The Child Soldier, The Defence Of Insanity And Dominic Ongwen
Author: LawSphereX
Category: General Law
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THE CHILD SOLDIER, THE DEFENCE OF INSANITY AND
DOMINIC ONGWEN Yunusa Usman, Doctoral Researcher, Faculty of Law, Europa-Universität Viadrina, Frankfurt (Oder), Germany
ABSTRACT
Thousands of children are conscripted and deployed to fight for state and non-state actors in various conflict theatres worldwide. Dominic Ongwen was just supposed to be part of this grim statistic. However, through a series of intervening events, he became the first former child soldier tried and convicted by the International Criminal Court for crimes, including the one perpetrated against him as a child. Understandably, the blurring of the line between perpetrator and victim in Ongwen's case has generated significant academic and sometimes emotive discourse.
As the case came to an end in February 2024 with the award of reparations against him for thousands of victims connected with Uganda's non-international armed conflict, the Paper revisits this intriguing case through a textual analysis of the record of judicial proceedings and relevant legal provisions and explores the interplay between Ongwen's dual status, his reliance on the defence of insanity and the critical approaches of the trial and appellate Chambers of the Court to this novel case. This Paper concludes that despite certain areas requiring further elaboration, the International Criminal Court, through its handling of the Ongwen case, has significantly fleshed out the jurisprudence on the interplay between trauma related to child soldiering and the defence of insanity to guide future trials.
Keywords: Child Soldier, Crimes against Humanity, Defence of Insanity, Dominic Ongwen, International Criminal Court, International Criminal Law, War Crimes.
1. Introduction
On 28 February 2024, the Trial Chamber IX of the International Criminal Court (ICC) issued an Order of monetary reparations against Dominic Ongwen in favour of thousands of direct and indirect victims of his established crimes against humanity and war crimes in northern Uganda. 1 The punitive award marked the end of judicial proceedings in arguably the most complex case at the ICC, with several unflattering records. First, Uganda's background referral represented the first time a State Party to the Rome Statute of the International Criminal Court ('Rome Statute') referred a situation of alleged commission of international crimes to the ICC. 2 Secondly, with 70 counts of crimes against humanity and war crimes confirmed by the Pre- Trial Chamber II in 2016, Ongwen faced the most number of charged counts against an accused in the history of the ICC to date.
3 Lastly, and most importantly for this Paper, Ongwen was the first former child soldier tried and convicted for crimes he committed in the service of his abductors as an adult. He was initially abducted as a child of around 9 years by the Lord's Resistance Army (LRA) in the late 1980s and conscripted to fight for the armed group in the non-international armed conflict (NIAC) which erupted in northern Uganda. He rose through the ranks over 20 years to command one of the four brigades of the LRA, the Sina Brigade. 4 In that command capacity, Dominic Ongwen allegedly orchestrated several crimes, including deliberate attacks on camps for internally displaced persons in northern Uganda, sexual and gender-based crimes and conscripting children to fight for the LRA.
5 After examining over a hundred oral and written testimonies for the Prosecution and Defence as well as representatives of participating victims,6 Trial Chamber IX found Ongwen guilty on 61 counts of crimes against humanity and war crimes committed between July 2002 and December 2005 in the context of northern Uganda's NIAC. 7 Subsequently, on 15 December 2022, the Appeals International Criminal Court, Case Information Sheet: Situation in Uganda - The Prosecutor v. Dominic Ongwen (ICC-02/04-01/15), July 2021, ICC-PIDS-CIS-UGA-02-021/21_Eng [PDF], https://www. icc- cpi. int/sites/default/files/CaseInformationSheets/OngwenEng. pdf. ; The Prosecutor v. Dominic Ongwen, Reparations Order, ICC-02/04-01/15-2074, International Criminal Court (Trial Chamber IX), 28 Feb 2024. International Criminal Court, Case Information Sheet, supra note 1.
International Criminal Court, Case Information Sheet, supra note 1; Open Society Justice Initiative, The Trial of Dominic Ongwen at the ICC: The Judgment, Briefing Paper, Feb. 2021 [PDF], https://www. justiceinitiative. org/publications/the-trial-of-dominic-ongwen-at-the-icc-thejudgment, at 2-3. International Criminal Court, Case Information Sheet, supra note 1; Open Society Justice Initiative, supra note 3, at 2. Open Society Justice Initiative, supra note 3, at 2-3. Open Society Justice Initiative, supra note 3, at 3-4. International Criminal Court, Case Information Sheet, supra note 1; Open Society Justice Initiative, Chamber confirmed the conviction and the 25-year custodial sentence imposed by the trial Chamber. 8 Ongwen is serving his sentence in Norway9 as the designated State of enforcement.
