(4) that any judicial proceedings applies to juveniles should take into account their age and “the desirability of promoting their rehabilitation.”  The Convention on the Rights of the Child similarly holds in Article 23 that rehabilitation should be a primary goal of punishment regarding a juvenile offender.  In addition, the CRC adopts, in Article 3, the “best interests of the child” standard in court proceedings where the suspect is a juvenile.  Moreover, other international law documents embrace rehabilitation as the leading goal of punishment practices regarding juveniles.  The United Nations Guidelines for the Protection of Juvenile Delinquency (“Riyadh Guidelines”) emphasize that states should adopt policies and programs to ensure that children become productive members of their respective societies.  The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) provide that a strictly punitive approach is not appropriate for juvenile offenders; instead, the Beijing Rules emphasize that any sentence imposed should “always be in proportion .. to the circumstances and the needs of the juvenile as well as to the needs of the society” and that “[t]he well-being of the juvenile shall be the guiding factor in the consideration of her or his case.”  In sum, international law seems consistent in its conclusion that juvenile offenders can be punished, but that their punishment should take into account their young age, and should incorporate rehabilitation as its primary goal.  While it may be argued that these standards are inapplicable to Ongwen who is no longer a juvenile, it seems appropriate to at least acknowledge and consider these standards, in light of the fact that Ongwen was a juvenile when conscripted into the LRA, and that he began to engage in criminal activity as a juvenile. 

Precedent on the Prosecution of Juvenile Offenders for International Crimes

Relevant precedent regarding child soldiers that may be important for the ICC in its sentencing approach in Ongwen includes the Special Court for Sierra Leone’s approach  toward the possibility of prosecution of child soldiers, as well as national-level prosecutions of juvenile pirates.

Although the Statute of the Special Court for Sierra Leone allowed the prosecution of children between the ages of fifteen and eighteen, the Court adopted an official policy to never actually prosecute any juveniles.  In addition, should the Court have decided to prosecute juveniles, the Court’s Statute precluded imprisonment of juveniles as punishment, authorized the use of alternative punishments, and required that the Prosecutor ensure that the rehabilitation of child soldiers not be placed at risk through prosecution.  It is worth noting that then-U.N. Secretary-General, Kofi Annan, argued in favor of establishing a special juvenile chamber within the Special Court, to prosecute offenders between the ages of fifteen and eighteen, as well as a referral of some juvenile cases to a Truth and Reconciliation Commission for Sierra Leone.  Annan’s proposal would have allowed for the prosecution of some juvenile offenders in a special jurisdiction, which would have been mandated to take into account the offenders’ young age and to promote rehabilitation when imposing punishment.  Annan’s proposal, although never adopted, was supported by an influential scholar, Professor Diane Marie Amann (currently ICC Prosecutor’s Special Advisor on Children’s Issues).  Professor Amann had argued in favor of prosecutions of juveniles suspected of most awful crimes as a tool of both accountability and rehabilitation, and ultimately a vehicle of reconciliation.  Thus, if one were to draw a conclusion from the Special Court’s experience, it would be that it may be important to prosecute juvenile offenders accused of the most heinous crimes, but that such prosecutions should take into consideration the offenders’ age and the necessity of their rehabilitation. 

Juvenile offenders have also been prosecuted in national courts when accused of piracy.  Although the crime of piracy is different from crimes against humanity and/or war crimes which other child soldiers, such as Ongwen, have been accused of, piracy is an international and violent crime, and important parallels can be drawn between the treatment of child pirates and child soldiers.  In a noteworthy German prosecution of juvenile piracy suspects, the court handed down light sentences of two years to three offenders; according to newspaper accounts, these juvenile defendants had been provided with various educational and rehabilitative services throughout the criminal process.  In a Spanish prosecution of a piracy defendant who had claimed juvenile status, the court handed down a lengthy sentence of 436 years in prison – but the court rejected the defendant’s juvenile status and determined that the defendant was in fact over the age of eighteen.  In an Italian prosecution, the court sentenced four juvenile pirates to eight years in prison while sentencing their adult counterparts to sixteen- and nineteen-year prison terms.  In a French prosecution, the court sentenced a juvenile pirate to a four-year prison term, while reserving longer 8-year prison terms for adult pirates who had participated in the same piracy attack.  A Malaysian court sentenced three juvenile piracy defendants to eight years in prison, while imposing a longer sentence of ten years on adult pirates.  Finally, the courts in The Seychelles, a nation which has prosecuted a significant number of suspected piracy, initially refused to differentiate between juvenile and adult pirates in sentencing practices.  In subsequent cases, however, Seychellois judges handed down significantly lighter sentences to juvenile pirates, in light of their young age.  Thus, it can be concluded that most national jurisdictions have prosecuted juvenile pirates, but have imposed significantly shorter sentences and have presumably taken into account the defendant’s young age when determining the appropriate (lesser) punishment.  If one were to conclude that Ongwen was a child soldier, and that this fact is relevant today, despite the fact that Ongwen was prosecuted as an adult and only for crimes which he committed as an adult, then relevant case law precedent discussed above would dictate that Ongwen can be punished, but that his sentence would need to be shortened – as compared to the sentence that could be handed down to a similarly situated adult defendant. 

Is Ongwen a Child Soldier?

Accepting or rejecting Ongwen’s status as a child soldier as determinative of his punishment seems overly simplistic.  Ongwen was undoubtedly a child soldier at some point; he was abducted by the LRA at a young age, traumatized and indoctrinated into this brutal movement.  Ongwen was thus a victim.  Yet, Ongwen also committed atrocities.  As the trial record demonstrates, seven women testified that Ongwen forcibly married them, raped them, impregnated them and sexually enslaved them.  The account of these victims is harrowing and convincingly demonstrates Ongwen’s culpability in atrocious crimes of sexual violence.  Ongwen was thus a perpetrator.  Mark Drumbl, one of the most influential authors on the issue of child soldiers, has convincingly argued for nuance: that child soldiers should not all be treated as passive victims, but that instead, courts should differentiate among individual child soldiers and should impose criminal responsibility on those who have committed particularly heinous acts – such as Ongwen.  Drumbl’s view is supported by Amann, who has, as mentioned above, argued in favor of accountability for some child soldiers.  This nuanced view seems particularly appropriate in the case of Dominic Ongwen, who was a child soldier but who nonetheless committed numerous atrocities.  The imposition of criminal responsibility, in the form of an actual prison sentence, is highly warranted in his case.  However, because of Ongwen’s status as a child soldier, his prison sentence should be mitigated.  Ongwen should thus not be sentenced to the same length of imprisonment as another defendant who had not been a child soldier.  In addition, Ongwen’s sentence should incorporate restorative and rehabilitative practices, of the kind typically afforded to juvenile offenders.  This approach would incorporate the duality of Ongwen’s status, as both child soldier and criminal, victim and perpetrator, someone one feels empathy and horror for at the same time.  In conclusion, Dominic Ongwen should be sentenced to a prison term which acknowledges his criminal responsibility in the commission of numerous crimes against humanity and war crimes, while also taking into consideration his status as a child soldier and the desirability of his rehabilitation. 

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