About the author(s):
Dr. Brianne McGonigle Leyh is an Associate Professor with the Netherlands Institute of Human Rights (SIM) and Montaigne Centre on Rule of Law at Utrecht University’s School of Law. She is also a Senior Legal Advisor with the Public International Law & Policy Group. Her specializations include human rights law, transitional justice, victims’ rights, and documentation and accountability for serious human rights violations.
Wayne Miller is an LLM student in Public International Law at Utrecht University. His studies have focused on international human rights law, international criminal law, and international humanitarian law. Wayne currently works as a research assistant for Dr. Brianne McGonigle Leyh and previously interned with the Al Hassan Defence team at the International Criminal Court.
On 4 February 2021, Trial Chamber IX (TC IX) of the International Criminal Court (ICC) convicted Dominic Ongwen for 61 of the 70 crimes he was charged with, including crimes against humanity and war crimes. The case has captivated the attention of Court watchers and bloggers in large part because of Ongwen’s traumatic past (see here, here and here). The Lord’s Resistance Army (LRA), which is an armed rebel movement operating in Northern Uganda since the 1980s, abducted him around the age of 9 years old. As the years passed, he rose in the ranks to become a senior commander and was found to be responsible for serious crimes. Now in his 40s, Ongwen faces sentencing for his crimes later this week.
Numerous scholars and commentators, including Raphael Lorenzo Aguiling Pangalangan (yes, Judge Pangalangan’s son), have written on the difficult question of holding accountable the child soldier, who may later have climbed in the ranks and perpetrated crimes. Indeed, this was one of the key issues in the case. Now, the big question is how the Court will deal with his past abduction and experience as a child soldier not for the purposes of criminal accountability but for purposes of sentencing.
Following the commencement of trial resulting in a conviction the Trial Chamber, pursuant to Article 78(1) of the Rome Statute, must determine the appropriate sentence. In accordance with Rule 145 of the Rules of Procedure and Evidence, the Chamber is obliged to take into account mitigating and aggravating factors. Mitigating factors include, inter alia, substantially diminished mental capacity, duress, efforts of the convicted individual to compensate victims, and cooperation with the Court. Aggravating factors include, inter alia, abuse of power or official capacity, particularly defenceless victims and multiple victims. If the sentencing briefs by the Parties and Victim Representatives are any indication, there may be widespread disagreement on the bench.
The victims, who submitted a joint brief, have recommended a life sentence. They argue that there are no mitigating circumstances that would apply and fear that upon release he could rejoin the LRA and reoffend. In contrast with the Victims’ Representatives and its own position at trial, the Prosecution, in its submission, adopted a more nuanced approach and recommended 20 years. While focusing on the heinous nature of his crimes, the Prosecution acknowledges the ‘genuinely complex’ nature of his case due to his abduction, conscription, and indoctrination, which likely has had devasting and lasting consequences (para 152). It seems to recognize the difficulty of balancing his history on the one hand and his crimes on the other—far more so than it seemed to argue at trial. Finally, the Defence, referring to Ongwen as a ‘mentally disabled defendant’ (para 2 and 38), suggested in its submission a sentence of time served or a maximum of 10 years, combined with the traditional restorative practice of Mato Oput.
But how will the Trial Judges respond to the vastly different assessments of how sentencing should play out? This post looks at how the ICC has dealt with child soldiering effects in the past. It is probably unsurprising that the various Chambers at the Court have adopted two different approaches when it comes to understanding the child soldier experience. An unqualified approach for former child soldiers not standing trial, and a qualified approach for former child soldiers on trial. This differentiation may be warranted when it comes to accountability determinations (though this is debatable) but it certainly doesn’t seem logical for purposes of sentencing. Yet, since the Court has already found in its trial judgment that Ongwen’s victimization and trauma did not impact upon his mental state (for purposes of the defences raised), it may play a minimal role in mitigation determinations. We argue that this would be a mistake.
As previously noted by Mark Drumbl, the child soldier experience is both complex and poorly understood by criminal law institutions. Too often, it becomes a simplistic binary construction between competing narratives depicting either the faultless victim or the evil perpetrator. His critique is certainly evident in the ways in which the various Chambers at the ICC have approached the child soldier experience. Concerning the effects of the child soldier experience on former child soldiers who are victims not standing trial, the Court has taken an incredibly strong and unqualified approach.
In Lubanga, the Trial Chamber stressed in its decision on sentencing, that child soldiers were exposed to an ‘environment of violence and fear’ (para 38). They referenced expert reports and scholarly writings emphasizing that the child soldier experience ‘can hamper children’s healthy development and their ability to function fully even once the violence has ceased’ (para 39). They detailed the many negative psychological and social effects, noting that the effects likely have irreparable consequences and significant impact on the former child soldier’s ability to make choices and/or live a life without violence (para 41). They also found that the effects of the child soldier experience are continuous and even generational (para 41). In other words, the negative effects do not stop when the individual reaches adulthood. Rather, they are continuously felt by the affected person and even passed down. The consequence of this extreme traumatic past is that the victim continuously struggles in the present, and, at least to some extent, may not have full agency over decision making as a result.