10 At the trial and appeal stages, a key strategy of Ongwen's Defence11 was to link his abduction and conscription as a child soldier to his later commission of the charged crimes through the utilisation of Article 31(1)(a) of the Rome Statute. 12 This Article operates to exclude an accused's criminal responsibility on grounds of 'mental disease or defect'. Since the unsealing of the Warrant of Arrest against Ongwen in 2005,13 there has been no shortage of academic discussions14 from several perspectives, such as psychology, sociology, history and, of course, law, of the implications of his background as one of thousands of child soldiers worldwide15 on his criminal responsibility for the charges he faced at the ICC.
With the conclusion of the judicial process, the Paper undertakes a textual examination of the trial and appeal proceedings to highlight the interplay of Ongwen's background, his claim of mental incapacity and the Court's ultimate decision to find him criminally responsible for the crimes he committed in northern Uganda during the Country's NIAC. 2. Key Aspects of Dominic Ogwen's Trial and Appeal Proceedings supra note 3, at 2. International Criminal Court, Case Information Sheet, supra note 1. International Criminal Court, ‘Dominic Ongwen transferred to Norway to serve his sentence of imprisonment’, Press Release, Dec. 18, 2023, https://www. icc-cpi. int/news/dominic-ongwen-transferred-norway-serve-his- sentenceimprisonment. The Prosecutor v. Dominic Ongwen, Decision designating a State of enforcement, ICC-02/04-01/15-2065, International Criminal Court (The Presidency), Nov. 9, 2023.
Open Society Justice Initiative, supra note 3, at 6. Rome Statute of the International Criminal Court, 38544 UNTS 2187 (p. 3), adopted on 17 July 1998, vol-2187-I-38544-English. pdf (Rome). International Criminal Court, Case Information Sheet, supra note 1.
See, for instance, Barrie Sander, We Need to Talk About Ongwen: The Plight of Victim-Perpetrators at the ICC, Justice in Conflict Blog, Apr. 19, 2016, https://justiceinconflict. org/2016/04/19/we-need-to-talk-about-ongwen-the- plight- of-victim-perpetrators-at-the-icc/. ; Mark A. Drumbl, Shifting Narratives: Ongwen and Lubanga on the Effects of Child Soldiering, Justice in Conflict Blog, Apr. 20, 2016, https://justiceinconflict. org/2016/04/20/shiftingnarratives-ongwen-andlubanga-on-the-effects-of-child-soldiering/; Paul Bradfield, The Moral and Legal Correctness of Dominic Ongwen’s Conviction, Justice in Conflict Blog, Feb. 10, 2021, https://justiceinconflict.
org/2021/02/10/themoral-and-legal-correctnessof-dominic-owns-conviction/; Juan-Pablo Perez-Leon-Acevado & Fabio Ferraz de Almeida, Introduction: Lights and Shadows of the Ongwen Case at the International Criminal Court, 23(5-6) IntlCLR 667- 73(2023). United Nations Children's Fund, ‘Children Recruited by Armed Forces or Armed Groups’, UNICEF Online, Dec 22 2021, https://www. unicef. org/protection/children-recruited-by-armed-forces.
As mentioned, Ongwen was already an adult at the time of his crimes. 16 Yet, the question of his agency for committing crimes in issue formed a critical element of the case for both the Prosecution and Defence because of his background as a child abducted and later conscripted to fight by the LRA. Consequently, Trial Chamber IX and the Appeals Chamber of the ICC examined a significant volume of mental health expert testimonies and reports in their respective decisions to convict and affirm the conviction and sentence on Ongwen. An analysis of three critical aspects of the judicial proceedings follows. 2. 1.
Burden and Standard of Proof for Defence of Insanity under the Rome Statute On 28 January 2019, shortly after opening his Defence, lawyers for Ongwen requested the Trial Chamber IX to rule on which side bears the burden of proof and to what requisite standard for establishing the requirements of Article 31(1)(a) of the Rome Statute regarding mental incapacity as a ground excluding criminal responsibility. 17 In the Defence's opinion, in the absence of explicit allocation of burden and standard of proof under Article 31(1)(a), the Court would be violating the Rome Statute's presumption of innocence under Article 66 and prohibition of any reversal of the burden of proof on the accused under Article 67(1)(i) if it insists on Ongwen's responsibility to prove that he was suffering mental incapacity at the period relevant to the charges, beyond merely pleading Article 31(1)(a).
