When Victims Become Perpetrators

The Prosecution of Victim-Perpetrators and the Case of Dominic Ongwen

Master Thesis for the Master of Arts in Holocaust and Genocide Studies, University of Amsterdam and Institute for War, Holocaust and Genocide Studies (NIOD)

1 July 2016

Supervisor: Dr. Thijs B. Bouwknegt Second Reader: Dr. Kjell Anderson

Nicole Toedtli

Abstract

Dominic Ongwen was abducted by soldiers of the Lord's Resistance Army (LRA) as a boy and he was forced to become a child soldier. Inside the LRA, he continuously rose in rank until he was allegedly given the rank of a brigadier-general in 2004. In his alleged position as LRA commander, he allegedly planned and participated in the attacks on the Pajule, Odek, Lukodi, and Abok internally displaced people's camp (IDP camp) in Northern Uganda between October 2003 and June 2004 for which, among other charges, he is going to stand trial at the International Criminal Court (ICC) in The Hague, The Netherlands. Ongwen's abduction and his subsequent career in the LRA raise the question of where the boundary lies between being a victim and being a perpetrator. To analyse this question, three subsidiary questions are evaluated in this thesis. First, how is the question of where the boundary lies between being a victim and being a perpetrator discussed in academic theory? Second, how does theory square with reality? Furthermore, his abduction as a child and his alleged position as a commander as an adult make Ongwen a victim-perpetrator. This raises the third subsidiary question, namely how the international criminal justice system deals with victim-perpetrators. No consensus exists in perpetrator research on how and why ordinary people turn into perpetrators. With the inclusion of victim-perpetrators and child soldiers in the discussion, the questions asked and the answers provided became more complex and scholarship has moved further away from reaching a consensus on where the boundary lies between being a victim and being a perpetrator. Furthermore, even though the reality of the LRA conflict explains how victim-perpetrators are created and what their role is in the conflict, the analysis of Ongwen's career in the LRA does not allow to pinpoint the boundary between being a victim and being a perpetrator. Moreover, the international criminal justice system is designed for cases where a strict division exists between the victim and the perpetrator. The law-makers ignored the possibility of victim-perpetrators entirely. Consequently, the ICC cannot make use of existing theory to know how to deal with victim-perpetrators. Thus, the parties and participants disagree on if and how Ongwen's victim-perpetrator status should be considered in his trial. This thesis concludes that neither the theory presented in academic literature, nor the reality of the LRA conflict, nor the international criminal justice system have provided an answer to the question where the boundary lies between being a victim and being a perpetrator. However, the upcoming trial against Dominic Ongwen has the possibility to advance the field of study.

Table of contents

1. Introduction ...... 1

2. Theory ...... 5

2.1 Current Perpetrator Research ...... 5

2.2 The Position of Child Soldiers in Theory ...... 13

2.3 Victim-perpetrators in Research ...... 17

2.4 Child Soldiers as Victim-Perpetrators ...... 23

2.5 Intermediary Conclusion ...... 26

3. The Lord’s Resistance Army ...... 27

3.1 The Historical Background of the Conflict ...... 27

3.1.1 Origins of the Conflict ...... 27

3.1.2 Referral to the International Criminal Court ...... 30

3.2 The Organisational Structure of the LRA ...... 31

3.2.1 Composition of the LRA ...... 31

3.2.2 Organisational Structure and Ranks ...... 32

3.3 Child Soldiers in the LRA ...... 35

3.4 Dominic Ongwen in the LRA ...... 40

3.5 Intermediary Conclusion ...... 45

4. The International Criminal Court ...... 46

4.1 Introduction of the ICC ...... 46

4.2 The Protection of Child Soldiers by the ICC ...... 47

4.2.1 Protection of Children in International Law ...... 47

4.2.2 Crime of Recruitment and Use of Child Soldiers in the Rome Statute ...... 49

4.2.3 Protection from being prosecuted as child soldier by the ICC ...... 53

4.3 Lubanga and Ntaganda and their Use of Child Soldiers ...... 54

4.3.1. Introduction ...... 54

4.3.2. Thomas Lubanga Dyilo ...... 54

4.3.3 Bosco Ntaganda ...... 57 4.4 Dominic Ongwen at the ICC ...... 59

4.5 The Issue of Victim-Perpetrators at the ICC ...... 62

4.6 Intermediary Conclusion ...... 70

5. Conclusion ...... 72

6. Bibliography ...... 74

6.1. Primary Sources ...... 74

6.2. Literature ...... 76

6.3. Websites ...... 80

When Victims Become Perpetrators

The Prosecution of Victim-Perpetrators and the Case of Dominic Ongwen

1. Introduction On 26 January 2015 a middle-aged man, flanked by two guards, limped into the courtroom II of the International Criminal Court (ICC) in The Hague, The Netherlands. He appeared to feel out of place in the courtroom thousands of kilometres away from his native Uganda, probably wearing a suit and tie for the first time in his life. On that day the alleged former Lord's Resistance Army (LRA) rebel commander Dominic Ongwen made his first appearance before the ICC, which had issued a warrant of arrest for him nearly ten years earlier for crimes against humanity and war crimes.1 Ongwen was accused of no less than 70 criminal charges,2 the most ever in an international criminal trial.3 However, even though Ongwen was allegedly one of the highest ranking LRA commanders at the time of his surrender to Central African Republic troops,4 he had not voluntarily joined the rebel organisation. In the 1980s, Ongwen was abducted by LRA rebels on his way to school as a boy aged between ten5 and fourteen.6 After being initiated and indoctrinated into the LRA,7 Ongwen rose through the ranks until he reportedly obtained the rank of a brigadier general and became the commander of the so- called Sinia brigade,8 one of four operational brigades of the LRA.9 Holocaust historian Raul Hilberg divided the people who experienced the Holocaust in Europe between 1940 and 1945 into three groups - perpetrators, victims and bystanders.10 However, writer and Holocaust survivor Primo Levi pointed out that these categories are not always clear-cut.11 He introduced the concept of the gray zone, which describes the unclear moral boundaries between victims and perpetrators.12 The study of child soldiers confirms the

1 International Criminal Court (ICC), Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Case Information Sheet (Case no. ICC-02/04-01/15: The Hague, 2016). 2 International Criminal Court (ICC), Office of the Prosecutor (OTP), Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges (Case no. ICC-02/04-01/15: The Hague, 21 December 2015). 3 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016 (Case no. ICC-02/04- 01/15: The Hague, 25 January 2016), 47. 4 BBC, ‘LRA Rebel Dominic Ongwen Surrenders to US Forces in CAR’, BBC News, 7 January 2015, accessed 24 June 2016, http://www.bbc.com/news/world-africa-30705649. 5 Erin K. Baines, ‘Complex Political Perpetrators : Reflections on Dominic Ongwen’, The Journal of Modern African Studies 47, no. 2 (2009): 163. 6 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016 (Case no. ICC-02/04- 01/15: The Hague, 21 January 2016), 19. 7 Baines, ‘Complex Political Perpetrators’, 170. 8 International Criminal Court (ICC), Office of the Prosecutor (OTP), Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Pre-Confirmation Brief, 21st December 2015, ICC-2/04-01/15-375-Conf AnxC, (Case no. ICC-02/04-01/15: The Hague, 21 December 2015), 48–49. 9 Ibid., 40. 10 Raul Hilberg, Perpetrators, Victims, Bystanders: The Jewish Catastrophe, 1933-1945 (New York: HarperCollins, 1993), ix. 11 Primo Levi, The Drowned and the Saved (New York: Vintage International, 1989), 36–69. 12 Jens Meierhenrich, ed., Genocide: A Reader (New York, NY: Oxford University Press, 2014), 369. 1 existence of the gray zone. Although the predominant view is that child soldiers are innocent victims of their adult abductors,13 the case of Dominic Ongwen shows that the same person can be a victim as well as a perpetrator.14 For the purpose of this thesis, a perpetrator is an individual who committed an international crime and a victim is defined as an individual who was negatively affected by an international crime. Therefore, the term victim-perpetrator is used to describe a victim of an international crime, who turned into a perpetrator of an international crime. Dominic Ongwen's story is far from unique and stands as an example for the growing number of children abducted and forced to become child soldiers.15 Yet, "Ongwen is the first known person to be charged [by an international criminal jurisdiction] with the war crimes of which he is also a victim"16 and therefore Ongwen's appearance and future trial before the ICC raise a number of pertinent questions. Is a child soldier turned commander a victim, perpetrator or victim-perpetrator? When does a victim turn into a perpetrator? And can and should an international criminal court attempt to prosecute a victim-perpetrator? Consequently, the main research question of this thesis is "where lies the boundary between being a victim and being a perpetrator?" This thesis analyses perpetrators of international crimes, such as genocide, crimes against humanity and war crimes, who have been victims of the same crimes they perpetrated later on in their lives. The main focus lies on abducted children who were forced to become child soldiers and then became rebel commanders, which themselves ordered the abduction of children. The first subsidiary question of this thesis is "how has the main research question been discussed in academic theory?" Chapter two is going to look at the existing literature on perpetrators and analyse whether scholars have written about victim-perpetrators and what their conclusions are. The second subsidiary question is "to what extent does the theory square with reality?" To answer this question, chapter three analyses the conflict between the LRA and the Ugandan government between 1986 and the present. It analyses when and how victim-perpetrators are created and what their role is in the conflict. The last subsidiary question is "how does the international criminal justice system deal with victim-perpetrators?" Chapter four replies to this question by studying the ICC cases against the Congolese and Rwandese militiamen Thomas Lubanga Dyilo and Bosco Ntaganda who are both accused - and in the case of Lubanga convicted - for the enlistment, conscription and use of child soldiers under the age of

13 Mark A. Drumbl, Reimagining Child Soldiers in International Law and Policy (Oxford University Press, 2012), 7. 14 Baines, ‘Complex Political Perpetrators’, 163–77. 15 Ibid., 164. 16 Ibidem. 2 fifteen years.17 Furthermore, Chapter 4.5 monitors the argumentation of the prosecution, defence, the legal representative of victims and the judges concerning Dominic Ongwen's victim-perpetrator status in his confirmation of charges hearing18 between the 21 and 27 January 2016, which I have attended.19 Knowing where the boundary lies between being a victim and being a perpetrator is not only relevant in theory, but also in reality. The research contained in this thesis allows to move away from the dominant view of the child soldier as a faultless, passive victim20 and to advance the theoretical discussion on child soldiers by acknowledging the complexities of child soldiering and by varying the picture painted of child soldiers. In addition, law professor Marc Drumbl pointed out that the dominant view on child soldiers also informs policy decisions of international and intergovernmental organisations and influences the emergence of international law.21 Therefore, a more nuanced view of child soldiers would lead to a better informed and more nuanced policy responses and to more nuanced applications of international law, which surpasses the victim-perpetrator dichotomy. Furthermore, comprehending where a person stops being a victim and starts being a perpetrator and vice versa allows the parties and participants at the International Criminal Court (ICC) to make more intricate arguments, which reflect the complexities of reality more closely. The methodology used in this thesis is interdisciplinary, using history, law and political science. The method of analysis is a content analysis based on primary and secondary sources. The primary sources were produced during the confirmation of charges hearing in the ICC's case against Dominic Ongwen and consist of the Document Containing the Charges,22 the pre-confirmation briefs written by the prosecution,23 the defence24 and the legal

17 International Criminal Court (ICC), Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet (Case no. ICC-01/04-01/06: The Hague, 2016); International Criminal Court (ICC), Situation in the Democratic Republic of the Congo. Prosecutor v. Bosco Ntaganda: Case Information Sheet (Case no. ICC-01/04-02/06: The Hague, 2015). 18 The purpose of the confirmation of charges hearing is to determine whether the case as presented by the Prosecutor is sufficiently established to warrant a full trial. The Rome Statute of the ICC mandates that this is decided by answering the question whether there are substantial grounds to believe that the person committed the crimes charged. (Decision on the confirmation of charges against Dominic Ongwen, p. 8) 19 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen (Case no. ICC-02/04- 01/15: The Hague, 23 March 2016), 7. 20 Drumbl, Reimagining Child Soldiers in International Law and Policy, 7. 21 Ibid., 9. 22 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges. 23 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Pre-Confirmation Brief, 21st December 2015, ICC-2/04-01/15-375-Conf AnxC. 24 International Criminal Court (ICC), Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016 (Case no. ICC-02/04-01/15: The Hague, 3 March 2016). 3 representatives of the victims,25 the court transcripts of the confirmation of charges hearing26 and the judges' decision on the confirmation of the charges.27 Furthermore, the primary sources also include the personal observations I made while attending the confirmation of charges hearing in person on the 21, 22, 25 and 26 January 2016 at the International Criminal Court in The Hague, The Netherlands. However, this thesis has limitations. First, I was unable to attend the totality of the confirmation of charges hearing in person and did not attend the confirmation of charges on 27 January 2016. Therefore, I have based my analysis of the happenings in the courtroom that day exclusively on the transcript of the hearing. Moreover, an important limitation concerning the second chapter is that the majority of the literature analysed is based on cases other than the Ongwen case. Literature on Ongwen is still limited, even though his case is increasingly recognised. In addition, this thesis offers generalisations and possible explanations which are based entirely on the one single case of Dominic Ongwen. The general applicability of the findings might, therefore, be limited. Furthermore, at the time of writing, Ongwen's trial has not yet started. It is scheduled to begin in December 2016. Therefore, the analysis of this thesis is exclusively based on the limited amount of sources produced before and during the confirmation of charges hearing. The vast amount of sources which will be produced during the trial phase are missing.

