Academic journal article American University International Law Review

Dominic Ongwen and the Rotten Social Background Defense: The Criminal Culpability of Child Soldiers Turned War Criminals

Academic journal article American University International Law Review

Dominic Ongwen and the Rotten Social Background Defense: The Criminal Culpability of Child Soldiers Turned War Criminals

Article excerpt

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

- Chief Prosecutor Robert H. Jackson1

I. INTRODUCTION

The year was 1988. A nine-year old boy was on his way to school when he was abducted by the Lord's Resistance Army (LRA).2 That boy, once described to be shy and innocent,3 would go on to spend the rest of his adolescent life as a soldier; forced to commit unfathomable atrocities both in numbers and in agony; not only in scale, but in severity.

Thirty years later, that boy would come to be known as Dominic Ongwen-the Brigadier General of the LRA and member of the core leadership responsible for devising and implementing attacks upon civilian populations.4 Currently, he is charged before the International Criminal Court (ICC) with seventy counts of crimes against humanity and war crimes-the highest number of charges an accused has faced before the Court.5

A former child soldier himself, Ongwen is charged with the same crimes of which he was victim. International law expressly prohibits the recruitment and use of children in hostilities.6 Other than the risk to their physical well-being, children's participation in armed conflicts causes particularly severe trauma, contributing to their penchant for violence.7 A child soldier's active participation in armed hostilities "teaches [them] the rule and culture of violence, disrupts their education and frequently results in gravest traumas, since children are even less capable to deal with the horrors of war than grown adults."8 The ICC itself in the case against Congolese warlord Thomas Lubanga Dyilo recognized the omnipresent "environment of terror" that child soldiers are subjected to when abducted.9

The protected status of the child is enshrined throughout international law, including the Rome Statute which excludes from the Court's jurisdiction "any person who was under the age of eighteen at the time of the commission of a crime."10 But note the ultimate irony. While legal doctrine recognizes the child soldier as the victim of war, Ongwen, a former child soldier, is tried as the perpetrator. Prosecutor v. Ongwen hence raises novel questions as to the child soldier; as to their status' longevity and potential criminal responsibility. As argued by Ongwen's defense counsel, if "the laws of war were meant to protect children[,] it is inapposite to suggest that individual criminal liability can then be imposed upon those like [Ongwen] who should have been protected but ended up enslaved[.]"11

The purpose of this Paper is to look at the doctrinal challenges embodied in Prosecutor v. Ongwen: A tug-of-war between liability, as imposed under international humanitarian law (IHL) and international criminal law (ICL), and protection, as embodied throughout international human rights law (IHRL), IHL, and ICL. This Paper seeks to confront the difficult question of holding the child soldier, who climbed the ranks, accountable. Part I will be devoted to establishing the premise of the study. The Paper will look at the factual milieu in which Ongwen is based. Part II will delve into possible grounds for excluding criminal responsibility for the child soldier turned alleged war criminal. Distinct from Ongwen's Defense Counsel's approach,12 Part II will advance Ongwen's "rotten social background"13 not as a form of duress,14 but as a mental defect.15 Part III will conclude with a caveat addressing the doctrinal repercussions posed in ruling for or against the former child soldier who has come of age.

II.DOMINIC ONGWEN'S ROTTEN SOCIAL BACKGROUND

A. CHILD SOLDIERING IN CONTEXT

Actus me incito factus non est meus actus is a basic tenet of criminal justice meaning: 'an act done by me against my will is not my act.'16 For this reason, involuntary actions caused by either external restraints on volition or internal interference with cognition17 are expressly excluded by the Rome Statute from criminal responsibility. …

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