18 In their rebuttal filed on 7 February 2019, the Prosecution rejected the Defence's approach to Article 31(1)(a) in terms of 'burdens' on Parties. 19 Instead, the Prosecution opined that the emphasis should be on the Prosecution and Defence assisting the Court with all available evidence in light of Article 31(2) of the Rome Statute, which empowers the ICC to determine the applicability of any of the four exculpatory grounds stipulated Jason Burke, 'Trial of ex-child soldier Dominic Ongwen to hear prosecution case', The Guardian Online, Jan. 16, 2017, https://www. theguardian. com/law/2017/jan/16/trial-ex-child-soldier-dominic-ongwen-to-hear-prosecution-caseiccuganda; Open Society Justice Initiative, supra note 3, at 2. The Prosecutor v.
Dominic Ongwen, Decision on Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute, ICC- 02/04- 01/15-1494, International Criminal Court (Trial Chamber IX), Apr. 5, 2019a, para. 6. The Prosecutor v. Dominic Ongwen, Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute, ICC-02/04- 01/15-1423, International Criminal Court (Trial Chamber IX), Jan. 28, 2019b, paras. 2 and 9-11. The Prosecutor v.
Dominic Ongwen, Prosecution Response to Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute (ICC- 02/04-01/15-1423), ICC-02/04-01/15-1439, International Criminal Court (Trial Chamber IX), Feb. 7, 2019c, paras. 2- 3. under Articles 31(1)(a)-(d), namely, mental incapacity, involuntary intoxication, selfdefence/defence of property and duress. 20 There is no doubt that the Defense's request for the Court's ruling on the applicable burden and standard of proof for Article 31(1)(a) reflects the non-uniformity in national jurisdictions regarding establishing a plea of insanity.
Generally, with their initial inquisitorial approach to criminal trials, Civil Law jurisdictions like France and Germany impose responsibility on a pretrial Court to assess the presence of all the elements of an alleged crime, including an accused person's mental capacity at the relevant period. 21 Consequently, a Judge can commission independent pre-trial mental health assessments of accused persons and act on such expert positions irrespective of the evidence the Prosecution and Defence adduced. 22 In other words, under Civil Law jurisdictions, it is not a question of 'burden' nor 'standard' for either the Prosecution or Defence to discharge regarding insanity as a ground excluding criminal responsibility per se.
Instead, parties are obliged to assist the Court with relevant inculpatory and exculpatory evidence in reaching its decision regarding the mental capacity of an accused to stand trial. Conversely, many Countries with Common Law tradition of wholly adversarial criminal trials approach any issue of mental incapacity in a case from the starting point that 'sanity is the normal condition of the intellect'. 23 Hence, the burden is usually on an accused person to show that they were, because of a mental disease or defect at the relevant period, not liable for a particular act or omission constituting a crime with a 'balance of probabilities' as the requisite standard of proof. 24 Additionally, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia supports the common law position of imposing a burden on an accused person to The Prosecutor v.
Dominic Ongwen, Prosecution Response to Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute (ICC-02/04-01/15-1423), ICC-02/04-01/15-1439, International Criminal Court (Trial Chamber IX), Feb. 7, 2019c,paras. 5-6 and 10-12. Carl-Friedrich Stuckenberg, Comparing Legal Approaches: Mental Disorders as Grouds for Excluding Criminal Responsibility, 4(1) BJCLCJ 48, 59 (2016). Nicolas Combalbert et al. , Forensic Mental Health Assessment in France: Recommendations for Quality Improvement, 37(6) Int’l J. L. & Psychiatry 628, 628-634 (2014); Thomas Fovet et al. , Mental Health and the Criminal Justice System in France: A Narrative Review, 1 Forensic Sci. Int. Mind Law 1, 2-3 (2020) W. B. J. , The Burden of Proof in Cases of Insanity, 18(6) A. L. R. 329, 330 (1870).
See, for instance, The Criminal Code Act (as amended), No. 12 of 1995, s. 7. 3 (Australia); The Criminal Code (as amended), R. S. C. , 1985, c. C-46, s. 16 (Canada); Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, 2023, s. 108 (India); The Evidence Act, No. 18 of 2011, ss. 137 and 139 (Nigeria). establish insanity as a ground excluding criminal responsibility, also on a balance of probabilities. 25 In response to the Defence application, the Trial Chamber IX emphasised the need for the Defence to comply with the requirements of Rule 79(1)(b) of the ICC's Rules of Procedure and Evidence26 (RPE-ICC) concerning availing the Prosecution with details of evidence to support the raising of a ground excluding criminal responsibility under Article 31(1) of the Rome Statute.