Conversely, in Ongwen, TC IX did not adopt this approach to the child soldier experience. In the trial judgment, TC IX gave little (legal) consideration to the fact that Ongwen had himself been severely victimized from the age of 9. On the matter of exclusion of criminal responsibility, the Defence had argued exclusion based on mental disease or defect, which TC IX dismissed. The Judges found that Ongwen did not suffer from a mental disease or defect at the time of the conduct relevant under the charges (paras 2450, 2580). The Chamber’s conclusion was largely a result of it finding the Defence experts’ evidence and testimony unreliable. In contrast, it found the Prosecution experts’ rebuttal of these effects ‘impressive’ (para 2478). This is surprising given the fact that these experts did not conduct face-to-face clinical interviews with Ongwen but, rather, relied on second-hand material to make their determinations. It also discounts the expert testimony provided in Lubanga.
TC IX similarly dismissed the arguments of duress. While it recognized that Ongwen had been abducted at a young age by the LRA, the Chamber noted that he committed the relevant crimes when he was an adult. Affording him full control and agency over his decision making. And that, in any case, the fact of having been (or being) a victim of a crime does not constitute, in and of itself, a justification of any sort for the commission of similar or other crimes – beyond the potential relevance of the underlying facts to the grounds excluding criminal responsibility expressly regulated under the Statute (para 2672). The Chamber endorsed this finding considering several factors, including among other things, Ongwen’s status in the LRA hierarchy (para 2581). The Court’s analysis of the child soldier experience in the judgment was therefore more qualified than in Lubanga. It really only recognized and considered the effects of the child soldier experience up until he was 18 years of age—and even then quite minimally. Ongwen, therefore, could not rely on mental disease or defect (or duress and severe psychological impact) stemming from the unqualified approach applied to the child soldier experience in Lubanga.
But, again, assessing responsibility is one thing and assessing punishment is another. Will the TC IX use the same qualified approach when considering mitigation for sentencing? No one really knows but there are some signs pointing to an affirmative response. The Chamber, through a Single Judge, recently rejected the Defence’s request for amicus intervention on sentencing, stating that in light of the evidence already on record, including the personal background and individual circumstances of Ongwen, it has sufficient evidence and submissions to determine the appropriate sentence (para 4). This decision indicates, to some degree, that the Chamber may stick to the qualified approach it adopted in the trial judgment. It is therefore quite possible the Chamber will not take into account Ongwen’s child soldier experience in its sentencing considerations to any great extent given its current qualified, or conditional, position.
Whether courts should even consider the effects of child soldiering as a mitigating factor is an unsettled debate. Some have suggested that consideration for mitigation should only be tolerated in extreme cases, which would require some type of qualitative and quantitative assessment. Others have suggested that the child soldier and former child soldier status should be a default mitigating factor. One of the major concerns is that a lesser sentence even for former child soldiers would negate the level of culpability, accountability, and other criminal law goals such as deterrence, rehabilitation, and incapacitation. Indeed, these are some of the positions argued by the Victims’ Representatives.Other objections to mitigation may concern the gravity of crimes committed, but since mitigation of sentence does not necessarily impact blame and accountability, the notion of international justice does not seem to oppose mitigating punishment for former child soldiers who are in essence themselves inevitable products of the very crimes international criminal justice seeks to prevent and punish. This is particularly the case when its own case law recognized the severe negative impacts it has on an individual’s mental capacity. Moreover, the Rules of Procedure and Evidence call upon the Judges to consider the circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress.
It would be fair to say that up until now the ICC’s position on the effects of the child soldier experience is two-sided or two sides of the same coin. It provides a default approach for child soldiers not facing trial and suggests a qualified approach for former child soldiers on trial. Drumbl has long been calling out this illogical positioning of the Court. It means that for former child soldiers not facing trial, their trauma is continuous and severe, affecting all aspects of their lives. Yet, for former child soldiers facing trial, like Ongwen, the trauma gets compartmentalized and is not relevant to his criminal actions or decisions after the age of 18—and possibly not relevant to punishment. We assert that this position is tenuous at best, particularly when it comes to sentencing. To do so, would completely invalidate (and not just for accountability purposes) the Court’s earlier findings of the trauma experienced by child soldiers more generally.
While it’s hard to make heads or tails of sentencing determinations, we assert it would be a mistake not to take into account his past history for mitigation purposes. To ignore his history would fail to capture the complexities of these types of cases. The qualified approach would also, in many ways, fail to recognize the government’s failure to protect children like Ongwen as well as the LRA’s role in abducting him. This is an opportunity for the Court to grapple with the intricacies of victim-perpetrator realities, far more so than the trial judgment did. International criminal law judges have a responsibility to engage with these issues on a deeper level and we hope that they will do so at sentencing. Should TC IX not do so, it could potentially be appealed by either the Prosecution or Defence.