25 International Criminal Court (ICC), Victims’ Legal Representatives, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwe: Victims’ Pre-Confirmation Brief (Case no. ICC-02/04-01/15: The Hague,18 January 2016). 26 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016; International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016 (Case no. ICC-02/04-01/15: The Hague, 22 January 2016); ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016; International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 26 January 2016 (Case no. ICC-02/04-01/15: The Hague, 26 January 2016); International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 27 January 2016 (Case no. ICC-02/04-01/15: The Hague, 27 January 2016). 27 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen. 4

2. Theory

2.1 Current Perpetrator Research After the end of the Second World War in 1945 mental health professionals, such as psychiatrist Douglas M. Kelley, clinical psychologist Molly Harrower, psychologists Eric A. Zillmer, Barry A. Ritzler or Robert P. Archer analysed whether the Nazi perpetrators were evil monsters and sadists. However, they came to the conclusion that the majority of perpetrators of international crimes, such as genocide, war crimes and crimes against humanity,28 are normal people and do not carry any particular vicious character traits.29 Among the first scholars to take this position was philosopher and political theorist Hannah Arendt in her five articles published in the New Yorker in 1963,30 on which she based her book Eichmann in Jerusalem.31 Adolf Eichmann had been the Expert on Jewish questions in the Sicherheitsdienst, or S.D. (Security Service of the Reichsführer S.S.),32 and in this position he organized and oversaw the forced emigration of the European Jews between 1938 and 194133 and the deportation of the remaining Jews to death camps between 1942 and 1944.34 After being abducted from his hideout in Argentina in May 1960, Eichmann was brought to trial before the District Court of Jerusalem in April 1961.35 Arendt attended a part of his trial in Israel.36 She described that Eichmann had been normal while committing the crimes, but also while on trial.37 She wrote that "[h]alf a dozen psychiatrists had certified him as 'normal' - 'More normal, at any rate, than I am after having examined him,' one of them was said to have exclaimed."38 This assessment resulted in the birth of the concept of "the banality of evil", which was the subtitle of her book. Yet, Arendt never mentioned the concept in her original articles39 and she did not develop a definition of the banality of evil in her book.40

28 James Waller, Becoming Evil: How Ordinary People Commit Genocide and Mass Killing (New York: Oxford University Press, 2002), 56. 29 Ibid., 59–67. 30 Hannah Arendt, ‘Eichmann in Jerusalem - I’, The New Yorker, 16 February 1963; Hannah Arendt, ‘Eichmann in Jerusalem - II’, The New Yorker, 23 February 1963; Hannah Arendt, ‘Eichmann in Jerusalem - III’, The New Yorker, 2 March 1963; Hannah Arendt, ‘Eichmann in Jerusalem - IV’, The New Yorker, 9 March 1963; Hannah Arendt, ‘Eichmann in Jerusalem - V’, The New Yorker, 16 March 1963. 31 Hannah Arendt, Eichmann in Jerusalem : A Report on the Banality of Evil, Rev. and enlarged ed, Penguin Twentieth-Century Classics (Harmondsworth etc: Penguin, 1994), xi–xii. 32 District Court of Jerusalem, Judgement against Adolf Eichmann (Case no. 40/61: Jerusalem, 11 December 1961), para. 61. 33 Ibid., para. 63–78. 34 Ibid., para. 90–112. 35 Arendt, ‘Eichmann in Jerusalem - I’, 56. 36 Arendt, Eichmann in Jerusalem, xi. 37 Arendt, ‘Eichmann in Jerusalem - I’, 64–70. 38 Arendt, Eichmann in Jerusalem, 67. 39 Waller, Becoming Evil, 96. 5

Only a number of years after the publication of the book, Arendt explained that with the "banality of evil" she had actually meant the banality of evildoers and that she had not intended to say that the evil is mundane, but that the individuals committing the evil were not monsters, but normal, banal individuals.

" I spoke of 'the banality of evil' and meant with this no theory or doctrine but something quite factual, the phenomenon of evil deeds, committed on a gigantic scale, which could not be traced to any particularity of wickedness, pathology, or ideological conviction of the doer, whose only personal distinction was perhaps extraordinary shallowness. However monstrous the deeds were, the doer was neither monstrous not demonic, and the only specific characteristic one could detect in his past as well as in his behavior during the trial and the preceding police examination was something entirely negative: it was not stupidity but a curious, quite authentic inability to think."41

By the "banality of evil" Arendt meant therefore that Eichmann was not a monster as many assumed he must have been, but an ordinary individual, just like anybody else. He did not possess any specific characteristics which made him different from the majority of the population.42 However, Arendt has been criticized for the limited scope of her observation. She offered generalisations about perpetrators and the nature of evil based on attending parts of one single trial.43 Therefore, her articles and her book have to be considered an interesting observation, but cannot be regarded as a thought-out research based on a representative amount of sources. Furthermore, the French historian and political scientist Jacques Sémelin judged that her conclusion is not applicable to the Einsatzgruppen in Poland, the Interahamwe in Rwanda and the paramilitary groups in Bosnia44 and calls her "a prisoner of her observation method."45 Arendt observed a desk perpetrator who did not participate directly in the killing. The Einsatzgruppen, the Interahamwe and the paramilitary groups, on the other hand, were at the forefront of the bloodshed. Therefore, Sémelin stated that Arendt's observations were not applicable to groups, who were directly involved in murder.

40 Jacques Sémelin, Purify and Destroy: The Political Uses of Massacre and Genocide (London: Hurst & Company, 2013), 286. 41 Hannah Arendt, ‘Thinking and Moral Considerations: A Lecture’, Social Research 51, no. 1/2 (1984): 7. 42 Sémelin, Purify and Destroy, 287. 43 Ibid., 285–88. 44 Ibid., 285. 45 Ibid., 288. 6

Stanley Milgram, a psychologist at Yale University, was another observer of the Eichmann trial.46 Hearing Eichmann continuously repeat that he only followed orders was the inspiration for what was to become known as the "Milgram experiment". Wanting to find out which factors influence a person to be more or less obedient,47 Milgram designed an experiment where a volunteer in the role of a teacher had to read out a list of words to a learner, who was sitting in a different room. The learner had to memorize the words and repeat them in the right order. Whenever the learner made a mistake, the teacher had to attribute an electric shock, which would increase in strength with each mistake, to the learner. With the increasing voltage of the shocks the learner simulated increasing pain. However, although Milgram aimed to measure an individual's propensity to obey authority, the volunteer had been told that it was an experiment designed to analyse the role of punishment on memorization. Moreover, the volunteer did not know that the learner was an actor and that the electroshocks were in reality not attributed.48 The general expectation had been that individuals would refuse to attribute the shocks if it went against their conscience. Yet, two- thirds of the individuals did obey the orders and "shocked" the learner with the highest - and in reality deadly - voltage.49 Milgram interpreted the result as an indication that a majority of people tends to obey authority figures50 and authors such as the Dutch sociologist and psychotherapist Abram de Swaan came to the conclusion that the majority of people would thus commit atrocities if ordered to do so.51 However, De Swaan also criticised Milgram for ignoring the acts of disobedience.52 According to De Swaan, as different individuals made different decisions in the same situation, the experiment also showed that the personal disposition influences a person's action.53 Furthermore, Milgram seemed to assume that different people in different cultural settings and different periods of time react alike to authority.54 However, it is highly questionable if students in the USA in the 1960s reacted the same way to authority than child soldiers in Uganda in the years 2000 would. It is naive to believe that the same experiment would produce the exact same result fifty years later in a different cultural setting.

46 Alette Smeulers and Fred Grünfeld, International Crimes and Other Gross Human Rights Violations: A Multi- and Interdisciplinary Textbook (Martinus Nijhoff Publishers, 2011), 211. 47 Stanley Milgram, ‘Behavioral Study of Obedience’, The Journal of Abnormal and Social Psychology 67, no. 4 (1963): 372. 48 Ibid., 372–74. 49 Ibid., 375. 50 Ibid., 376. 51 Abram de Swaan, The Killing Compartments: The Mentality of Mass Murder (New Haven: Yale University Press, 2015), 25–26. 52 Ibid., 24. 53 Ibid., 25. 54 Milgram, ‘Behavioral Study of Obedience’, 376. 7

In 1971, Philip Zimbardo, professor of psychology at Stanford University, developed the famous experiment studying the dynamics between prisoners and guards - The Stanford Prison Experiment. In the basement of Stanford University, he set up a mock prison and randomly assigned a group of student volunteers to be either prisoners or guards.55 After a few days, the students began to identify and conform increasingly with their roles. The guards became more brutal and the prisoners more passive. In the end, Zimbardo decided to stop the experiment early before it got out of hand.56 The experiment led to two main findings. First, the experiment revealed that individuals, who had not shown any sadistic tendencies at the beginning of the experiment, became increasingly sadistic as the experiment went on.57 Second, Zimbardo concluded that the prisoners' and guards' behaviour was a product of their environment and that therefore any human being in the right situational circumstances is capable of committing evil deeds.58 After the Stanford Prison Experiment, perpetrator research was at a near complete standstil for almost twenty years until Christopher R. Browning published his book Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland in 1992.59 He based his research on the indictments and interrogation protocols of 125 members of the Reserve Battalion 101, a unit of the German Order Police, which were stored in the Agency for the State Administrations of Justice (Zentrale Stelle der Landesjustizverwaltung) in Ludwigsburg.60 Battalion 101 had participated in the deportation of 45 000 Jews to Treblinka and in the shooting of 38 000 Jews61 in Poland during the Second World War in Europe.62 By analysing the composition of Battalion 101 Browning concluded that its members were not specially selected for the task which lay ahead of them. Rather, they were representative of the German male manpower available at that stage of the war.63 The members of Battalion 101 were "middle-aged, mostly working-class, from Hamburg,"64 which is one of the least Nazified cities in Germany.65 Therefore, Browning asserted, they were not chosen because of

55 Craig Haney, Curtis Banks, and Philip G. Zimbardo, ‘A Study of Prisoners and Guards in a Simulated Prison’, Naval Research Review, no. 30 (1973): 4. 56 Ibid., 9–10. 57 Ibid., 10–11. 58 Thomas Blass, ed., Obedience to Authority: Current Perspectives on the Milgram Paradigm (Mahwah, NJ: Erlbaum, 2000), 206. 59 Christopher R. Browning, Ordinary Men: Reserve Police Battalion 11 and the Final Solution in Poland: Reserve Police Battalion 101 and the Final Solution in Poland, New Ed (London: Penguin, 2001). 60 Ibid., xiv–xvi. 61 Ibid., 142. 62 Ibid., xiv. 63 Ibid., 165. 64 Ibid., 164. 65 Ibid., 48. 8 their anti-Semitism.66 However, Browning's fascination with the Battalion 101 resulted from the fact that the Battalion commander Major Trapp offered the men the possibility to opt out and not participate in the shooting of the Jews before their first shooting mission at Józefów on 13 July 1942.67 Yet, only between ten and twenty percent of men of Battalion 101 accepted 68 the offer. Browning subsequently investigated, through the court records produced years after the event,69 the reasons for the majority of the policemen to participate in the shooting70. He concluded that it was the policemen's strive for conformity and peer pressure which informed their decision to participate in the killing.71 Browning's work has been heavily criticised by the American sociologist and political scientist Daniel Goldhagen. In 1996, Goldhagen published his book Hitler's Willing Executioners: Ordinary Germans and the Holocaust in reply to Browning's Ordinary Men.72 Goldhagen criticised Browning for ignoring the Reserve Police Battalion 101 men's anti- Semitism. According to Goldhagen, the explanation for the men becoming mass murderers lies in a specifically German characteristic of the men, namely in the eliminationist anti- Semitism, which Goldhagen claimed was a cultural norm in the German society at the time.73 Goldhagen denied that bowing to peer pressure and striving for conformity, which are traits common to most human beings, not just Germans, resulted in the men of Battalion 101 committing mass murder.74 Therefore, he insisted that the men of Battalion 101 were not ordinary men, but ordinary Germans.75 Other scholars such as sociologist Michael Mann and Abram de Swaan also stated that the members of Battalion 101 understated their anti-Semitic conviction in the judicial interrogations in order to paint a more positive picture of themselves, but Mann and De Swaan do not come to the same radical conclusion as Goldhagen.76 The Dutch criminologist Alette Smeulers is well-known for her typology of perpetrators, which she published in her 2008 book Supranational Criminology: Towards a

66 Ibid., 176–84. 67 Ibid., 1–2. 68 Ibid., 159. 69 Ibid., xiv–xvi. 70 Ibid., 159–89. 71 Ibid., 184. 72 Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (London: Little, Brown and Company, 1996). 73 Daniel Jonah Goldhagen et al., ‘The “Willing executioners”/ “Ordinary Men” Debate’ (Washington D.C.: United States Holocaust Memorial Museum, 8 April 1996), 10–12. 74 Goldhagen, Hitler’s Willing Executioners, 12. 75 Ibid., 5–9. 76 Sémelin, Purify and Destroy, 246–47; Swaan, The Killing Compartments, 36. 9

Typology of International Crime.77 While researching perpetrators of international crimes Smeulers realized that individuals participate in crimes in different ways and for different reasons. Consequently, her goal became to propose an all-encompassing typology of perpetrators78 in order to reveal the differences between perpetrators, but also to advance the research on the question of how ordinary people turn into perpetrators.79 Smeuler's analysis resulted in nine different categories of perpetrators.80 The first perpetrator type is the criminal masterminds. They are the powerful, often charismatic central leaders, who incite their followers to commit crimes. Furthermore, the criminal masterminds are often manipulative, arrogant and refuse to listen to criticism, because they believe that they do not make any mistakes.81 The second type of perpetrators are the fanatics. They blame a social group for their hardship and are motivated to commit crimes by hatred, contempt and resentment for that group. The fanatics are often inspired by a fundamentalist ideology. As this second perpetrator type is completely persuaded to support the right cause, they will move heaven and earth to achieve their goal and they are even prepared to die to accomplish their mission. This willingness to do anything to reach their goal makes fanatic perpetrators especially unpredictable.82 The criminals or sadists is the third perpetrator type. The criminals have already committed domestic crimes before the outbreak of mass violence or have shown sadistic tendencies and will, therefore, transition into committing international crimes with ease. However, the criminals only benefit the organisation to a limited degree, because they lack loyalty and discipline and it is thus difficult for the organisation to control them. This perpetrator type always remains a minority among perpetrators.83 The perpetrator type number four is the profiteers. They seize the opportunity to commit a crime in order obtain material goods. The profiteers are motivated by self-interest and greed and see the commission of a crime as a possibility to enrich themselves.84 The careerists, which is the fifth perpetrator type, see the participation in international crimes as a means of advancing their careers. This type's goal is to rise to a better position and gain power. Careerists are law- abiding citizen before the period of collective violence and often ignore the violence around them to continue their life as before. They rarely directly commit the crimes themselves, but

77 Alette Smeulers and Roelof Haveman, eds., Supranational Criminology: Towards a Criminology of International Crimes (Antwerp: Intersentia, 2008), 233–65. 78 Ibid., 240. 79 Ibid., 243. 80 Ibid., 244–63. 81 Ibid., 244–45. 82 Ibid., 246. 83 Ibid., 247–58. 84 Ibid., 249–50. 10 are the organisers behind the crimes.85 The sixth group of perpetrators identified by Smeulers is the devoted warriors. As the devoted warriors strongly believe in the predominant ideology and believe that their actions are legitimate, they are the obedient and loyal supporters of the leader and follow him blindly. They do not question the leader or the ideology and are highly responsible, which makes them ideal state officials.86 The followers and conformists is another type of perpetrator in Smeulers' typology. They go along with the group and bow to peer pressure. The followers assume that their superiors are righteous and feel that they do not have to take responsibility for their actions, because they merely follow their superiors' orders. Smeulers further subdivided the followers or conformists into the subtypes of the obedient followers, the naïve followers and the admirers.87 The compromised perpetrators commit international crimes because they are forced or threatened to do it. They do not agree with the commission of the crimes, but feel that they have no choice but to participate.88 The last type of perpetrators is the professionals. They are generally members of the police, military or the secret service and are trained to be perpetrators. During the training, the professionals are brutalised and taught to strictly obey hierarchies. The aim of the training is to destroy the professionals' personalities and rebuild them as torturers and killers by making them get accustomed to the violence.89 However, Smeulers noted that perpetrators can be motivated by more than one factor. Perpetrators can therefore fall into more than one type or change types when they change their predominant motivation.90 Whereas other scholars have concentrated their research on perpetrators in a specific situation, in a specific time periods or on a specific type of perpetrators, Smeulers aimed to establish an overarching typology of perpetrators.91 However, Smeulers based her analysis on the research of other scholars.92 She did not produce her own sources and she did not test her hypothesis on cases in the field. Furthermore, Smeulers' aim was to create a general typology of perpetrators, but she based her typology on only eight existing typologies.93 This number is too limited to be able to make a representative generalisation.