27 However, beyond encouraging the Defence to present all available evidence regarding mental defect to indicate that Ogwen would benefit from the operation of Article 31(1)(a) of the Rome Statute,28 the trial Court deferred its interpretation of all relevant legal issues regarding the burden and standard of proof for the Defence of insanity to its final Judgement. 29 Interestingly, in its brief ruling on the Defence's application, Trial Chamber IX did allude to the currently thin jurisprudence regarding the relationship between the Rome Statute's prohibition of reversal of the burden of proof on the accused and the requirements of Article 31(1). 30 As promised, Trial Chamber IX examined the legal provisions relevant to establishing Article 31(1)(a) in its final Judgement.
According to the Trial Chamber, the absence of explicit reference to burden and standard of proof for the Defence of insanity under the Rome Statute leads to automatic reliance on the general provisions governing these matters under the Statute. 31 Consequently, Trial Chamber IX emphasised the untransferable responsibility of the Prosecution to establish all the elements of the crimes allegedly committed by Ogwen, including the requisite mental states. 32 At the same time, the Court must make a finding on the applicability of Article 31(1)(a) through the evaluation of adduced evidence. 33 However, the Trial Chamber's relatively short ruling on the associated burden and standard of proof for raising a defence of insanity under the Rome Statute arguably leaves a critical question unanswered: given the aforementioned The Prosecutor v.
Zejnil Delalic and Ors, Trial Judgement, IT-96-21-T, 1998, International Criminal Tribunal for the former Yugoslavia (Trial Chamber) Nov. 16, 1998, paras. 1157-1160; The Prosecutor v. Zejnil Delalic and Ors, Appeal Judgement, IT-96-21-A, International Criminal Tribunal for the former Yugoslavia (Appeals Chamber) Feb. 20, 2001, para. 582. Assembly of States Parties to the Rome Statute of the International Criminal Court, The Rules of Procedure and Evidence, ICC-ASP/1/3 [Part II-A], 2002. The Prosecutor v. Dominic Ongwen, Decision on Defence Request, supra note 17, at paras. 10-12. Id. at para. 15. Id. at para. 16. Id. at para. 14. The Prosecutor v. Dominic Ongwen, Trial Judgement, ICC-02/04-01/15-1762, International Criminal Court (Trial Chamber IX), Feb. 4 2021, para. 2455. Id. at para. 2455. Id. at para. 2456.
general responsibilities of the Court and the Prosecution, will it then suffice that the Defence announce an intention to rely on Article 31(1)(a) and provide a list of relevant witnesses and evidence to the Prosecution without more. Fortunately, in considering the Defence's appeal against Ongwen's conviction by Trial Chamber IX, the Appeals Chamber used the opportunity to elucidate further the law relating to proof of Article 31(1)(a). First, it reemphasised the fixed obligation of the Prosecution, not only to prove the accused's guilt but to rebut any defence raised under Article 31(1) of the Rome Statute beyond a reasonable doubt.
34 More pertinently, also relying on Rule 79(1)(b) of the RPE-ICC, the Appeals Chamber averred that the Defence has an evidentiary burden of proof to substantiate any claim it raises under Article 31(1)(a) of the Rome Statute beyond merely raising such claims. 35 Indeed, a literal reading of the last part of Rule 79(1)(b) of the RPE-ICC: ‘upon which the accused intends to rely to establish the ground’, arguably reflects the drafters' intent to place such evidentiary burden on an accused seeking to rely on an exculpatory defence. This approach, as clarified by the Appeals Chamber, which ostensibly incorporates elements of the common law position on establishing the defence of insanity, ensures that an unscrupulous accused does not have an incentive under the Rome Statute to hide behind any of the defences under Article 31(1) of the Rome Statute to escape criminal responsibility. 2. 2.
Psychological Impact of Child Soldiering and Article 31(1)(a) of the Rome Statute In their closing address before Trial Chamber IX, the lawyers for Ongwen reemphasised a key plank of their defence strategy built through two psychiatrists during his trial:36 that as a result of his experiences as an abducted child soldier, Ogwen suffers from several mental diseases, including post-traumatic stress disorder, dissociative disorder and severe suicide ideation which rendered him incapable of appreciating or controlling his conducts constituting the basis of the charges against him. 37 According to Defence, their experts' finding of Ogwen's mental The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), ICC-02/04-01/15A- 2022-Red, International Criminal Court (Appeals Chamber) Dec. 15 2022, paras. 3, 337-338 and 344-346. Id. at paras. 3-4 and 340-343. The Prosecutor v.
