Casting the net wider: A critical analysis of the sentencing criteria in the Ongwen case at the international criminal court

Quenivet, Noelle; Nortje, Windell

Abstract

Throughout history, children have been involved in armed conflict both as victims and perpetrators. The international community, at the end of the last century, finally signalled its intention to hold to account those responsible for conscripting and enlisting child soldiers. Nearly 20 years ago the Special Court for Sierra Leone was faced with the first case of prosecution of an individual for the crime of recruiting children under the age of 15 into armed groups or using them to participate actively in hostilities. Little did we know at the time that a former child soldier, Dominic Ongwen, would face prosecution for that same crime before the International Criminal Court. The dual status of Ongwen, that of victim and perpetrator, has tainted the trial since its inception. Although Ongwen is not being prosecuted for crimes he committed as a child, his experience as a boy abducted by the Lord’s Resistance Army who rose in rank to be a commander has been raised on several occasions by the Defence. To obtain a non-guilty verdict, the Defence has submitted two grounds for excluding responsibility under Article 31 of the ICC Statute: mental disease or defect and duress.
The latter is often mentioned by scholars as the most appropriate defence in relation to (former) child soldiers as they grow up in an environment of constant pressure, fear and threat to their lives. However, the definition of duress as spelled out in the ICC Statute and interpreted by the Court does not include elements relating to the more general environment in which child soldiers live. Duress, as a ground for excluding responsibility, cannot accommodate the dual status of former child soldiers. Whereas the status is recognised by the Court it is not accepted as a ground for excluding responsibility, the Court unambiguously stating that ‘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’. Whilst the Court is correct in denying a blanket immunity for former child soldiers (as this would be against the purposes of sentencing that are retribution and deterrence) we contend that the dual status of Ongwen ought to have been given better consideration already during the trial.
It is in the Sentencing Judgment that the Court pays heed to Ongwen’s dual status. Indeed, rather than sentence him to life imprisonment, which would have been justified considering the gravity of the crimes committed, the Court agrees on 25 years. Should the Court continue to offer a narrow interpretation of duress and thereby only accommodate the dual status of former child soldiers at the sentencing stage, we suggest the Court uses a typology of elements based on the lived experience of child soldiers.

Citation

Quenivet, N., & Nortje, W. (2022, October). Casting the net wider: A critical analysis of the sentencing criteria in the Ongwen case at the international criminal court. Presented at Lights and Shadows in the Ongwen Case at the International Criminal Court: Inter- and Multi-disciplinary Approaches, University of Iyvaskyla (Finland) - Online

• Presentation Conference Type: Speech
• Conference Name: Lights and Shadows in the Ongwen Case at the International Criminal Court: Inter- and Multi-disciplinary Approaches
• Conference Location: University of Iyvaskyla (Finland) - Online
• Start Date: Oct 13, 2022
• End Date: Oct 14, 2022
• Deposit Date: Oct 18, 2022
• Publicly Available Date: Oct 19, 2022
• Keywords: child soldiers; international criminal law; international criminal; sentencing
• Public URL: https://uwe-repository.worktribe.com/output/10098369
• Related Public URLs: https://internationallawobserver.eu/call-for-papers-lights-and-shadows-in-the-ongwen-case-at-the-international-criminal-court-inter-and-multi-disciplinary-approaches; ; https://drive.google.com/file/d/18d-aJMxq_H-Vpxka3kw95mwW7b0gKfw4/view