85 Ibid., 250–51. 86 Ibid., 254. 87 Ibid., 254–56. 88 Ibid., 257–58. 89 Ibid., 258–60. 90 Ibid., 264. 91 Ibid., 240. 92 Ibidem. 93 Ibid., 241–43. 11

The Killing Compartments: The Mentality of Mass Murder was published in 2015 by the Dutch sociologist and psychotherapist Abram de Swaan.94 He remarked that the "[p]revailing opinion has it that the genocidaires are just ordinary people who are brought to commit mass murder because of the situation they find themselves in, regardless of their personal makeup. In the starkest terms what counts is 'situation, not disposition'."95 However, De Swaan disagreed with the dominant opinion. He argued that even though the situation influences the decisions and behaviour of an individual, the personal disposition also plays an important role.96 Therefore, De Swaan asked if perpetrators possess characteristics which increase their probability of becoming mass murderers.97 He came to the conclusion that a restricted moral consciousness, a low sense of agency and reduced empathy are the three characteristics which increase the likelihood of becoming a perpetrator.98 However, the lack of compassion is the most noticeable characteristic.99 De Swaan explained that the lack of empathy results from a process of dysmentalization.100 He defined dysmentalization as "a regression to a condition marked by (1) weakened superego functions, allowing only for compliance to authority figures and loyalty to immediate peers and close relatives; (2) a lowered sense of personal responsibility; and (3) an absence of empathy for anybody who is not very close."101 It is, therefore, the process of dysmentalization in situations of collective violence which results in reduced empathy for the victims and this facilitates the act of perpetration.102 Yet, Abram de Swaan has established his theory by studying documents on perpetrators. He has not produced his own sources by interviewing perpetrators, such as former Rwandan génocidaires, and consequently, he has not tested his theory by applying it to living perpetrators. Therefore, it is unclear if his theory would pass this test. The books discussed here analysed how and why an ordinary person turns into a perpetrator. However, they did not consider how a person, who is already a victim of a crime, turns into a perpetrator of the same crime. Thus, they did not research victim-perpetrators. Furthermore, the authors did not assess where the boundary lies between being a victim and being a perpetrator. This thesis tries to fill this gap in scholarship.

94 Swaan, The Killing Compartments. 95 Ibid., 203. 96 Ibid., 23–39. 97 Ibid., 225. 98 Ibid., 247. 99 Ibid., 230. 100 Ibid., 236. 101 Ibid., 250. 102 Ibid., 239. 12

2.2 The Position of Child Soldiers in Theory The Rome of Statute of the International Criminal Court (ICC) is the first treaty to explicitly criminalise the enlistment, conscription and use of child soldiers as war crimes in its Article 8.103 The ICC prohibits the conscription or enlisting of children under the age of fifteen years into the national armed forces, into armed forces or groups or using them to participate actively in hostilities. Therefore, according to the ICC, a child soldier is defined as a person younger than fifteen years old who is part of a national armed force, an armed force or groups or a person under the age of fifteen who participates actively in hostilities.104 This definition and the protection of children in international law are discussed in more detail in Chapter 4.2. Children become part of armed forces or armed groups in three ways. First, children are abducted and forced to join the group or they are forced to conscript by threat. Second, children join voluntarily and become enlisted. Third, children are born into the organisation and grow up as child soldiers.105 The dominant image of child soldiers in the international discourse is the image of the child soldier as a faultless passive victim. International non-governmental organisations (NGOs), United Nations (UN) agencies, academics and journalists have all internalised this image.106 They explain that former child soldiers are not responsible for the crimes they committed 107 because they were incapable or too immature to understand the consequences of their actions and were unable to protect themselves from getting used by adults to commit crimes.108 "Child perpetrators are [...] victims of criminal policies for which adults are primarily responsible," wrote UNICEF in a 2002 report.109 The image of the child soldier as a faultless passive victim has also become firmly established in international humanitarian law and policy.110 Consequently, international criminal tribunals prosecute only the leaders who abducted children.111 The child soldiers themselves are not be punished 112 because they were indoctrinated and then forced by adult commanders to commit crimes and were often under

103 Roman Graf, ‘The International Criminal Court and Child Soldiers’, Journal of International Criminal Justice 10, no. 4 (2012): 953. 104 UNGA, Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 1 July 2002, Art. 8 (2)(b)(xxvi) and (2)(e)(vii). 105 Drumbl, Reimagining Child Soldiers in International Law and Policy, 13. 106 Ibid., 8. 107 Ibid., 37–40. 108 Ibid., 81. 109 No Peace Without Justice and UNICEF Innocenti Research Centre, ‘International Criminal Justice and Children’ (Rome, September 2002), 34. 110 Drumbl, Reimagining Child Soldiers in International Law and Policy, 8–9. 111 Ibid., 18. 112 Ibidem. 13 the influence of alcohol and drugs when they committed their crimes.113 The jurisdiction of the Special Tribunal for Sierra Leone included children between the ages of fifteen and eighteen, but the prosecutor, David Crane decided to exclude former child soldiers from prosecution.114

The Prosecution decided early in developing a prosecutorial plan that no child between 15 and 18 had the sufficiently blameworthy state of mind to commit war crimes in a conflict setting. Aware of the clear legal standard highlighted in international humanitarian law, the intent in choosing not to prosecute was to rehabilitate and reintegrate this lost generation back into society.115

Several renowned scholars support the view of child soldiers as innocent victims. Rtd. General-Major Roméo Dallaire portrayed child soldiers in They Fight Like Soldiers, They Die Like Children as passive tools which are used by commanders without the children having the ability to influence their destiny. "Quickly my research began to focus on children being used as weapons of war. Tools used by adults to wage war. Much like a soldier would use his gun or grenade, the child had become another weapon in their repertoire," he wrote.116 Sonja C. Grover, professor of education at Lakehead University in Canada, argued that child soldiers need to be treated as victims of genocide because they were transferred from one group to another which is a crime under the 1948 Genocide Convention.117

"It is here argued […] that in fact these children –whether under and over 15- as: (1) they have been ‘recruited’ (based on an exploitation of their coercive circumstances and/or the use of force) in large part for the purpose of committing atrocity and (2) because their ties to their home communities are broken due to the conflict-related atrocities they have committed; are the victims of genocidal forcible transfer to another group as defined in the 1951 Genocide

Convention. It is here contended then that child soldier members of genocidal State or non-State armed units or such units committing mass atrocity are

113 Ibid., 15. 114 David Crane, ‘Prosecuting Children in Times of Conflict: The West African Experience’, Human Rights Brief 15, no. 3 (2008): 14–15. 115 Ibid., 15. 116 Roméo A. Dallaire, They Fight like Soldiers, They Die like Children: The Global Quest to Eradicate the Use of Child Soldiers (New York, NY: Walker, 2011), 12. 117 Sonja C. Grover, Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged With Grave Conflict-Related International Crimes, 2012th ed. (Heidelberg ; New York: Springer, 2012), 51. 14

operating under duress and are in fact in a position of slavery or slave-like conditions as victims of genocidal forcible transfer to the murderous armed non- State group or State armed force. To charge these children (including youth) for any conflict-related international crimes they may have committed […]is to prosecute the child for doing the ‘labor’ (a worst form of child labor according

to the International Labor Organization) from which they were entitled under international law to have been protected by the State and the international community in the first instance."118

Consequently, the child soldier does not carry any responsibility for the crimes he committed. He is a victim of the genocidal transfer and has been forced to commit atrocities.119 Grover's approach denies child soldiers any agency or scope for making their own decisions. Thus, according to her, child soldiers obey orders without questioning or resisting them. However, a number of scholars have advanced more nuanced images of child soldiers. Law professor Mark A. Drumbl challenged the faultless passive victim image120 and stated that major differences exist between individual child soldiers. While some child soldiers find ways to avoid having to commit crimes, such as refusing or lying to their superior, others willingly participate in atrocities.121 Therefore, Drumbl attributed more agency to child soldiers than the dominant image. He wrote that child soldiers keep some of their capacity to make decisions and judgements.122 In Reimagining Child Soldiers in International Law and Policy, Drumbl proposed the model of circumscribed action. According to this model, an actor has the possibility to take action, but also to decide against taking any action. Even though the actor is oppressed, he still has a range of decisions he can take. However, this range is limited by the environment in which the actor is. In this constraining environment, the actor can take short-term decisions. Furthermore, although other actors' decisions and actions affect them, they also have the power to affect others. The model of circumscribed action is a continuum which accounts for the difference in the histories and experiences of the actors.123 Therefore, a child soldier is according to this model constrained in, but not deprived of, his ability to make decisions.124 However, even though Drumbl opposed the image of the

118 Ibidem. 119 Ibidem. 120 Drumbl, Reimagining Child Soldiers in International Law and Policy, 11. 121 Ibid., 16. 122 Ibid., 94. 123 Ibid., 17. 124 Ibid., 99. 15 child soldier as a faultless and passive victim, he agreed that child soldiers should not be prosecuted for their crimes He believed this because he doubted that trials achieve the goals set for them, namely to rehabilitate child soldiers and to reintegrate them into society. Therefore, he argued that criminal prosecution is not suitable for child soldiers.125 Psychologist Jeannie Annan and economist Christopher Blattman also criticised the dominant view of child soldiers as too simplistic. From the survey of war-affected youth, they concluded that children abducted by the Lord's Resistance Army (LRA) retained some of their agency. After being abducted, at least fifty percent of the children remained with the LRA for some time out of their free will.126 Anthropologist Alcinda Honwana also argued that the child soldiers possess some agency.127 According to Drumbl, she defined agency as "the scope of discretion and influence available to a person in a subordinate social situation."128 However, Honwana distinguished tactical from strategic agency. Whereas tactical agency is the possibility "to cope with and maximize the concrete, immediate circumstances of the military environment in which [the child soldiers] operate,"129 strategic agency is the ability to make long-term decisions, because one is in a position of power.130 Honwana called tactical agency also the agency of the weak, because the individual exercising tactical agency is not in a position of power, but uses any power he or she can get in his position of weakness to turn it into agency.131 Child soldiers exercise tactical agency and therefore use the space and freedom ceded to them to control whatever aspect of their lives they can. Child soldiers talk about their former lives when nobody is listening, give their abductors false names and play stupid in order not to participate in military operations.132 They use any opportunity given to them to influence their life as much as possible in the short-term.133 Even though Honwana attributed tactical agency to child soldiers, she argued that they should not be prosecuted by courts.134 However, she spoke in favour of traditional purification and reintegration ceremonies.135

125 Ibid., 21. 126 Jeannie Annan, Christopher Blattman, and Roger Horton, ‘The State of Youth and Youth Protection in Northern Uganda: Findings from the Survey for War Affected Youth’ (UNICEF Uganda, September 2006), 60. 127 Alcinda Honwana, Child Soldiers in Africa, Ethnography of Political Violence (Philadelphia, PA: University of Pennsylvania Press, 2006), 4. 128 Drumbl, Reimagining Child Soldiers in International Law and Policy, 96. 129 Honwana, Child Soldiers in Africa, 71. 130 Baines, ‘Complex Political Perpetrators’, 180. 131 Drumbl, Reimagining Child Soldiers in International Law and Policy, 96. 132 Honwana, Child Soldiers in Africa, 71. 133 Drumbl, Reimagining Child Soldiers in International Law and Policy, 96. 134 Ibid., 97. 135 Honwana, Child Soldiers in Africa, 133–57. 16

In conclusion, half of the research on child soldiers used in chapter 2.2 has been based on theoretical considerations and half of it on field research. Blattmann and Annan have conducted their own field research. They are the authors of the Survey of War Affected Youth in Uganda. They conducted their research between 2005 and 2006 by collecting data from 11016 households and from 741 male youths on their well-being and on their abduction and experience in the LRA.136 Alcinda Honwana has also based her book on field research. She conducted her research on child soldiers in the civil wars in Angola and Mozambique.137 Roméo Dallaire has mostly drawn on his own experience with child soldiers while writing They Fight like Soldiers, They Die like Children.138 Drumbl's model of circumscribed action is not based on observations made in the field but is the result of theoretical observations.139 Drumbl and Grover focused their research on the international law concerned with child soldiers. Therefore, both authors based their analysis on law and policy documents and not on case studies in the field.140

2.3 Victim-perpetrators in Research In human rights discourse the concepts of the victim and the perpetrator are presented as directly opposed and distinct concepts, which do not overlap.141 The victim is defined as innocent, pure, morally superior and lacking any responsibility for his own victimization.142 The perpetrator, on the other hand, is thought to be guilty, impure and responsible.143 Therefore, if an individual is placed in one of the two groups, they are automatically associated with these characteristics.144 Furthermore, both groups are presented as being homogenous. One victim is thus exactly identical to any other victim and the same is valid for perpetrators.145 However, scholars increasingly rebel against this simplistic view. As Tristan Anne Borer, professor of government and international relations, stated,

"If truth is the first casualty of war, then complexity must surely be the second. In the midst of conflict, it is easier and more satisfying for people to think in

136 Tim Allen and Koen Vlassenroot, eds., The Lord’s Resistance Army: Myth and Reality (London: Zed Books, 2010), 133. 137 Honwana, Child Soldiers in Africa, 4. 138 Dallaire, They Fight like Soldiers They Die like Children, 15. 139 Drumbl, Reimagining Child Soldiers in International Law and Policy, 17. 140 Grover, Child Soldier Victims of Genocidal Forcible Transfer, vii–ix; Drumbl, Reimagining Child Soldiers in International Law and Policy, 6–25. 141 Tristan Anne Borer, ‘A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa’, Human Rights Quarterly 25, no. 4 (2003): 1088–89. 142 Erica Bouris, Complex Political Victims (Bloomfield, CT: Kumarian Pr Inc, 2007), 48. 143 Ibid., 32–48. 144 Ibid., 48. 145 Borer, ‘A Taxonomy of Victims and Perpetrators’, 1089. 17

terms of absolutes. People want to see things in terms of black and white, with little acknowledgment that there may, in fact, be many shades of gray. And so, under Apartheid, people were either victims or they were perpetrators, and the reality of a much more complex relationship between the two was buried."146

Borer pointed out, that in reality the victims and perpetrators are not distinct and separate, but sometimes victims are also perpetrators and perpetrators also victims. Among the first to recognize that victims and perpetrators cannot always be clearly distinguished and that the concepts overlap is the writer and Holocaust survivor Primo Levi. In his 1986 The Drowned and The Saved Levi pointed out that to disentangle the complexity of reality and to understand the world people tend to simplify reality and propose explicative theories. Only by simplifying the world around them are people able to understand it and decide on their actions.147 However, Levi acknowledged that the reality is not as simple as people wish it to be.148 In order to account for the complexity of reality, he formulated the concept of the "gray zone".149 In the German World War Two concentration camps two categories of prisoners existed, which cannot be clearly attributed to the category of victims or perpetrators - the Kapos (Kameradschaftspolizei or comrade police) and the Sonderkommandos (special units).150 The Kapos were prisoners who worked for the concentration camp administration in being part of the police force which controlled the concentration camp inmates.151 The Sonderkommandos were composed of inmates and their task was to empty the gas chambers and burn the bodies.152 The Kapos and the Sondercommandos consisted of prisoners, thus victims, but they worked for the Nazis, thus the perpetrators. They can, therefore, not be clearly assigned to the category of either victims or perpetrators. They inhabited the "gray zone" between victims and perpetrators.153 The "gray zone", therefore, describes the uncertain lines of the moral boundaries between concentration camp prisoners.154 Hannah Arendt criticized the Judenräte, or Jewish Councils, in Eichmann in Jerusalem. She accused them of supporting the destruction of their own people by composing