Dominic Ongwen, Public Redacted Version of ‘Corrected Version of Defence Closing Brief filed on 24 February 2020’, ICC-02/04-01/15-1722-Corr-Red, International Criminal Court (Trial Chamber IX) Mar. 13, 2020, para. 535. Id. at paras. 536-539 and 674. incapacity aligns with the report of the court-appointed mental health expert. 38 Conversely, the Prosecution, in their closing address, averred that Ogwen's refusal to be examined by Psychiatrists by the Prosecution points to a 'pattern of calculation and manipulation' to escape the charges against him using the instrumentality of Article 31(1)(a) of the Rome Statute. 39 More importantly, the Prosecution submitted that the Defence mental health experts' testimonies and written reports failed to critically engage with the requirements of Article 31(1)(a) and the factual evidence adduced during the trial.
40 On the Defence's claim that the court-appointed Psychiatrist concurs with their finding that Ogwen was suffering from several mental illnesses, the Prosecution rebutted by pointing out that the Court appointed the mental health expert in issue to examine Ogwen as to his fitness to stand trial. Consequently, his report was irrelevant to excluding criminal responsibility under Article 31(1)(a) of the Rome Statute. 41 As earlier mentioned, even though he stood trial as an adult, Ongwen's background as a former child soldier42 has generated divergent academic discourse on the impact of his childhood experiences on later criminal actions since his trial commenced in 2016. 43 Scholars, like Baines, seek to 'complicate [Ogwen's] status as a perpetrator, as well as a victim'.
44 Through field research involving extensive interviews in Uganda, He showed the brutal indoctrination process Ongwen must have undergone inside the LRA as a child. 45 Baines argued that the accused former child soldier 'grew up in one of the most brutal environments known to humanity, with little room for moral development that would enable him to take decisions independent of the LRA later'. 46 Similarly, Kelly et al. examined the 'mechanisms of Id. at para. 540. The Prosecutor v. Dominic Ongwen, Public Redacted Version of Prosecution Closing Brief, ICC- 02/04- 01/15-1719-Red, International Criminal Court (Trial Chamber IX) Feb. 24, 2020, paras. 371-373. The Prosecutor v. Dominic Ongwen, Public Redacted Version of Prosecution Closing Brief, ICC- 02/04- 01/15-1719-Red, International Criminal Court (Trial Chamber IX) Feb. 24, 2020, paras. 374-377. Id. at para. 378. The Prosecutor v.
Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at para. 35. International Criminal Court, Case Information Sheet, supra note 1. Erin Baines, Complicating victims and perpetrators in Uganda: on Dominic Ongwen, Justice and Reconciliation Project Field Note 7, July 2008, https://justiceandreconciliation. com/wpcontent/uploads/2008/07/JRP_FN7_Dominic- Ongwen. pdf. , at 2. Id. at 6-10. Id. at 2. indoctrination' used by the LRA in indoctrinating abducted children. 47 They referred to the LRA as a ‘strategic and well-organised organisation in its approach to enlisting child soldiers'. 48 Through extensive interviews,49 Kelly et al. described 'displays of violence to break social ties and make children feel complicit in the brutality'.
50 They also averred that for an abducted child, 'violent rituals, as well as tests to prove loyalty, often mark the transition to becoming a combatant'. 51 On the other end of the debate spectrum, scholars like Talbert and Wolfendale reject the idea that the traumatic experiences of child soldiers should necessarily have any bearing on criminal responsibility for their actions. They argued that the question of the guilt of child soldiers can be legitimately raised 'once their capacities for independently motivated and goal-directed agency are taken into account'. 52 Furthermore, Talbert and Wolfendale point to evidence that Dominic Ongwen had embraced the LRA's 'objectionable ideology'. 53 They warned of a dangerous slippery slope in excusing perpetrators because 'their moral vision is impaired' and factors beyond their control have shaped them.
54 Away from the academic debates, as Trial Chamber IX rightly highlighted in its Judgement and subsequently affirmed by the Appeals Chamber, three interconnected elements are required to establish an excuse from criminal responsibility55 under Article 31(1)(a) of the Rome Statute. Namely, the presence of a mental defect, the operation of such mental defect at the time of the commission of the alleged crimes and the proven impact of such mental defect to destroy the capacity of the accused to either appreciate the lawfulness or control the offending conduct(s). 56 Jocelyn T. D. Kelly et al. , Abducted Children and Youth in Lord's Resistance Army in the Northeastern Democratic Republic of the Congo (DRC): Mechanisms of Indoctrination and Control, 10(11) Confl Health 1, 3 (2016). Jocelyn T. D. Kelly et al.
