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how the case of a former child soldier exposed weaknesses in international criminal law

how the case of a former child soldier exposed weaknesses in international criminal law

how the case of a former child soldier exposed weaknesses in international criminal law

Guilt and innocence are almost never clear-minimize, even in the most heinous of crimes. The modern charm of Dominic Ongwen, former commander in the Lord’s Resistance Army (LRA), shines a gentle on the complexity of defence in worldwide criminal legislation.

In December, the Worldwide Prison Court docket (ICC) refused Ongwen’s attractiveness, cementing his conviction and 25-yr jail sentence for many charges of war crimes and crimes towards humanity.

Ongwen was convicted of some of the most egregious crimes in worldwide law: rape, sexual slavery, torture, recruitment of child troopers, and different crimes towards people today dwelling in camps for those people internally displaced.

Through his demo, Ongwen admitted that he experienced carried out the acts, but did not confess guilt. Alternatively, he relied upon two defences to argue for exoneration: mental condition and duress. Ongwen was kidnapped at around nine years old and recruited as a baby soldier, ahead of rising as a result of the ranks of the LRA to the position of commander. He argued that his experience as a youngster soldier and the brutal routine of the LRA left him with no other selection than to comply with orders to dedicate war crimes and crimes towards humanity.

The defences Ongwen used are element of the Rome Statute. The 2002 treaty sets out the regulation of the ICC, such as which crimes can be prosecuted by the court docket. It also codifies the defences that can be employed by the accused.

Ongwen is, and stays, the first defendant ahead of the ICC to use any of the defences set out in the Rome Statute. This implies it is the 1st time that the court has ever experienced to take into consideration how duress and mental condition could possibly apply.

The Rome Statute

The rejection of Ongwen’s attraction demonstrates that the bar for the defence of duress in respect of major violations of intercontinental legal regulation continues to be superior, and perhaps not possible to attain.

The inclusion of defences in the Rome Statute has extensive been contentious. Amnesty Intercontinental, in its submissions to the drafters of the treaty, said that making it possible for a duress defence for the most really serious crimes imaginable was “inappropriate”, and that specified defences, these as excellent orders, ought to be excluded fully.

The ultimate version of the Rome Statute established out 6 accessible defences: self-defence, mental disorder or defect, duress, top-quality orders, intoxication and mistake. Each of the defences, if pleaded properly, would consequence in exoneration of the accused. It is also feasible for any of the defences to be regarded in mitigation of punishment.

Just after Ongwen, we even now know minor about what a successful defence of duress could glance like. Location out the defences as comprehensive justifications for action will make this undertaking much harder. A more nuanced technique in the Rome Statute, which include distinctions involving comprehensive and partial defences, and factors which could be viewed as in mitigation of punishment, would strengthen the legislation.

A long pursuit

Ongwen’s surrender in 2015 marked the conclude of a pursuit lasting almost a decade. Uganda referred the conflict with the LRA to the Intercontinental Criminal Court in 2004. Ongwen’s arrest warrant was unsealed in 2005. But it was not until 2015, when he surrendered to authorities in the Central African Republic, that he could be transferred to The Hague to stand demo.

Ongwen’s charm targeted on the argument that the demo chamber committed problems in reasoning when contemplating his defence.
Duress has numerous elements, but the chamber focused on just one by yourself: a danger of loss of life or critical overall body damage to the individual on an imminent or continuing foundation.

The court did not acknowledge Ongwen’s argument that he experienced lived in a condition of panic. While the judges acknowledged that the menace of death or really serious hurt could lengthen beyond an fast predicament, the judgement stated that it would have to have to come about “reasonably soon”.

Witnesses testified that Ongwen was a “self-confident commander” who experienced disobeyed orders on a range of situations. The appeals chamber concluded, as the demo chamber experienced performed, that the excess weight of evidence in favour of his willing participation was way too wonderful to engage the defence of duress.

Judges at the ICC, wearing blue robes, sit side by side behind a desk at the ICC
Users of the ICC making ready to rule on Ongwen’s appeal.
Sem Van Der Wal / EPA-EFE

Mitigating punishment

A partly dissenting opinion by Decide Luz del Carmen Ibáñez Carranza, having said that, recommended that Ongwen’s encounter as a kid soldier ought to have been thought of in mitigation of punishment.

As a minority dissent, this had no result on Ongwen’s sentence. But Ibáñez Carranza built a variety of powerful factors, like the plan that Ongwen’s qualifications contributed to the predicament of duress, and should therefore have an influence on his sentence.

The court’s regulations of treatment and evidence notice that duress could be regarded as in mitigation of punishment. But wherever there is not adequate evidence to acquit the accused, the Rome Statute includes no reference to defences which could partly exonerate an individual. Partial defences are frequently used at the domestic amount, these kinds of as provocation in Scots law. They allow for the court docket to minimize the sentence imposed on the convicted person, on the grounds of lesser culpability.

A partial defence could, in idea, lessen the sentence of the accused to reveal lesser guilt in circumstances like Ongwen’s. If provided explicitly, it could have delivered a clearer route for Ongwen and a far more rational strategy to his defence, outside of an attempt to justify his carry out.