146 Ibid., 1116. 147 Levi, The Drowned and the Saved, 36. 148 Ibid., 36–37. 149 Ibid., 42. 150 Meierhenrich, Genocide, 369. 151 Ibidem. 152 Levi, The Drowned and the Saved, 50. 153 Ibid., 42; Meierhenrich, Genocide, 369. 154 Meierhenrich, Genocide, 369. 18 lists of persons and their wealth, by handing out the yellow Jewish stars and by handing over the property owned by Jews to the Nazis.155 Her writing on the Judenräte made emotions fly high and she was even accused of trying to erase the distinction between victims and perpetrators.156 However, the reactions to Arendt's criticism of the Judenräte need to be analysed in the light of Arendt questioning the innocence, purity and lack of moral responsibility of the victim. She contested the innocence of the Judenräte and thus the innocence of them as victims. Even though she did not use this exact term, she stated that the Judenräte were in fact not victims, but victim-perpetrators. The outraged reactions are therefore a result of her challenging the innocence of the victim.157 The concept of victim-perpetrator has been discussed by scholars from different disciplines such as law,158 criminology,159 sociology,160 international relations161 and transitional justice.162 Accordingly, various definitions of the concept exist and different terms are used to name the same or very similar concepts. The international studies scholar Erica Bouris introduced the concept of "complex political victim" to describe victims who carry some responsibility for their own victimization because they supported the perpetrator in their victimization.163 She used the example of Arendt's Judenräte, as discussed above, to illustrate her concept.164 Importantly she insisted that even though these victims carry a degree of responsibility for their victimization, they remain victims. Therefore, instead of being a pure and innocent victim, the complex political victim is an impure and partially guilty victim, but nonetheless a victim.165 Thus, in her discussion on complex political victims Bouris failed to break out of the categories of victim and perpetrator and remained inside the victim versus perpetrator dichotomy. Yet, her achievement was to notice that the category of the victim is not as homogeneous as thought until then,166 but she did not to bridge the gap between victims and perpetrators and excluded victim-perpetrators from the discussion.

155 Arendt, Eichmann in Jerusalem, 115. 156 Bouris, Complex Political Victims, 61. 157 Ibid., 10. 158 Luke Moffett, ‘Reparations for “Guilty Victims”: Navigating Complex Identities of Victim–Perpetrators in Reparation Mechanisms’, International Journal of Transitional Justice, 4 December 2015, 146–67; Abbe Smith, ‘The “monster” in All of Us: When Victims Become Perpetrators’, Suffolk University Law Review 38, no. 2 (2005): 367–94. 159 Smeulers and Haveman, Supranational Criminology, 257–58. 160 Marti Tamm Loring and Pati Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’, Journal of Emotional Abuse 2, no. 1 (2001): 3–14. 161 Baines, ‘Complex Political Perpetrators’. 162 Julie Bernath, ‘“Complex Political Victims” in the Aftermath of Mass Atrocity: Reflections on the Khmer Rouge Tribunal in Cambodia’ 10, no. 1 (2016): 46–66. 163 Bouris, Complex Political Victims, 10. 164 Ibid., 53–72. 165 Ibid., 90. 166 Ibid., 7–8. 19

Political scientist Erin Baines built on Bouris' complex political victim and presented the concept of the "complex political perpetrator."167 It describes girls and boys who grow up in an environment of constant crisis and who have reverted to violence to survive, but also prosper by using violence.168

"By becoming a perpetrator, a child or youth can gain some degree of control over his or her life. […] [T]he state is absent, unable to extend protection or provide basic goods or services to affected populations. In its absence, war opens spaces for social, economic and political innovation into which excluded children and youth can be either forced or willingly enter and become upwardly mobile."169

Baines maintained that the children either decide to voluntarily join a rebel group or that they are forced to do so. Once inside the organisation, the children use violence in order to secure wealth. Thus, violence becomes a political instrument in the hands of boys and girls who are excluded from politics and deprived of any other means of expression.170 As Baines has developed the concept in order to explain the case study of the former LRA soldier Dominic Ongwen171 and keeps the theoretical explanation of the concept brief,172 it is by applying the concept to the case study that the complex political perpetrator becomes understandable. Erin Baines' complex political perpetrator was heavily criticised by Sonja C. Grover, professor of education at Lakehead University. Grover stated that the victim-perpetrator is a social science concept and does legally not make sense. Legally speaking a victim has either not committed any crimes or is not accountable for them, because certain facts exclude the criminal responsibility of the victim. A perpetrator, on the other hand, has committed atrocities and is criminally responsible for them. From a legal standpoint, it is impossible to be both a victim and a perpetrator at the same time.173 "The concept of victim-perpetrator simply sidesteps the issue of accountability by assigning it on the one hand and removing it entirely on the other, and is therefore not viable as a legal concept."174 According to Grover

167 Baines, ‘Complex Political Perpetrators’, 164. 168 Ibid., 180. 169 Ibidem. 170 Ibidem. 171 Ibid., 164–65. 172 Ibid., 180–81. 173 Grover, Child Soldier Victims of Genocidal Forcible Transfer, 254. 174 Ibidem. 20 the concept of victim-perpetrator only makes sense if "what is meant by the term is a perpetrator who is culpable but for whom there are mitigating factors reducing culpability though not eliminating it in which case the individual is still a perpetrator."175 Social worker and sociologist Marti Loring and psychologist Pati Beaudoin, as well as lawyer Abbe Smith, approached the concept of victim-perpetrator from the perspective of abused woman, who subsequently committed a crime.176 The women in Loring and Beaudoin's study lived in the USA and included African-Americans, Latinas, Whites and Asians. Their age ranged from 18 to 64.177 Smith concentrated her analysis on Aileen Wuornos, a US American citizen, born in 1956 in Troy, Michigan.178 Wuornos had been abandoned by her mother a few months after her birth and ad been abused by her grandfather as a child. She was raped at thirteen, thrown out her home at fourteen and ended up selling her body to survive. She was executed by lethal injection for killing seven of her clients.179 Smith's research focused on how abuse can lead to the individual committing crimes later in life. She was of the opinion that victims turn into perpetrators because of the abuse they suffered on one or several previous occasions in their lives.180

"But among those who have committed a serious crime, it is the rare perpetrator who had not also suffered. It is the rare death row inmate whose life does not read like a case study of extreme deprivation and abuse. It is the rare juvenile incarcerated in an adult prison for rape or murder who has had anything other than the cruellest of childhoods. As a career indigent criminal defense lawyer, I live in the world of victims-turned-perpetrators. I am often more surprised by my damaged clients who do not commit serious, violent crimes than by those who do."181

Through the analysis of the life of Aileen Wuornos, Smith concluded that a cycle of violence turns victims into perpetrators. The abuse Wuornos suffered conditioned her

175 Ibidem. 176 Loring and Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’; Smith, ‘The “monster” in All of Us’. 177 Loring and Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’, 5. 178 Smith, ‘The “monster” in All of Us’, 371. 179 Ibid., 370–81. 180 Ibid., 369. 181 Ibidem. 21 behaviour towards the opposing sex and this forced her into prostitution. Her profession again made her vulnerable to further abuse, until she decided to arm and defend herself.182 Loring and Beaudoin, on the other hand, defined a victim-perpetrator as an abused woman who is, as part of the abuse, forced to commit crimes.183 They remarked that "[a]ll of these crimes appear to have been committed in a context of terror, including prior physical and/or emotional abuse that involved threats to the victim-perpetrator and/or to her significant other."184 Similar to Loring and Beaudoin, Dutch criminologist Alette Smeulers also conducted research on individuals who were forced to commit crimes.185 She introduced the "compromised perpetrator" to account for perpetrators who commit crimes because they are "pressured, forced, coerced or tricked into doing so."186 She specified that the perpetrator does not agree with the crimes, but they are forced to participate because they are vulnerable to pressure.187 Smeulers' conceptualization of the victim-perpetrator is wider than Loring and Beaudoin's because Smeulers included any perpetrator who is forced to commit a crime in the category of "compromised perpetrator", while Loring and Beaudoin concentrated on abused women as perpetrators. Finally, the lawyer Luke Moffett defined victim-perpetrators as "individuals who are members of non-state armed, paramilitary or terrorist groups, or state forces who commit political violence but have been victimized through identifiable international crimes, such as [enforced] disappearances, extrajudicial killings, sexual violence, torture, serious injury or ill- treatment caused by other actors."188 Moffett's victim-perpetrator belongs therefore in a first instance to an armed group which commits violence and is only in a second instance a victim of a crime under international law.189 The definitions analysed above can be roughly divided into two groups. On the one hand, Luke Moffett conceptualized a perpetrator who subsequently turned into a victim, because of crimes that were committed against him after he had already committed crimes against others. Therefore, Moffett conceptualised the perpetrator-victim.190 At a first glance, it seems as if Bouris also analysed the perpetrator-victim. However, her focus lay on the

182 Ibid., 370–81. 183 Loring and Beaudoin, ‘Battered Women as Coerced Victim-Perpetrators’, 3–4. 184 Ibidem. 185 Smeulers and Haveman, Supranational Criminology, 257–58. 186 Ibid., 257. 187 Ibidem. 188 Moffett, ‘Reparations for “Guilty Victims”’, 151. 189 Ibidem. 190 Ibidem. 22 characteristics of the victim and the victim group's homogeneity. She concluded that in addition to innocent and pure victims, impure victims exist and that the victim group is, therefore, not homogeneous.191 On the other hand, scholars such as Baines, Loring and Beaudoin, Smith and Smeulers analysed individuals who are victims in a first stage and turn into a perpetrator in a subsequent stage of their lives, thus the victim-perpetrator.192 The literature can, therefore, be divided into research on victim-perpetrators and on perpetrator- victims.

2.4 Child Soldiers as Victim-Perpetrators Only few scholars do not put child soldiers into the victim category, but acknowledge that child soldiers are often victim and perpetrator at the same time. Alette Smeulers and Erin K. Baines are two scholars who analysed child soldiers from the victim-perpetrator angle.193 As discussed above, Smeulers formulated the concept of the compromised perpetrator, a person who is forced to commit crimes against his will,194 while Baines created the complex political perpetrator, who grew up in a situation of complex crisis and used violence as a political tool to make his voice heard.195 Smeulers saw children who were abducted and forced to become child soldiers as victim-perpetrators because they were pressured into committing the crimes.196 However, she then went one step further and argued that children, who volunteer to join the armed group to escape the extreme poverty in which they live, can also be considered compromised perpetrators and therefore victim-perpetrators. As the children are given housing, food and clothes when they join the armed group, Smeulers argued that their situation is exploited by the armed group and that the children are seduced by the prospects of a better life. The children are therefore victims of their circumstances.197 Baines also included children born inside the LRA in the victim-perpetrator group.198

"I have argued that this group of [complex political] perpetrators cannot be defined solely by acts of violence, however grave. Rather for those like Ongwen - abducted at ten and having lived his life as a rebel - or for the son of Kony -

191 Bouris, Complex Political Victims. 192 Baines, ‘Complex Political Perpetrators’; Loring and Beaudoin, ‘Battered Women as Coerced Victim- Perpetrators’; Smeulers and Haveman, Supranational Criminology; Smith, ‘The “monster” in All of Us’. 193 Baines, ‘Complex Political Perpetrators’; Smeulers and Haveman, Supranational Criminology. 194 Smeulers and Haveman, Supranational Criminology, 257–58. 195 Baines, ‘Complex Political Perpetrators’, 180. 196 Smeulers and Haveman, Supranational Criminology, 257. 197 Ibidem. 198 Baines, ‘Complex Political Perpetrators’, 186. 23

born of rape and raised in exile - acts of violence are a means of retaining power."199

Therefore, Baines argued that the children born to LRA soldiers' "bush wives", who grew up in the LRA and were trained to be soldiers from an early age are also victim- perpetrators.200 Smeulers acknowledged that "an initially compromised perpetrator can sadly enough be transformed into a far less reluctant participant."201 However, she did, contrary to Baines, not include child soldiers who are still members of the armed group when they reach adult age and who have risen through the rank to become commanders in the category of compromised perpetrators.202 The example Smeulers advanced to illustrate that some compromised perpetrators become less reluctant participants in the crimes, is that of a Dutch Jewish woman who tried to save her life by giving away the hiding place of other Jews.203 However, child soldiers who have risen to the rank of commanders are not to the same degree at the mercy of their superiors as the Jewish woman was at the mercy of the Nazi. The commanders have a bigger freedom of decision-making. They can therefore not be equated with the Dutch Jewish woman in Smeulers example and are therefore not included in the compromised perpetrator type anymore. In addition, Smeulers pointed out that her typology of perpetrators does not consist of strict categories. Perpetrators can change their motivations and in that case, they have to be reattributed to a different type of perpetrator.204 Individuals such as Dominic Ongwen who were abducted at a young age, reached their eighteenth birthday inside the armed group and obtained the position of a commander205 are not entirely part of the compromised perpetrator category anymore, because as a commander the perpetrator has bigger discretion and therefore the pressure put on him to commit atrocities is reduced. The commander is now also the one who pressures, forces and coerces others into committing crimes. Therefore, Ongwen has changed his perpetrator type from compromised perpetrator, which he was as a child without or on a low rank, to one of the other perpetrator types. As an adult, Ongwen resembles more the type of the devoted warrior or the professional, as described in chapter 2.1.206 However, problematically none of the other