, Abducted Children and Youth in Lord's Resistance Army in the Northeastern Democratic Republic of the Congo (DRC): Mechanisms of Indoctrination and Control, 10(11) Confl Health 1, 1 (2016). Id. at 4-8. Id. at 6. Id. at 9. Matthew Talbert & Jessica Wolfendale, The moral responsibility of child soldiers and the case of Dominic Ongwen, Stockholm Centre for the Ethics of War and Peace Blog, Mar. 5, 2018 [PDF], https://www. academia. edu/36114010/The_Moral_Responsibility_of_Child_Soldiers_and_the_ Case _of_Dominic_Ongwen. , at 1. Id. at 7. Id. at 8. Antonio Cassese et al. , International Criminal Law, 209, (3rd edn. , Oxford: Oxford University Press 2013). The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2452-2454; The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at para. 19.
In addition to evaluating evidence from witnesses of Ongwen's time with the LRA, Trial Chamber IX scrutinised evidence submitted by the two Defence mental health experts. 57 Furthermore, the Court reviewed the testimonies and reports of three experts engaged by the Prosecution. 58 It is interesting to note that the Trial Chamber did not have any 'methodological concerns'59 with the inability of the Prosecution mental health experts to examine Ongwen in person in so far as they relied on the materials prepared by the Defence and Court-appointed experts who did evaluate the accused person in person and reflected this limitation and adopted workarounds in their reports.
60 Through its Judgement, as later affirmed by the Appeals Chambers,61 the Trial Chamber, in rejecting Ongwen's plea of insanity,62 did much to flesh out the hitherto skeletal jurisprudence on the requirements for an accused to successfully rely on Article 31(1)(a) of the Rome Statute to escape criminal liability based on a mental disease or defect. A highlight of three of these judicial contributions would suffice here. First, given the arguably inquisitorial trial approach imported by Article 31(2) of the Rome Statute, there is an 'inherent incompatibility'63 between the testimony of a psychiatrist treating an accused for mental health issues and that of a psychiatrist acting as a forensic expert to assist the Court in determining the elements of Article 31(1)(a) of the Rome Statute through an 'objective and detached'64 evaluation of the accused.
Considering that a treating Physician has a vested interest in defending their diagnosis may taint the reliability of their evidence relevant to establishing a defence under Article 31(1)(a). 65 Secondly, an accused having previous traumatic experiences does not automatically equate proof that they suffer from mental defects relevant to their Defence, especially where the pertinent conduct of the accused person and testimonies of witnesses do not corroborate such reliance on the defence of insanity. 66 Indeed, there has to be clear evidence of a mental defect The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2522-2574. Id. at paras. 2470-2494. The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at para. 2469. Id. at paras. 2464-2469. The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at paras. 1271-1277.
The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at para. 2580. Id. at para. 2531. Id. at para. 2531. The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2528-2531; The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at paras. 1124-1148. The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2472-2481, 2498-2502, 2504- 2521, 2536-2544, 2545-2557; The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at paras. 1181-1183, 1185-1191, 1232-1247. that has destroyed and not merely diminished an accused's capacity to appreciate their actions' wrongfulness.
67 Finally, even where an accused's mental defect is scientifically provable in Court,68 the use of the phrase: 'at the time of that person's conduct' in the opening paragraph of Article 31(1) of the Rome Statute indicates that the Defence must successfully situate the unequivocal operation69 of such mental incapacity to periods to which the charges relate. 70 Consequently, Article 31(1)(a) is still not activated by proof of an accused's mental defect at their trial without a diagnostical connection to the prior events which gave rise to the alleged crimes. 71 2. 3.
Operation of Traumatic Background Experience and Diminished Mental Capacity in Mitigation of Sentencing at the International Criminal Court Based on the combined effect of Article 78(1) of the Rome Statute and Rule 145 of the RPE- ICC, Trial Chamber IX examined several mitigating and aggravating factors relevant to the established charges against Ongwen to determine the appropriate sentence. One of the mitigating factors considered by the Court was the abduction and conscription of the convict as a child by the LRA.
