The surrender of Dominic Ongwen, a former Lord Resistance Army (LRA) commander, seems to be raising more questions than answers among various international criminal justice actors, and the general public.
Ongwen’s surrender has come at a time when Uganda’s cooporation with the International Criminal Court (ICC) is shaky. President Museveni has repeatedly urged African States to withdraw from the ICC.
Yet on January 6, Ongwen who is said to have been abducted at the age of 10 and is now believed to be about 34 years, surrendered to US military advisers, a force that has been supporting the African Union Regional Task Force (ARTF) in the Central African Republic (CAR) to hunt down the LRA.
Ongwen’s mixed background as a child soldier has certainly raised more questions than answers regarding which court (ICC or International Crimes Division of the High Court of Uganda) will be best suited to handle his case, and whether his experience as a child soldier will in any way affect these judicial processes.
According to recent media reports, government has confirmed that Ongwen will be tried at the ICC where he is expected to face charges of war crimes and crimes against humanity.
But what remains unanswered now is how his experience as a formerly abducted child soldier will affect the trial processes.
What makes Ongwen’s case unique is that according to his close family, Ongwen was abducted by the LRA while he was on his way to school in 1990.
While in captivity, Ongwen was given military training and within a few years of purposed grooming and training, Ongwen became known as one of the most ruthless LRA commanders.
His brutal attacks were more felt at the time when the LRA forces left northern Uganda in 2005/6 and went to the Democratic Republic of Congo. During that time, Ongwen’s troops repeatedly terrorised the Haut and Bas Uele communities, including the Makomco massacre in 2009.
This was at the time when his group killed at least 345 civilians and abducted 250 civilians, including more than 80 children in northern DRC. Over time, various researchers have documented this incident as one of the worst massacres committed during the LRA’s brutal history.
Obviously, this background puts Ongwen in a double edged-situation, which gives him a dual-identity. On the one hand, he is seen as a victim, largely because he was abducted and forcefully recruited to commit crimes against his will, and on the other hand, he fits a perfect definition of a perpetrator, criminally liable for the grave crimes he committed while he served the interest of the LRA.
These circumstances make Ongwen’s situation rather a unique one and his trial at the ICC ought to be handled a lot more carefully as it will set an important precedent in the history of international criminal justice.
This is because for the first time in history, Ongwen will be the first child soldier to be tried by the ICC.
And the fact that the Rome Statute, which established the ICC, does not provide jurisdiction over crimes committed by someone under the age of 18, his trial will certainly reveal some existing gaps and possible future challenges in regard to how various international criminal justice systems will continue to handle cases of child soldiers who commit such crimes against their will.
For now, as the ICC prepares to conduct Ongwen’s trial, his background as an abducted child soldier should be used as a mitigating factor during his sentencing, trial and conviction processes.
This will certainly form a strong basis that can be used for his legal defence as the search for justice continues.
Ms Atuhaire is an Associate Researcher at the Foundation for Human Rights Initiative. email@example.com