199 Ibidem. 200 Ibidem. 201 Smeulers and Haveman, Supranational Criminology, 258. 202 Ibid., 257–58. 203 Ibid., 258. 204 Ibid., 264. 205 Baines, ‘Complex Political Perpetrators’, 169–75. 206 Smeulers and Haveman, Supranational Criminology, 252–54, 258–60. 24 categories acknowledges his former victim status207 and in leaving the compromised perpetrator category he turns from a victim-perpetrator into a perpetrator. Erin K. Baines, on the other hand, has established the concept of the complex political perpetrator to account for the specific case of Dominic Ongwen.208 Therefore, she included abducted child victims who were forced to perpetrate and became commanders as adults in her conceptualisation of the victim-perpetrator.209 Political scientist Kirsten J. Fisher pointed out that child soldiers are not a homogeneous group and identifieed three categories of child soldiers. The first category of child soldiers includes the children who did not participate greatly in or did not greatly support military actions and they are therefore not responsible for the crimes. Child soldiers who did participate to a greater extent in the fighting, but have a valid defence which exonerates them, fall also into the first category. The second category of child soldiers consists of children who have committed crimes and hold causal responsibility for their actions. However, they are morally and legally not fully responsible for their acts because they only possessed a limited freedom of decision-making. The child soldiers in the third category enjoyed their tasks. They often exceeded their orders and became leaders in the organisation.210 Fisher's three categories of child soldiers could also be named victims, victim- perpetrators and perpetrators with the first group being the victims, the second the victim- perpetrators and the third the perpetrators. Fisher argued that it is desirable to prosecute child soldiers belonging to the third category, if they were old enough to be criminally responsible when they committed the crimes. To forgo prosecution, in that case, would mean to deny justice to victims. However, the first and the second category should be excluded from criminal prosecution and other transitional justice mechanisms, such as mediation and truth commissions, are preferable.211 Consequently, Fisher argued for abstaining from criminal prosecution of victim-perpetrators. Erin Baines disagreed (at least partially) with this position. She argued that the child soldier as a victim-perpetrator is responsible for his actions212 because the victim-perpetrator decided to commit certain crimes and others avoided committing the same crimes by refusing or escaping.213 However, Baines explained that the victim-perpetrator's victim status should

207 Ibid., 244–60. 208 Baines, ‘Complex Political Perpetrators’, 164–65. 209 Ibid., 186. 210 Kirsten Fisher, Transitional Justice for Child Soldiers (Palgrave MacMillan, 2013), 148. 211 Ibid., 149–63. 212 Baines, ‘Complex Political Perpetrators’, 181. 213 Ibid., 182. 25 be considered as a factor reducing his accountability.214 Yet, the criminal prosecution approach also has limitations when addressing complex political perpetrators. Firstly, only a limited number of victim-perpetrators will be prosecuted and the large majority will go unpunished. Second, the criminal prosecution approach does not acknowledge the victim status of the victim-perpetrator. The few individuals prosecuted are therefore seen as carrying all the responsibility for all the crimes committed.215 Marc Drumbl supported Baines' position and suggested that the victim-perpetrator should be prosecuted, but that his victim status should serve to lighten the punishment. He argued that it is impossible to distinguish the victim and the perpetrator in the victim- perpetrator and that mitigating the sentence is thus the only way of accounting for both parts.216

2.5 Intermediary Conclusion Chapter two has looked at how the question of where the boundary lies between being a victim and being a perpetrator has been discussed in the academic literature. Seventy years after the discussion on how and why ordinary people become perpetrators emerged at the end of World War II in Europe in 1945, no consensus has been reached. The explanation evolved from the dispositional explanation via the situationalist explanation to the dispositional- situationalist explanation. With the inclusion of child soldiers and victim-perpetrators in the discussion, the analysis became even more complicated and scholarship moved even further away from reaching a consensus. Although the dominant opinion is that children are faultless, passive victims, some scholars disagree with this view of child soldiers. They argue that child soldiers have more agency than the faultless, passive victim discourse grants child soldiers and that child soldiers are not victims, but victim-perpetrators. However, scholars disagree on the definition of the victim-perpetrator and the definition of child soldiers who are victim-perpetrators. While some scholars include children born in the ranks into the victim-perpetrators, others do not and while some include former child soldiers who turned into adult commanders, others do not. Furthermore, scholars differ on whether child soldiers and victim-perpetrators should be held accountable for the crimes they committed. Yet, the ICC's case against Dominic Ongwen made these questions topical again and the answers could have important consequences in the lives of the accused and his victims.

214 Ibid., 180–81. 215 Ibid., 182–83. 216 Mark A. Drumbl, ‘The Ongwen Trial at the ICC: Tough Questions on Child Soldiers’, openDemocracy, 4 November 2015. 26

3. The Lord’s Resistance Army

3.1 The Historical Background of the Conflict

3.1.1 Origins of the Conflict

In January 1986, Yoweri Museveni, leader of the National Resistance Army (NRA), deposed Tito Okello, the president of the Republic of Uganda, and appointed himself president.217 After being defeated, Okello's soldiers, mainly coming from regions in the north of Uganda, such as the Acholi region, returned to their homes and hid their weapons.218 However, during their search for hidden weapons the NRA committed atrocities against the Acholi population219 and this provided fertile ground for the birth of rebel groups.220 The Holy Spirit Movement (HSM), also called the Holy Spirit Mobile Forces, was one of those rebel groups. The HSM was originally a spiritual healing cult lead by the spiritual medium Alice Auma (a.k.a Lakwena). Auma is reported to have been possessed by different spirits, such as Wrong Element and Lakwena.221 In 1986 Auma started her crusade against Museveni's government after his NRA had kidnapped a number of young people and Auma was asked by the local population to help liberate them.222 In 1988, Auma's Holy Spirit Movement was defeated by the NRA and Auma fled to Kenya223 Joseph Kony's Lord's Resistance Army (LRA) was born out of the fragments of the Holy Spirit Movement. After the defeat of Auma, Kony regrouped some of her followers into his own movement.224 Joseph Kony was born in the 1960s225 in Odek village, Gulu district, Northern Uganda.226 He had quit school after six years of primary school and had studied to become a healer.227 Kony has claimed to be related to Alica Auma228 and it was often maintained that they are cousins. However, their family connection, if it exists, is further removed than Kony claims.229 Like Alice, Kony proclaimed to be a medium and to be

217 José Carlos Rodríguez Soto, Tall Grass: Stories of Suffering and Peace in Northern Uganda (Kampala: Fountain, 2009), 25–26. 218 Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed Books, 2006), 28–30. 219 Soto, Tall Grass, 26. 220 Allen, Trial Justice, 30. 221 Ibid., 33–35. 222 Ibid., 34–35. 223 Ibid., 35–36. 224 Thijs B. Bouwknegt, ‘Dominic Ongwen: Born at the Time of the White Ant, Tried by the ICC’, African Arguments, 20 January 2015. 225 Allen, Trial Justice, 38. 226 Soto, Tall Grass, 29. 227 Allen, Trial Justice, 38. 228 Ibid., 37. 229 Ibidem. 27 possessed by several different spirits.230 Juma Oris, his main spirit and chairman, was a minister under Idi Amin and still alive when Kony first claimed to be possessed by him.231 Among others, the spirit of a woman called Silli Silindi, who spoke English, and Ing Chu, an Asian Spirit,232 as well as Who are you?, a spirit that instructed Kony on tactical issues, have possessed Kony.233 Furthermore, he also included ideas from Christianity and Islam in his rituals.234 Kony's goal was to establish a state based on the Bible's ten commandments,235 to overthrow Museveni and to fight for the rights of the Acholi population in Northern Uganda.236 Ironically, it was exactly the Acholi population who suffered most under the frequent attacks of the LRA.237 Thinking that "if you are not for us, you are against us,"238 the LRA saw the civilian population as supporters of Museveni's government and consequently brutally attacked them.239 Furthermore, Kony believed that the Acholi society had to get rid of its impurity and the only way to achieve this goal was through violence.240 In the beginning, the LRA was one rebel group among others and did not carry special importance. However, after President Museveni signed a peace agreement with the biggest rebel organisation, the Uganda People's Democratic Army (UPDA) in May 1988, many fighters who disagreed with the agreement deserted and joined the LRA.241 Thereupon, the LRA was the only active rebel group still fighting in Northern Uganda in 1990.242 However, in 1991, the NRA launched Operation North, a four-month long campaign against the Lord's Resistance Army.243 They forced the local population to support the military operation and arm themselves to help hunt down Kony. Yet, this reinforced the LRA's belief that the local population was their enemy and they increased the frequency and

230 Soto, Tall Grass, 22. 231 Allen, Trial Justice, 39. 232 Heike Behrend, Alice Lakwena & the Holy Spirits: War in Northern Uganda 1985-97 (Oxford: Currey, 1999), 185. 233 Allen, Trial Justice, 39. 234 Ibidem. 235 Bouwknegt, ‘Dominic Ongwen’. 236 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016, 78. 237 Ibidem. 238 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 11. 239 Ibid., 21. 240 Allen, Trial Justice, 40. 241 Ibid., 38. 242 Ibid., 39. 243 Ibid., 48. 28 brutality of their attacks on civilian targets.244 Thus, the Operation North resulted in th displacement of thousands of people from their villages to bigger, more secure towns.245 In 1993 the LRA rebels moved their base from Northern Uganda onto South Sudanese territory, where they engaged in combat with the Sudan People's Liberation Army (SPLA). However, they continued to attack villages in Northern Uganda.246 This brought Betty Bigome, who had been appointed Minister of State for the Pacification of Northern Uganda in 1988, to the scene. In 1994, she managed to negotiate a ceasefire between the government of Uganda and the Lord's Resistance Army. However, Museveni did not support the ceasefire and when he issued a seven-day ultimatum to the LRA soldiers to hand themselves in, the LRA started to fight again.247 With the end of the ceasefire, a new period of violence started,248 which led to the most deadly LRA attack up to now when fighters attacked the trading centre of Atiak in May 1995 and killed nearly 300 people.249 In 1996, the LRA were in the news again after soldiers abducted 139 girls from the St. Mary's College in Aboke.250 109 of the girls were later freed due to the efforts of sister Rachele, a teacher at the school.251 When activists succeeded in eroding the opposition to an amnesty, the Ugandan government signed the Amnesty Act in November 1999, which promised amnesties to all rebels in Uganda. The law came into power in January 2000. However, the Anti-Terrorism Act, which was adopted in 2002, curtailed the Amnesty Act.252 Yet, more than 21 000. former LRA soldiers have been granted amnesty after returning from the LRA.253 In March 2002 the Ugandan Army, which had been renamed the Uganda People Defence Force (UPDF), initiated a new military campaign, named Operation Iron Fist. The target of the attack were LRA bases in bordering (South) Sudan. The LRA's reaction was to go on a brutal plundering, abducting and killing spree.254 Following Operation Iron Fist, the LRA committed the attack on the Pajule Internally Displaced People (IDP) camp on 10 October 2003, for which, among other incidents, the alleged former LRA commander

244 Soto, Tall Grass, 30. 245 Allen, Trial Justice, 48. 246 Soto, Tall Grass, 30. 247 Allen, Trial Justice, 44–48. 248 Soto, Tall Grass, 31. 249 Allen, Trial Justice, 48. 250 Amnesty International, ‘Breaking God’s Commands: The Destruction of Childhood by the Lord’s Resistance Army’, Amnesty International AFR 59/001/1997 (17 September 1997): 5. 251 Ibid., 12–13. 252 Allen, Trial Justice, 74. 253 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 35. 254 Bouwknegt, ‘Dominic Ongwen’. 29

Dominic Ongwen is now indicted at the ICC.255 In Mach 2004, the UPDF launched the Operation Iron Fist II,256 which was followed by the LRA attacks on Odek, Lukodi and Abok IDP camps between April and June 2004, for which Ongwen has to stand trial in addition to the Pajule attack.257 Peace negotiations took place between the LRA and the Ugandan government between 2006 and 2008, however, they did not result in a peace agreement.258 Thus, in June 2008 Uganda, South Sudan and the Democratic Republic of the Congo (DRC) signed a security agreement, which culminated in December 2008 in a new military campaign against the LRA, called Operation Rolling Thunder. This campaign was executed jointly by the armies of all three countries. On 15 December 2008, the UPDF deployed to the DRC. However, coordination difficulties between various parts of the armies enabled the LRA to retreat. The LRA's reaction to Operation Rolling Thunder was to expand their attacks on civilians.259 According to the LRA Crisis Tracker, a "crisis-mapping social web platform that broadcasts the attacks and other activities perpetrated by the Lord's Resistance Army (LRA) in near real time"260, set up by the organisation Invisible Children, all reported LRA attacks in 2016 have taken place in the Central African Republic (CAR) or the DRC. Therefore, Northern Uganda has lived in relative peace.261 However, at the time of writing Kony is still at large.262 3.1.2 Referral to the International Criminal Court

On 16 December 2003, the Ugandan President Yoweri Museveni referred the 'situation of the LRA' in Northern Uganda to the Prosecutor of the International Criminal Court (ICC).263 However, the public was only informed of the referral in January 2004, when the ICC Prosecutor Luis Moreno-Ocampo and Museveni held a press conference in London.264 Yet, as Uganda had ratified the Rome Statute, the guiding treaty of the ICC, on 14 July 2002, the

255 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges, 8. 256 Allen, Trial Justice, 52. 257 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges, 8–34. 258 William A. Schabas, An Introduction to the International Criminal Court, 4th ed (Cambridge etc: Cambridge University Press, 2011), 41. 259 Allen and Vlassenroot, The Lord’s Resistance Army, 19. 260 Invisible Children, ‘LRA Crisis Tracker’, Invisible Children, accessed 10 June 2016, http://invisiblechildren.com/program/lra-crisis-tracker/. 261 Invisible Children, ‘LRA Crisis Tracker’, LRA Crisis Tracker, 4 June 2016, accessed 10 June 2016, https://www.lracrisistracker.com/. 262 International Criminal Court (ICC), ‘Kony et Al. Case’, International Criminal Court, 6 October 2016, accessed 10 June 2016, https://www.icc-cpi.int/uganda/kony. 263 Schabas, An Introduction to the International Criminal Court, 39. 264 Allen, Trial Justice, 82. 30

Statute only entered into force for Uganda on 1 September 2002, exactly two months after the Rome Statute entered into force for the first 60 countries that had ratified it. Therefore, the ICC did not have jurisdiction over any crimes which had been committed on the territory of Uganda in July and August 2002. To solve this problem, in 2004, the Ugandan government made a declaration on temporal jurisdiction stating that it accepts the jurisdiction of the court since 1 July 2002.265 On 28 June 2004 Luis Moreno-Ocampo publicised his decision to open investigations on the situation in Northern Uganda.266 He created a twelve-person strong investigation team, composed of investigators and lawyers.267 Curiously, none of the investigators picked by Ocampo had worked as a police investigator before.268 Furthermore, during the investigation, the ICC openly and exclusively concentrated on LRA atrocities and ignored the numerous reports of the UPDF committing crimes on the local population.269 These are pieces of evidence of the hastily led investigations, where "[t]ight deadlines left no time for thorough collection and broad analysis of existing information."270 Nevertheless, after having applied for five arrest warrants on 6 May 2005, the ICC Pre-trial Chamber II issued sealed warrants for the LRA leader Joseph Kony and four alleged commanders Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen on 8 July. The warrants were unsealed in October 2005. 271 However, after the issuance of the arrest warrants nearly ten years passed by until the first accused made his appearance in an ICC courtroom.272

3.2 The Organisational Structure of the LRA

3.2.1 Composition of the LRA The total number of LRA fighters is unknown at the time of writing, but in its 2010 report, the Enough Project273 estimated that the LRA consists of 400 fighters.274 A report published in 2015 by the Congressional Research Service even stated estimates as low as 200 to 300