72 Crucially, Trial Chamber IX considered that: [Ongwen's] personal history and circumstances of his upbringing, since his young age, in the LRA – in particular his abduction as a child, the interruption of his education, the killing of his parents, his socialisation in the extremely violent environment of the LRA – must be given a certain weight in the determination of the length of each individual sentence. 73 Indeed, this above finding was valuable in reducing the sentencing decisions concerning several counts against Ongwen. 74 It is important to note that Rule 145(1)(c) of the RPE-ICC permits a trial court to consider a convicted person's 'age, education, and social and economic Antonio Cassese et al. , International Criminal Law, 224-226, (3rd edn. , Oxford: Oxford University Press 2013). The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2532-2535.
The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2536-2544; The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at paras. 1192-1196.
The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2482-2485, 2491- 2497, 2569-2573; The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at paras. 1265-1276. The Prosecutor v. Dominic Ongwen, Trial Judgement, supra note 31, at paras. 2573-2578; The Prosecutor v. Dominic Ongwen, Appeal Judgement (Conviction), supra note 34, at paras. 1284-1287. The Prosecutor v. Dominic Ongwen, Public Redacted Sentence, ICC-02/04-01/15-1819-Red, International Criminal Court (Trial Chamber IX) May 6, 2021, paras. 65-76. Id. at para. 87. Id. at paras. 152, 156, 161, 168 and 173. condition' in determining the appropriate sentence.
Notwithstanding, arguably, Trial Chamber IX could have further developed its reasoning for considering Ongwen's childhood abduction, the killing of his parents and upbringing in the highly unsuitable environment of LRA as mitigating factors. As Cubbon rightly points out, from this aspect of the Trial Chamber IX's sentencing decision, it is unclear whether these traumatic events were mitigating factors simply because they happened to the accused or because they had any bearing on his later criminal conduct and should, therefore, rightly operate to reduce the punishment on him as such. 75 This gap is even more glaring considering that international criminal jurisprudence features cases where trial courts have not hesitated to link the accused persons' adverse backgrounds and contexts to the crimes committed in mitigating the imposed sentences.
76 Furthermore, Trial Chamber IX was emphatic77 in refusing to link its decision to give weight to Ongwen's traumatic childhood experience with any 'substantially diminished mental capacity' as another distinct mitigating factor expressly mentioned under Rule 145(2)(a)(i) of the RPE-ICC. Specifically, the Court averred that the absence of proof of mental defect to satisfy the requirement of Article 31(1)(a) of the Rome Statute during trial meant that the mitigating factor of substantially diminished mental capacity could not avail the convict in consideration of his appropriate sentence after conviction. 78 Interestingly, in examining Ongwen's conviction for the conscription of children under 15 years and subsequently using them to fight for the LRA as an aggravating factor, Trial Chamber IX referenced the ICC's previous decision in The Prosecutor v.
Thomas Lubanga Dyilo to highlight the seriousness of the crime. 79 Aside from being the first trial completed at the ICC, the Lubanga case was also the first one before the Court in which the charges against the accused centred on his involvement in the conscription of children under 15 years of age, specifically into the Union des Patriotes John Cubbon, Mitigating of Dominic Ongwen’s Sentence: Gaps in the Justification, EJIK: Talk! , Blog of the European Journal of International Law, Jan. 5, 2023, https://www. ejiltalk. org/mitigation-of-dominicongwenssentence-gaps-in-the-justification/, at 2. The Prosecutor v. Zejnil Delalic and Ors, Trial Judgement, IT-96-21-T, International Criminal Tribunal for the former Yugoslavia (Trial Chamber) Nov. 16, 1998, paras. 1283-1284; The Prosecutor v.
Hadzihasanovic and Kubura, Trial Judgement, IT-01-47-T, International Criminal Tribunal for the former Yugoslavia (Trial Chamber) Mar. 15, 2006, para. 2081; The Prosecutor v. Naser Oric, Trial Judgement, IT-03-68-T, International Criminal Tribunal for the former Yugoslavia (Trial Chamber II), June 30, 2006, paras. 767-772. The Prosecutor v. Dominic Ongwen, Public Redacted Sentence, supra note 72, at paras. 83 and 90-94. Id. at para. 100. Id. at para. 357.
Congolais, a non-State armed group operating in the Democratic Republic of Congo. 80 As part of that trial process, Trial Chamber I relied on the expert testimony of a Psychologist as 'useful background evidence' before receiving the testimonies of victims conscripted by Lubanga as child soldiers. 81 In her report to the Court, Dr Elisabeth Schauer discussed extensive literature which emphasised the long-term psychological impact of child soldiering on victims,82 including the exhibition of violent behaviour by adults with a 'history of child soldiering'. 83 Hence, there are arguably relevant elements in the ICC's jurisprudence before Ongwen's case on which traumatic background experience could form the basis for a finding of diminished mental capacity as a mitigating factor.
In reviewing Trial Chamber IX's sentencing decision, the Appeals Chamber of the ICC explored the linkage between mental disease or defect sufficient to exclude criminal responsibility under Article 31(1)(a) of the Rome Statute and proof of diminished mental capacity as a mitigating factor during the sentencing phase under Rule 145(2)(a)(i) of the RPE- ICC. According to the Appeals Chamber, the same set of facts rejected by a trial Court as not showing any relevant mental disease or defect to exculpate an accused from criminal responsibility could nonetheless be evidence of diminished mental capacity to mitigate their sentence. 84 In that regard, the Appellate Chamber affirmed that Rule 145(2)(a)(i) of the RPE- ICC, unlike Article 31(1)(a) of the Rome Statute, does not require the presence of a mental flaw to 'destroy' an accused's relevant capacity.
85 However, crucially, beyond this general restatement of the applicable law and detailed support for Trial Chamber IX's finding that there was no evidence of the convict's diminished mental capacity as a mitigating factor,86 the Appeal Court declined to comment on whether the trial Court 'exercised its discretion properly'87 with its framing of Ongwen's traumatic background as a mitigating factor because his Defence did not make it a ground of appeal. Michael E. Kurth, The Lubanga Case of the International Criminal Court: A Critical Analysis of the Trial Chamber’s Findings on Issues of Active Use, Age and Gravity, 5(2) GoJIL 432, 432-434(2013). The Prosecutor v. Thomas Lubanga Dyilo, Trial Judgement, ICC-01/04-01/06-2842, International Criminal Court (Trial Chamber I) Mar. 4, 2012, para. 105.
Elisabeth Schauer, The Psychological Impact of Child Soldiering, Expert Report to the International Criminal Court, ICC-01/04-01/06-1729-Anx 1, Feb. 25, 2009, at 10-27. Id. at 26. The Prosecutor v. Dominic Ongwen, Appeal Judgement (Sentence), ICC-02/04-01/15 A2-2023, International Criminal Court (Appeals Chamber), Dec. 15, 2022, para. 4.
Id. at paras. 4-5 and 224-225. Id. at paras. 235-245. Id. at paras. 11-12.
This missed opportunity for the Appeals Chamber to weigh in is more pertinent because Trial Chamber IX had, in its sentencing decision, also acknowledged that other individuals were in 'circumstances often times very similar to those in which Dominic Ongwen found himself, [and] made choices different than him'. 88 Hence, there remains a need to clarify the appropriate methodology and scope for applying the different mitigating factors under Rule 145 of the RPE-ICC, especially concerning a former child soldier convict. 89 Regardless, the case against Dominic Ongwen has rekindled the discourse about the long-term impact of armed conflict on former child soldiers and the question of criminal responsibility for their actions. This Paper is therefore inclined to agree with the observation made by Baines: 'In Ongwen, the morally superior concept of 'child soldier as a victim' collapses.
But so too does the personification of evil into the image of a perpetrator'. 90 3. Conclusion Rightly so, the short and long-term harm to children conscripted to fight for conflict actors in various parts of the World has garnered significant attention in the literature. However, there is also no denying the real damage that these child soldiers do to civilians and incapacitated combatants in contravention of international criminal law. It is not practicable to hold every child soldier criminally responsible for their action(s). Notwithstanding, there could be aggravating circumstances. For instance, as in Ongwen's case, a child soldier later takes on command responsibility as an adult to perpetrate crimes against humanity and war crimes.
Furthermore, this Paper argues that the evaluation of any long-term mental health impact of armed conflicts on former child soldiers has to be case-specific—the ICC's creditable treatment of the conflicting expert evidence confirms this point. Nevertheless, the missed opportunity at the ICC to fully develop a methodology for assessing a former child soldier's traumatic background as a punishment-mitigating factor speaks to the challenge that Ongwen's status posed to the orthodoxy of legal categorisation of 'perpetrator' and 'victim' under international criminal law. As it turns out, these categories could also coexist The Prosecutor v. Dominic Ongwen, Public Redacted Sentence, supra note 72, at para. 85. Mark A. Drumbl, Victims Who Victimize: Transcending International Criminal Law’s Binaries, W & L Public Legal Studies Research Paper Series, Paper No. 2016-2, Jan. 29, 2016, at 25-26.
Erin Baines, Complicating victims and perpetrators in Uganda, supra note 44, at 17. in one individual. Given the thousands of child soldiers who would easily fit his profile, the 'test case' value of Dominic Ongwen's trial at the ICC is immeasurable.