265 Schabas, An Introduction to the International Criminal Court, 87. 266 Ibid., 39. 267 Ibidem. 268 Bouwknegt, ‘Dominic Ongwen’. 269 Ibidem. 270 Ibidem. 271 Schabas, An Introduction to the International Criminal Court, 39–40. 272 ICC, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Case Information Sheet. 273 The Enough Project is a project that aims to end genocide and crimes against humanity by conducting field research in conflict zones, developing and advocating for policy recommendations, supporting social movements in affected countries, and mobilizing public campaigns. 274 Ledio Cakaj, ‘The Lord’s Resistance Army of Today’, The Enough Project, November 2010, 6. 31 fighters remaining in the LRA.275 Additionally, it is commonly believed that the majority of the LRA fighters are adults and not child soldiers. Ledio Cakaj, a researcher for the Enough Project, estimated that only one-third of the fighters are children under the age of 15 abducted by the LRA.276 Furthermore, the LRA has slowly moved their operational bases out of Northern Uganda. In 1993, the rebels relocated to territory belonging to today's South Sudan.277 By 2015, "the LRA [...] operate[d] in the remote border areas between the Central African Republic (CAR), Democratic Republic of Congo (DRC), South Sudan and Sudan."278

3.2.2 Organisational Structure and Ranks In the confirmation of charges hearing in the case of The Prosecutor vs. Dominic Ongwen at the ICC, the prosecution made submissions regarding the organisation and the hierarchical structure of the LRA between 2002 and 2005. According to the counsel for the prosecution, Pubudu Sachithanandan, in the early 2000s, the LRA had an army-like structure with an unambiguous hierarchy and a clear command structure. The headquarter was named Control Altar and contained numerous departments, such as the political affairs, operations, religious affairs, support or personal administration departments. One level below the Control Altar was a so-called division, which is also an operational unit. The exact role of the division is unclear. The four operational LRA brigades were situated a level further below. The brigades were responsible for executing missions, carrying out attacks and looting. The Sinia brigade was the oldest and most senior brigade. The other three brigades carried the names Giliva, Trinkle and Stockree. Each brigade was again divided into battalions which were themselves subdivided into companies. The Sinia brigade was composed of the Oka, Terwanga and Siba battalion. Every brigade, battalion and company had a leader and a deputy leader. Orders were communicated by radio over long distances along this hierarchical structure from Control Altar to the brigade commanders to the battalion and company commanders. The commanders also reported back along those lines to Control Altar.279

275 Alexis Arieff, Lauren Ploch Blanchard, and Tomas F. Husted, ‘The Lord’s Resistance Army: The U.S. Response’, Congressional Research Service, 28 September 2015, 3. 276 Cakaj, ‘The Lord’s Resistance Army of Today’, 6–7. 277 Soto, Tall Grass, 30. 278 Arieff, Ploch Blanchard, and Husted, ‘The Lord’s Resistance Army: The U.S. Response’, 4. 279 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 46–49. 32

Source: Screenshot from the Video of the Confirmation of Charges Hearing on 26 January 216 at 14.34. 280:

However, Dominic Ongwen’s defence team and several research institutes insisted that the organisation of the LRA was less clear than the ICC prosecution wanted the judges to believe. The defence argued that “[t]he LRA was not an organised armed group as compared to any structured military or paramilitary group. If anything, it was akin to a gang with Joseph Kony as the all-seeing and all-knowing cult-like leader.”281 They claimed that Joseph Kony was the head of an unorganized group which may have groups named according to military hierarchy, but that these names meant nothing and Kony was the sole, all-powerful leader. Furthermore, the defence argued that a clear chain-of-command did not exist. The orders are given by Joseph Kony, but the orders were then not passed on following the hierarchical structure as claimed by the prosecution.282

“Everyone reported to Kony, and Kony could order anyone to a mission. Former senior commanders of and with the LRA expressed to the Defence that orders did no always tickle down the chain-of-command as one would expect in a military.”283

Andre Le Sage, a senior research fellow at the US National Defense University, supported the defence’s argument that the structure was not as presented by the prosecution. He attested that the LRA is since the Operation Lightning Thunder not well-organized

280 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Video of the Confirmation of Charges Hearing - 26 January 2016 (Case no. ICC-02/04- 01/15: The Hague, 26 January 2016). 281 ICC, Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016, 12. 282 Ibid., 12–14. 283 Ibid., 13. 33 anymore.284 “The exact command and control structure of the LRA is hard to describe today using a traditional line-and-command chart”,285 wrote Le Sage. Furthermore, he added that the LRA has multiple bases of operations and that the rebel group is split up over a large area. “Under these circumstances, the most accurate means of describing the LRA’s structure is to identify the geographical locations of its main units,”286 he stated further. Ongwen’s defence also argued that contrary to the prosecution's assertions, military ranks were attributed arbitrarily and did not show a person’s power or responsibility in the LRA. The rank attributed indicated the ability to survive in the LRA and to follow orders.287 However, Cakaj stated that the chain-of-command in the LRA mirrored the UPDF’s structure. The ranks were in order from the lowest to the highest: Sergeant, Second Lieutenant, Lieutenant, Captain, Major, Lieutenant-Colonel, Colonel, Brigadier and Major General. Yet, Cakaj stated that ranks were assigned or taken away by Joseph Kony personally to reward or punish fighters. LRA members showing bravery in battles were awarded higher ranks. Education or the length of time spent in the LRA did not result in a higher rank.288 Furthermore, ranks were linked to benefits. “Only officers, from the rank of sergeant and above, have the right to take ‘wives’, who are usually assigned by the highest ranking officer in the group. Officers are allowed to listen to radios for entertainment. Officers decide who lives or dies.”,289 wrote Cakaj. However, a higher rank did not automatically mean more authority. The higher-ranking Brigadier Nixman Opuk Oryang for example followed at some point orders from the lower-ranking Lieutenant-Colonel Achellan Smart.290 Yet, even though there was a disagreement between scholars, the prosecution and the defence in the ICC's case against Ongwen about the structure and ranks of the LRA, they all agreed on a point. The ranks existed and so did the brigades. It was the power, authority, responsibility and importance of these ranks and brigades which was the subject of the controversy. “Names like Sinia, Gilva, Trinkle, Stockree and Control Altar, along with Oka, Terwanga, etc. meant little,”291 wrote Ongwen's defence in the pre-confirmation brief.

284 Andre Le Sage, ‘Countering the Lord’s Resistance Army in Central Africa’, Strategic Forum, July 2011, 6. 285 Ibid., 7. 286 Ibidem. 287 ICC, Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016, 11–12. 288 Cakaj, ‘The Lord’s Resistance Army of Today’, 7–9. 289 Ibid., 9. 290 Ibidem. 291 ICC, Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016, 14. 34

3.3 Child Soldiers in the LRA As outlined above, under international law the recruitment and use of children under the age of fifteen are illegal and punishable. However, efforts are made by the global civil society, United Nations agencies and transnational norm entrepreneurs to lift the legal age of recruitment to eighteen and it is slowly becoming the new norm. Furthermore, child soldiers are mostly defined as children under the age of eighteen participating in armed conflict. 292 Many state armies and rebel groups, including the LRA, make extensive use of child soldiers. According to Ledio Cakaj, in 2010 one-third of the LRA fighters were younger than 18 years old. The LRA's main means of recruitment is the abduction of children,293 but among the child soldiers are also children of LRA soldiers and their forced wives. These children are born into the LRA.294 However, most of the children are taken from their families and communities and forced to become child soldiers.295 However, Tor Arne Berntsen,a lieutenant-colonel in the Norwegian army with a doctorate in theology, insisted that the abductions also fulfil other goals than only the recruitment of new fighters. He wrote that “Joseph Kony started attacking the civilian population and abducting children as he felt betrayed by the lack of support for the insurgency by the Acholi elders. As such, the strategy of abducting children should not only be seen as a military recruitment strategy, but also a way of punishing the Acholi population.”296 However, Kony himself claims that he abducted the children in order to protect them from the evil society and to enable them to live in the new world he is creating.297 Children as young as six have been abducted by the LRA,298 but they prefer children between the age of nine and twelve because they are the most malleable and fit for indoctrination.299 However, the younger the abductees, the easier they are indoctrinated and therefore the more loyal they are to the LRA.300 Correspondingly, Human Rights Watch (HRW) has detected a drop in the average age at abduction. A worker in the World Vision Reintegration centre for former LRA child soldiers told Human Rights Watch: “Now, children

292 Drumbl, Reimagining Child Soldiers in International Law and Policy, 134–35. 293 Amnesty International, ‘Breaking God’s Commands: The Destruction of Childhood by the Lord’s Resistance Army’, 10–11. 294 Baines, ‘Complex Political Perpetrators’, 186. 295 Amnesty International, ‘Breaking God’s Commands: The Destruction of Childhood by the Lord’s Resistance Army’, 10–11. 296 Bård Mæland, ed., Culture, Religion, and the Reintegration of Female Child Soldiers in Northern Uganda (New York: Lang, 2010), 43. 297 Ibidem. 298 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 13. 299 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016, 2. 300 Baines, ‘Complex Political Perpetrators’, 171. 35 of nine and ten are being abducted. It used to be thirteen, fourteen or fifteen. Now, children of fifteen and sixteen are being released. They are more interested in the younger ones.”301 Although the exact number of children abducted by the LRA remains largely unknown because the registration of those abducted only started in 1997 and is incomplete after that,302 several estimates exist. The UNICEF evaluation came to the conclusion that 28 603 people, including almost 10 000 children were abducted by the LRA between 1986 and 2001.303 The Concerned Parents Association (CPA), which is a local Ugandan organisation of parents of abducted children, even considered that as many as 15 000 children were kidnapped in the same period.304 Furthermore, Human Rights Watch estimated that 20 000 children were abducted between the beginning of the conflict in 1986 and 2003. They stated that this is a conservative estimate. Researchers from Tulane University and the University of California, Berkley concluded - based on statistical analysis - that between 25 000 and 38 000 children were abducted until 2006.305 The high number of abductions is linked to the fact that the LRA sees the children as interchangeable and replaceable. Retired Lt. General Roméo Dallaire wrote in They Fight Like Soldiers, They Die Like Children,

“[s]ome of the forces, like the LRA, employ child soldiers with no regard to their survival. Daily news releases, reports and testimonies speak to the fact that the LRA commanders place no value on the lives of their soldiers. Children and adults are expendable and new recruits can be found just across the next border.”306

But what did the children experience after being abducted? After being forced to leave their families behind, the children were forced on long and exhausting marches through the bush, often carrying heavy loot on their heads.307 Protected ICC prosecution witness 'P-226', a former 'bush wife' of Dominic Ongwen, was forced to walk 450 kilometres carrying a bag of

301 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda, vol. 15, Human Rights Watch, Nr. 7 (A) (New York, 2003), 7. 302 Allen, Trial Justice, 60. 303 Phuong N. Pham, Patrick Vinck, and Eric Stover, ‘The Lord’s Resistance Army and Forced Conscription in Northern Uganda’, Human Rights Quarterly 30, no. 2 (2008): 410. 304 Ibidem. 305 Ibid., 404. 306 Dallaire, They Fight like Soldiers They Die like Children, 142–43. 307 Rosa Ehrenreich, ‘The Stories We Must Tell: Ugandan Children and the Atrocities of the Lord’s Resistance Army’, Africa Today 45, no. 1 (1998): 81. 36 salt when she was abducted at seven years old.308 Prosecution witness 'P-101' was abducted at age fifteen and had to walk 650 kilometres from Gulu, Uganda to an LRA camp in Sudan.309 Those who moved too slowly or were too weak to keep up were killed.310 Conse, who was abducted in 1996 at the age of twelve, explained, “We walked in the rain. One lame boy who was moving slowly was stabbed with a bayonet while I was looking on. I felt so terrified because I thought I would be the next since I was weak and feared I would not manage to walk for long.”311 The children are also informed that they would be killed if they tried to escape312 and sometimes abducted children have to participate in the killing of a fellow abductee who tried to run away. 313 The eighteen-year-old Edward remembered:

"I was with the LRA for six months and during this time many abductees escaped. Not all were so lucky. One boy tried to escape and was caught, tied up, and marched back to camp. All the recruits from the various companies were told that we were never going home, that we were fighting now with the LRA so as a symbol of our pledge to fight on, this boy would be killed and we would help. Soldiers then laid the boy on the ground and stabbed him three times with a bayonet until the blood began seeping from the wounds. Then the new recruits approached the boy and beat him on the chest. Each one had a turn and could only stop once the blood from the body splashed on to you. This boy was sixteen years old. We were beating him with sticks, each recruit was given a stick."314

The abductees are initiated into the LRA with a series of beatings in order to toughen them up.315 Mark T, who was seventeen when he was abducted, recollected his experience:

"They gave us 150 strokes of the cane, and eight slaps with the machete on the back. It was the soldiers who did the beating. For the cane, we were made to lie on our stomach and then the soldiers would beat us on the buttocks. There were

308 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016, 44. 309 Ibid., 47. 310 Ehrenreich, ‘The Stories We Must Tell’, 81. 311 World Vision Uganda and United Nations Children’s Fund (UNICEF), ‘Shattered Innocence: Testimonies of Children Abducted in Northern Uganda’, World Vision Uganda, 1994, 13. 312 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda, 7–8. 313 Ibid., 9. 314 Ibid., 8. 315 Ibidem. 37

twenty-three of us. For the machete, we were made to bend over at the waist, and then the soldiers would use the blunt end of it to beat us on the back."316

Sometimes the children were so severely beaten that they died from their injuries. A girl remembered that one of the boys who had been abducted with her died after having received 250 cane strokes.317 When the beating was over, a cross was drawn with oil from the nut of the shea tree on the children’s forehead, chest, back, hands and feet. They were told that the shea oil makes it easier for the LRA to find them if they tried to escape.318 After the initiation rituals, the abductees undergo vigorous indoctrination. 319 They are told that Kony is all-seeing and all-knowing and knows when they make plans to escape. The children are also made to believe that Kony can read their minds and predict the future.320 Moreover, they are informed that they would attract the fury of the spirits if they tried to leave the LRA.321 Furthermore, Kony repeatedly told them that the LRA is close to overthrowing the government of Museveni.322 The abductees were forced to fulfil a wide range of tasks in the LRA. Following their abduction the children were often forced to carry heavy loot over long distances to the LRA camps. As mentioned above, those who could not keep up were killed. 323 Upon arrival in the camp, the abducted children were assigned different tasks according to sex and age. Those children who were too young or too weak to fight were given jobs inside the camps.324 The boys were assigned to do heavy manual labour. They were ordered to plant the LRA's fields, cut down trees and make charcoal.325 Girls were assigned to commanders as so-called ting tings to help in the commander’s household.326 At fourteen or fifteen years old, they were forced into sexual slavery by becoming the “wife” of an LRA fighter. As wives, the girls and women were raped and forced to give birth to the commander's children. Furthermore, they were in the process often infected with HIV/AIDS.327 Sixteen-year-old Janet A said,

316 Ibidem. 317 Stephanie Nolen and Erin K. Baines, ‘The Making Of A Monster’, The Globe and Mail, 25 October 2008. 318 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda, 8. 319 Mæland, Culture, Religion, and the Reintegration of Female Child Soldiers in Northern Uganda, 42–43. 320 Baines, ‘Complex Political Perpetrators’, 170. 321 Cakaj, ‘The Lord’s Resistance Army of Today’, 5. 322 Allen and Vlassenroot, The Lord’s Resistance Army, 143. 323 Dallaire, They Fight like Soldiers They Die like Children, 133. 324 Ibid., 132. 325 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda, 11. 326 Baines, ‘Complex Political Perpetrators’, 174. 327 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda, 2. 38

“I was forced to be a “wife” to a rebel man who I did not like. He was harsh and unkind to me. During the day he would treat me as a prisoner but at night he would want to treat me as a wife and would force me to love him.”328

Boys obtained rudimentary military training and learned how to march, disassemble and assemble a gun and how to fire it. 329 Fifteen-year-old Matthew was in the LRA for four years.

"During our military training, we were divided into groups of fifty children, the youngest in the group was age eight or nine, and they included boys and girls. We learned to march in formation and parade. We were taught to shoot, clean, and assemble and disassemble submachine guns. These weapons held a magazine that can shoot thirty rounds. They were large, heavy and not easy to use at first. The training lasted for several weeks. During that time, if you made a mistake, you were severely beaten."330

Matthew received relatively extensive training compared to other abductees. James K., for example, did not undergo much training. “We moved around a lot, there wasn’t much time for training.”331 They were then forced to participate in military operations and had to abduct children as new recruits.332 Furthermore, the abductees suffered from a constant lack of food.333 Several of the testimonies of formerly abducted children include references to constant hunger. Josephine M remembered, “[s]ometimes we would go on an empty stomach for days. We had no food and were eating only wild leaves and wild fruit. [...] Sometimes we only had one handful of beans for ten people. [...] Hunger kills many children, including the children of the commanders.”334 The fourteen-year-old Peter O. explained, “[w]e would wake up early morning to dig in the garden, then dig latrines, build officers’ houses with no rest and not enough to eat. We would eat leaves, grass, anything that would not kill you, you would eat.” Roméo Dallaire remarked that much of the looting the LRA soldiers did can be attributed to the fact that they are

328 World Vision Uganda and United Nations Children’s Fund (UNICEF), ‘Digital Library’, 5. 329 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda, 12. 330 Ibidem. 331 Ibidem. 332 Ibidem. 333 Ibid., 11. 334 Ibidem. 39 deprived of food, water, and medicine in the bush. Taking the food of the civilian population is their only means of assuring their own survival.335 Another way to increase one’s chance for survival is a rise in rank inside the LRA.336 The officers in the LRA received favourable treatment with regards to food, women and protection. The higher in rank, the better the access to food and shelter.337 In addition, the fighters in the rank of sergeant or above had the right to “marry”.338 Furthermore, a rise in rank also translated into obtaining more information and escorts and spies for protection. 339 Protection was also provided by the sleeping arrangement in the bush camps. The LRA members arranged themselves in circles to sleep. The highest ranking officers would sleep on the inside of the circle and the lowest ranks on the outside. Those on the outside were the most likely to get attacked.340 However, as Molly A. explained, this sleeping arrangement also offered a possibility to escape the LRA.

At around 11:00 pm we were sleeping in the bush. The commanders were in the centre and we (the guards) were in the outer circle. My cousin and I decided to sneak off and ran after a short distance. That night we slept in the bush near a home. In the morning we discovered it was of a local council leader who handed us to the nearest Government of Uganda army detach.341

Other children ran away in moments when they are not watched. Others were captured by the UPDF during a battle.342 According to economist Christopher Blattman and psychologist Jeannie Anna, the majority of the abductees managed to escape.343

3.4 Dominic Ongwen in the LRA Dominic Ongwen, or Wai Wai as he was called by fellow fighters, was abducted by the LRA at age 14 according to the prosecution,344 at age 9.5 according to the defence345 and at age 10

335 Dallaire, They Fight like Soldiers They Die like Children, 143. 336 Ledio Cakaj, ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’, Justice in Conflict, 12 April 2016. 337 Baines, ‘Complex Political Perpetrators’, 174. 338 Cakaj, ‘The Lord’s Resistance Army of Today’, 9. 339 Baines, ‘Complex Political Perpetrators’, 174. 340 Cakaj, ‘The Lord’s Resistance Army of Today’, 9. 341 World Vision Uganda and United Nations Children’s Fund (UNICEF), ‘Digital Library’, 11–12. 342 Human Rights Watch, Stolen Children: Abduction and Recruitment in Northern Uganda, 15:15. 343 Allen and Vlassenroot, The Lord’s Resistance Army, 143. 344 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 19. 345 ICC, Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016, 6–7. 40 according to the independent researcher and founder of the Justice and Reconciliation Project in Uganda, Erin K. Baines.346 During his initial appearance at the ICC on 26 January 2015, Ongwen himself stated that he was born in 1975 and abducted in 1988 when he was fourteen years old.347 However, his defence counsel, Krispus Ayena Odongo, declared in his submission that Ongwen does not know his date of birth.348 Dominic Ongwen was born as Dominic Okumu Savio. Whereas historian Thijs Bouwknegt asserts that Dominic's parents re-baptised him Ongwen, meaning "born at the time of the white ant,"349 Erin Baines stated that he gave the LRA rebels a false name upon his abduction. This is a common survival strategy taught by Acholi parents to their children because the LRA documents the names, clans and village of birth of the abductees. Dominic was so small when he was abducted that he had to be carried to the LRA camp by other children kidnapped with him.350 “Stolen from his family and community, Dominic was taken to a makeshift training area. Along the way, the LRA rebels beat, tortured and subjected him to constant acts of violence and forced him to perform the same.”351 Even though the details of his first encounter with the LRA brutality are unknown, it can be assumed that he had to undergo an initiation ritual similar to the one of so many other abductees. They are often forced to kill members of their families or other children in order to break with their previous lives. They are told that there is no way back.352 One girl told the following story:

"One boy tried to escape, but he was caught. They made him eat a mouthful of red pepper, and five people were beating him. His hands were tied, and then they made us, the other new captives, kill him with a stick. I felt sick. I knew this boy from before. We were from the same village. I refused to kill him and they told me they would shoot me. They pointed a gun at me, so I had to do it. The boy was asking me, “Why are you doing this?” I said I had no choice. After we killed him, they made us smear his blood on our arms.... I still dream about the

346 Baines, ‘Complex Political Perpetrators’, 163. 347 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Initial Appearance (Case no. ICC-02/04-01/15: The Hague, 26 January 2015), 4. 348 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 62. 349 Bouwknegt, ‘Dominic Ongwen’. 350 Baines, ‘Complex Political Perpetrators’, 169. 351 ICC, Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016, 3. 352 Ruddy Doom and Koen Vlassenroot, ‘Kony’s Message: A New Koine? - The Lord’s Resistance Army in Northern Uganda’, African Affairs 98, no. 390 (1 January 1999): 25. 41

boy from my village who I killed. I see him in my dreams, and he is talking to me and saying I killed him for nothing, and I am crying."353

Being too small to be trained as a soldier, Ongwen was assigned to Vincent Otti’s home to help run the household and to instil a sense of loyalty in him. Otti, Kony’s long-time second-in-command, later became Ongwen’s teacher and mentor. Furthermore, Dominic Ongwen underwent the same indoctrination as the other children. He was told that Joseph Kony possessed supernatural and spiritual powers,354 including being able to read minds, predict the future and shapeshift into animals.355 In 1993, the LRA relocated its operation base onto South Sudanese territory, where they received financial and military support from the Sudanese government in Khartoum.356 Dominic Ongwen moved with the rest of the LRA out of Uganda and into Sudan. There he led field operations, attacks and abducted children from Northern Uganda.357 In April 1995, Ongwen reportedly participated in the attack on Atiak village in Northern Uganda, where over 300 people were killed. He was then between seventeen358 and twenty years old.359 “Under Otti’s guidance, Ongwen had to punish civilians who did not help the LRA, fight Ugandan soldiers, and abduct more youths to fill the ranks.”360 Ongwen is described as an obedient fighter who outdid himself to follow the orders given to him.361 On several occasions, he was praised personally by Kony and held up as an example for other fighters to follow.362 On 23 September 2003 a Ugandan Internal Security Organisation (ISO) officer intercepting LRA radio communication wrote in his logbook:

"However, Kony praised Dominic so much for his hard work he is doing. He blamed Pokot and the entire Sinia brigade under Abudema that they are so weak. And almost all the losses LRA are incurring comes from Sinia brigade. He

353 Ehrenreich, ‘The Stories We Must Tell’, 79. 354 ICC, Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016, 3. 355 Nolen and Baines, ‘The Making Of A Monster’. 356 Soto, Tall Grass, 30–31. 357 Baines, ‘Complex Political Perpetrators’, 171. 358 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 61. 359 ICC, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Case Information Sheet, 1. 360 Cakaj, ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’. 361 Ibidem. 362 Baines, ‘Complex Political Perpetrators’, 172. 42

also warned Abudema to be careful, if not the brigade command of Sinia will be appointed another person."363

Ongwen was also sent to Khartoum, Sudan, and Nairobi, Kenya, for training and participated in several international arms deals.364 However, he was best-known for his ability to abduct children. He had the reputation of always bringing all the children he abducted back to Kony. He would never let anyone escape.365 As a reward for his outstanding work, Kony promoted Ongwen continuously. With the rise in rank came the possibility to have “wives”.366 He is thought to have had between five367 and eight “wives” in total.368 In 2001, Ongwen held the position of a field commander and the rank of a lieutenant.369 However, Ongwen is said to have become increasingly critical of Kony, the longer he spent with the LRA and he ultimately wished to leave. Yet, he was afraid of the spirits of the people he had killed and thought they might haunt him if he left the protection of the LRA’s Holy Spirit. Furthermore, he was alarmed at the thought of being put in prison or executed by the UPDF.370 After the Ugandan government referred the situation of Northern Uganda to the ICC in 2003,371 Ongwen’s wish to leave the LRA became stronger and at a minimum of three occasions he undertook steps to leave the LRA. On an undated occasion, he ordered LRA fighters to bring him thirty civilians. He then questioned them on what the public thought of him, what would happen to him if he surrendered and if he could avoid being sent to the ICC. After they had answered his questions, they were allowed to return home. On a second occasion in 2006, Ongwen, dressed in civilian clothes, visited one of his former “wives” in a refugee camp in Opit. When he voiced the desire to leave the LRA, she organised a meeting with the UPDF and former LRA commanders in order for Ongwen to surrender. However, he changed his mind at the last second. On a third occasion in September 2006, Ongwen

363 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 52. 364 Baines, ‘Complex Political Perpetrators’, 171. 365 Ibid., 172. 366 Ibidem. 367 Ibidem. 368 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016, 43. 369 Baines, ‘Complex Political Perpetrators’, 172. 370 Cakaj, ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’. 371 Schabas, An Introduction to the International Criminal Court, 39. 43 participated in talks with the UPDF and religious leaders, who offered him a safe passage to a neutral area in Sudan, but he refused to accept the deal.372 From mid-2002 - at least from August 2002 onwards - to March 2004, Ongwen was the commander of the Oka battalion in the Sinia brigade. In this position he participated in the attack on Patongo in late 2002 or early 2003, he partook in the combat at Ngora in November 2002 and drew up the plan to attack Opit and ordered the raid in late 2002 or early 2003. In September 2003, Ongwen became part of Control Altar and was appointed second-in- command of the Sinia brigade.373 He participated in the establishment of the common plan to attack Pajule internally displaced peoples’ camp (IDP camp) around 10 October 2003.374 Around 5 March 2004, Ongwen was again promoted. This time, he became the commander of Sinia brigade. He personally led the attack on Odek IDP camp on 29 April 2004 in this position and the ground commanders of the Lukodi and Abok attack on 19 May 2004 and 8 June 2004 reported directly to Ongwen.375 In the second half of 2005 Ongwen was the most senior LRA commander in Uganda.376 Between mid-2002 and December 2004 Dominic Ongwen benefited from a rapid succession of promotions. In July 2002, he obtained the rank of a major to then be promoted to lieutenant-colonel in November 2003, to colonel in May 2004 and finally to brigadier general, the highest rank in the LRA, in December 2004.377 On 8 July 2005, the ICC issued an arrest warrant for Dominic Ongwen for allegedly committing three counts of crimes against humanity and four counts of war crimes in Northern Uganda between 1 July 2002 and 31 December 2005.378 However, ten years should pass before Ongwen would surrender and be sent to the ICC in The Hague, The Netherlands.379 Between 2008 and 2014 Ongwen was active in North-Eastern Democratic Republic of the Congo (DRC), where he reportedly led the attack on Doruma on Christmas Eve in 2008,380 which is also known as the Christmas Massacre.381 In this period Ongwen is reported to have become increasingly independent of Kony in the DRC. At times he even refused to

372 Baines, ‘Complex Political Perpetrators’, 175–76. 373 ICC, Defence, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016, 47. 374 Ibid., 71. 375 Ibid., 48. 376 Ibid., 49. 377 Ibidem. 378 ICC, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Case Information Sheet, 1. 379 Cakaj, ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’. 380 Ibidem. 381 Human Rights Watch, ‘The Christmas Massacres’, Human Rights Watch, 16 February 2009, accessed 28 June 2016, https://www.hrw.org/report/2009/02/16/christmas-massacres/lra-attacks-civilians-northern-congo. 44 react to Kony’s radio messages. Kony, displeased with Ongwen’s behaviour, threatened to have him executed on several occasions.382 In 2014, a confidant of Kony found Ongwen and his fighters near the border between the DRC and the Central African Republic (CAR) and persuaded him to meet with Kony in South Darfur. However, upon his arrival, Kony ordered for Ongwen to be tortured. Yet, helped by a guard, Ongwen was able to escape and walked to CAR, where he surrendered.383

3.5 Intermediary Conclusion The third chapter analysed to what extent the theory squares with reality. It investigated when and how victim-perpetrators are created and what their role is in a conflict. Reality seems to be clearer and more straight-forward than theory when analysing the LRA conflict. Where theoretical consensus is non-existent on how and why ordinary people turn into perpetrators and victim-perpetrators, reality is more clear-cut with regard to victim-perpetrators. The LRA created victim-perpetrators by abducting children and teenagers from their families and forcing them to become child soldiers or by forced LRA wives giving birth to children, which were trained as child soldiers. Inside the LRA the abductees took on the roles of soldiers, servants, porters, cooks, but also forced wives. However, when analysing the specific case of Dominic Ongwen, it becomes clear that reality is as complex as theory. While it is clear how victim-perpetrators are created in practice, it is unclear where the boundary between being a victim and being a perpetrator lies in reality. When looking at Ongwen's career it is impossible to pinpoint the exact moment when he crossed the boundary between being a victim and being a perpetrator. Did he cross it when he reportedly participated in the attack on Atiak village in 1995? When he allegedly became the commander of Oka battalion in 2002? Or when he allegedly became the commander of Sinia brigade in 2004? Yet, even though Ongwen's case study does not offer a straightforward answer to the main research question, his case study adds to the field of learning.

382 Cakaj, ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’. 383 Ibidem. 45

4. The International Criminal Court

4.1 Introduction of the ICC Already in 1948 was the idea of an international criminal tribunal included in the Convention on the Prevention and Punishment of the Crime of Genocide.384 However, it took 40 years for the idea to become reality. Finally, on 17 June 1998, the Rome Statute was adopted by 120 states and the International Criminal Court was established as an independent international organisation with its permanent seat in The Hague, The Netherlands.385 The Statute entered into force on 1 July 2002 after it was ratified by 60 countries.386 With the ratification of the Rome Statute by El Salvador on 3 March 2016, 124 states are State Parties to the Rome Statute as of the time of writing. The African continent is represented with 34 countries, the Asian- Pacific region with 18, Eastern Europe with 18, Latin America and the Caribbean with 26 states parties and Western Europe and Northern America with 25 states.387 Strikingly, the United States of America (USA) has signed, but not ratified the Rome Statute, even though it played an active role in the drafting of the Statute.388 Out of the other four permanent members of the United Nations Security Council France and the United Kingdom have ratified the Rome Statue, Russia has signed it, but not ratified it and China has taken neither action.389 The ICC holds jurisdiction over the crimes of genocide, crimes against humanity, war crimes and (from 2017 onwards) the crime of aggression committed by a national of a state party or on the territory of a state party,390 committed after 1 July 2002.391 However, the crime of aggression has not yet been defined in the Rome Statute.392 Furthermore, according to Article 12 §3 a state not a party to the Rome Statute can on an ad hoc basis declare to accept the ICC's jurisdiction for a specific 'situation'.393 Contrary to the UN's ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) which had primacy over national tribunals, the ICC is based on the principle of

384 UNGA, Convention on the Prevention and Punishment of the Crime of Genocide, United Nations, Treaty Series, Vol. 78, P. 277, 12 January 1951, Art. VI. 385 International Criminal Court (ICC), ‘ICC - About the Court’, International Criminal Court, accessed 9 May 2016, https://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx. 386 Ibidem. 387 International Criminal Court (ICC), ‘The State Parties to the Rome Statute’, International Criminal Court, accessed 24 June 2016, https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties %20to%20the%20rome%20statute.aspx. 388 Schabas, An Introduction to the International Criminal Court, 25–34. 389 International Criminal Court (ICC), ‘The State Parties to the Rome Statute’. 390 Schabas, An Introduction to the International Criminal Court, xii. 391 Ibid., 23. 392 Allen, Trial Justice, 19. 393 Schabas, An Introduction to the International Criminal Court, 84–88. 46 complementarity. Therefore, the ICC can only prosecute a suspect if the domestic courts are unwilling or unable to do so.394 The ICC is thus a court of last resort.395 Furthermore, even though the United Nations Security Council can trigger the ICC's jurisdiction by referring a situation to the ICC prosecutor,396 the court is not part of the United Nations system but it is an independent international organisation.397 An investigation into a new situation can be triggered by three different mechanisms. First, a situation can be referred to the prosecutor by the United Nations Security Council (UNSC). Second, any state party can invite the prosecutor to open an investigation. Third, the prosecutor can begin to investigate on his own accord, proprio motu.398 Yet, if the prosecutor wants to open the investigation without a referral from a state or the UNSC he has to request permission of the judges of the Pre-Trial chamber.399 However, as the ICC does not possess its own police force it depends on the cooperation of the member states to arrest and extradite an accused.400

4.2 The Protection of Child Soldiers by the ICC

4.2.1 Protection of Children in International Law Several documents in international humanitarian law protect children under the age of fifteen from being recruited and used by parties in a conflict. In the 1977 Protocol Additional I and II to the 1949 Geneva Conventions the use and recruitment of children under the age of fifteen was prohibited for the first time. 401 Article 77 §2 of the Additional Protocol I forbid the use and recruitment of child soldiers in an international armed conflict402 and the Article 4 §3c of the Additional Protocol II prohibited it for non-international armed conflicts.403 In 1989, these provisions were upheld in Article 38 §2 and 3 of the United Nations Convention on the Rights of the Child (CRC).404 Until the end of April 2016 the CRC was ratified by 197

394 Ibid., 16. 395 Ibid., ix. 396 Ibid., 168. 397 International Criminal Court (ICC), ‘ICC - About the Court’. 398 Schabas, An Introduction to the International Criminal Court, 158. 399 Allen, Trial Justice, 19. 400 Ibid., 20. 401 Roman Graf, ‘The International Criminal Court and Child Soldiers’, Journal of International Criminal Justice 10, no. 4 (2012): 953. 402 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3, 7 December 1978, Art.77 §2. 403 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609, 7 December1978, Art.4 §3. 404 UNGA, United Nations Convention on the Rights of the Child (CRC), UN Doc. A/44/25, 2 September 1990, Art.38. 47 states, including South Sudan, which had only gained independence in 2011. The USA is the only state not a party to the CRC.405 However, recent efforts by United Nations agencies and transnational norm entrepreneurs have tried to raise the legal age of recruitment and use of child soldiers to eighteen.406 The International Labour Organization (ILO) Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour defines a child in Article 2 as "all persons under the age of 18".407 In Article 3 the I.L.O. lists the worst forms of child labour and includes "forced or compulsory recruitment of children for use in armed conflict"408 under the letter a.409 The African Charter on the Rights and Welfare of the Child also defines a child as a person under the age of eighteen410 and requests African States not to enlist or recruit children into their armed forces and not to use them in hostilities.411 In 2000 the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict was adopted. It forbids the forced recruitment and use of children younger than eighteen in armed conflict.412 Furthermore, it asks the state parties to raise the minimum age for voluntary recruitment from fifteen to eighteen years old.413 Furthermore, under international law, children have the right to be specially protected during armed conflicts. The Optional Protocol to the CRC calls on states to help child soldiers to demobilize and support their recovery and reintegration into society.414 The African Charter on the Rights and Welfare of the Child also requires states to protect and care for children affected by armed conflict.415

405 Office of the High Commissioner for Human Rights, ‘Status of Ratification - Interactive Dashboard’, United Nations Human Rights Office of the High Commissioner, 4 May 2016, accessed 11 May 2016, http://indicators.ohchr.org/. 406 Drumbl, Reimagining Child Soldiers in International Law and Policy, 134. 407 International Labour Organization (ILO), Convention on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, C 182, 19 November 2000. 408 Ibid., Art. 3a. 409 Ibid., Art 3. 410 African Union, The African Charter on the Rights and Welfare of the Child (ACRWC), CAB/LEG/24.9/49, 29 November 1999, Art.2. 411 Ibid., Art.22 §2. 412 UNGA, Optional Protocol to the Convention on the Rights of the Child, A/RES/54/263, 12 February 2002, Art.2. 413 Ibid., Art.3. 414 Ibid., Art.6 §3. 415 African Union, The African Charter on the Rights and Welfare of the Child (ACRWC), Art.22 §3. 48

4.2.2 Crime of Recruitment and Use of Child Soldiers in the Rome Statute The Rome Statute of the ICC is the first treaty to explicitly criminalise the enlistment, conscription and use of child soldiers to participate actively in hostilities as war crimes in Articles 8 (2)(b)(xxvi) and (2)(e)(vii).416 Article 8 - War crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, ‘war crimes’ means: […]

(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: […] (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. […]

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: […] (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.417

In order to prove to the ICC judges that an accused has committed the war crime of enlistment, conscription or use of child soldiers the two elements of the chapeau need to be fulfilled. The first element of the chapeau is that an armed conflict of either international or non-international character occurred during the pertinent time period and region.418 The ICC borrowed the definition of international and non-international armed conflict from the Appeals Chambers in the Tadić case at the International Criminal Tribunal for the Former Yugoslavia (ICTY).419 It defined an international armed conflict as "resort to armed force between states"420 and a non-international armed conflict is defined as "protracted violence between governmental authorities and organized armed groups or between such groups within a State".421 Furthermore, as paragraph 2b of Article 8 concerns international armed conflicts and paragraph 2e concerns non-international armed conflicts, the recruitment and use of child soldiers are criminalized in international and non-international armed conflicts.422 The second requirement of the chapeau is a link between the crime and the armed conflict. This is also called the nexus requirement.423

416 Graf, ‘The International Criminal Court and Child Soldiers’, 953. 417 UNGA, Rome Statute of the International Criminal Court, Art.8. 418 Graf, ‘The International Criminal Court and Child Soldiers’, 948. 419 Ibid., 949. 420 International Criminal Court for the former Yugoslavia (ICTY), Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Case no. IT-94-1: The Hague, 2 October 1995), §70. 421 Ibidem. 422 Graf, ‘The International Criminal Court and Child Soldiers’, 948. 423 Ibidem. 49

Furthermore, Article 8 (2)(b)(xxvi) and (2)(e)(vii) list additional criteria which need to be fulfilled for the war crime of recruitment and use of child soldiers to be proven. First, it needs to be proven that the accused "conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities."424 Second, the person enlisted, conscripted or participating actively in hostilities has to be younger than fifteen years old. These two criteria are in need of a number of clarifications. First, what is the difference between enlisting and conscripting a person into the national armed forces? According to public international lawyer Julie McBride, "the acts of ‘conscription’ and ‘enlistment’ are not defined in the [Rome] Statute, nor in the Elements of Crimes, leaving elaboration to judicial interpretation."425 The terms were explained in the Decision on the Confirmation of Charges in the ICC's case against Thomas Lubanga Dyilo. Conscription was defined as being forced to join national armed forces and enlisting refers to accepting a person who voluntarily joins the ranks of the armed forces.426 However, Cécile Aptel, professor of international law at Tufts University, stated that "[w]hether or not children join voluntarily or are forced to do so is ultimately irrelevant."427 Even though a difference exists between conscription and abduction, people make themselves liable to prosecution if a child under fifteen is a part of their armed group. It does not matter if the child has given its consent or not.428 Second, does the conscription, enlistment and use of child soldiers count as one or multiple crimes?429 As noted above, the difference between enlisting and conscripting is in the end without relevance.430 Therefore, enlisting and conscripting count as one crime, namely the crime of recruiting child soldiers. The conscription, enlistment and use of child soldiers are thus two crimes: the crime of recruiting child soldiers and the crime of using child soldiers.431 Third, Article 8 (2)(b)(xxvi) and (2)(e)(vii) both prohibit the use of children to "participate actively in hostilities".432 However, the term "participation" is not explicitly

424 Julie McBride, The War Crime of Child Soldier Recruitment (Springer Science & Business Media, 2013), 52. 425 Ibid., 57. 426 International Criminal Court (ICC), Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Decision on the Confirmation of Charges (Case no. ICC-01/04-01/06: The Hague, 29 January 2007), 85. 427 Sharanjeet Parmar, Children and Transitional Justice: Truth-Telling, Accountability and Reconciliation (Harvard University Press, 2010), 78. 428 ICC, Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Decision on the Confirmation of Charges, 85. 429 Parmar, Children and Transitional Justice, 80. 430 ICC, Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Decision on the Confirmation of Charges, 85. 431 Parmar, Children and Transitional Justice, 80. 432 UNGA, Rome Statute of the International Criminal Court, Art. 8. 50 defined in the Rome Statute and therefore the question arises which activities are included in it.433 Aptel wrote:

"The reference to "participation" remains problematic: while it clearly encompasses children engaged in activities such as scouting, spying and sabotaging, and also being used as decoys, couriers or at military checkpoints, does it also apply to children used in other functions, such as cooks, porters or servants, and those "recruited" for sexual exploitation? A negative response would be particularly damaging for girls, who may be unlawfully recruited more often than boys to perform these types of tasks or roles […] and who are also more systematically sexually assaulted and exploited."434

However, the question had been considered by the Preparatory Commission,435 which had been established by the United Nations General Assembly with the task of formulating the Rules of Procedure and Evidence, which answer questions concerning the procedure and the presentation of evidence at the ICC, and the Elements of Crimes, which define the crimes included in the Rome Statute further.436 The Commission added a footnote to the Zutphen draft of the Rome Statute, which is now part of the travaux préparatoires, explaining that "participate" covers in the context of Article 8 "direct participation in combat"437 and "active participation in military activities linked to combat,"438 but also the "use of children in a direct support function such as bearers to take supplies to the front line, or activities at the front line itself."439 Therefore, "participation" is defined in a wider sense than only partaking in direct combat.440 Furthermore, the United Nations Special Representative of the Secretary-General for Children and Armed Conflict (SRSG) requested the ICC not to enumerate the activities included in the term "participate actively", because many children, especially girls, would be excluded as possible victims of child soldier charges. The SRSG advised the ICC to decide for every case individually how "participate" is defined.441 The Lubanga judgment confirmed

433 Parmar, Children and Transitional Justice, 81. 434 Ibidem. 435 McBride, The War Crime of Child Soldier Recruitment, 60. 436 Schabas, An Introduction to the International Criminal Court, 21. 437 McBride, The War Crime of Child Soldier Recruitment, 60. 438 Ibidem. 439 Ibidem. 440 Ibidem. 441 Parmar, Children and Transitional Justice, 81. 51 that "active participation" covers a wide-range of activities including roles supporting the fighters as spies, but also porters and cooks.442 In addition to the elements of crime mentioned in the chapeau and in paragraph 2b and paragraph e of Article 8, the accused has to act with intent in order to be convicted of the recruitment or use of child soldiers. However, as Article 8 does not mention intent, Article 30 of the Rome Statute, which is the default rule, provides the elements of required intent.443

Article 30- Mental element

1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

Therefore, in order for the individual to be criminally responsible, the accused has to have the intent, thus the desire to cause the outcome or to behave in a certain way. Additionally, he has to have the knowledge that a situation exists or that his conduct will normally lead to a certain outcome.444 In conclusion, the crime of recruitment or use of child soldiers as defined in the Rome Statute has five elements. First, "the perpetrator conscripted or enlisted one or more persons into armed forces or used them to participate actively in hostilities."445 Second, the person conscripted, enlisted or used to participate actively in hostilities must be younger than fifteen years old. Third, the perpetrator had the knowledge that the person was younger than fifteen or should have known it. Fourth, the conscription, enlistment or active participation in hostilities took place in the context of an international armed conflict to be responsible under Article 8 (2)(b)(xxvi) or in the context of a non-international armed conflict to be responsible

442 International Criminal Court (ICC), Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Judgement pursuant to Article 74 of the Statute (Case no. ICC-01/04- 01/06: The Hague, 14 March 2012), 282–88. 443 McBride, The War Crime of Child Soldier Recruitment, 62. 444 Ibidem. 445 Ibid., 52. 52 under Article 8 (2)(e)(vii). Finally, the perpetrator knew that an armed conflict was ongoing.446

4.2.3 Protection from being prosecuted as child soldier by the ICC Contrary to the Special Court for Sierra Leone (SCSL), which set the age for prosecution at fifteen,447 Article 26 of the Rome Statute states that "[t]he Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime."448 Thus, the ICC is not only not allowed to prosecute, but also to investigate a person younger than eighteen.449 This leads to the contradictory situation, that it is not allowed under the Rome Statute to recruit and use children younger than fifteen in hostilities, but that children under the age of eighteen are not prosecuted by the Court. Therefore, children from fifteen to seventeen could be legally conscripted and enlisted into armed forces and commit crimes in these groups, but the IIC has no jurisdiction over them.450 The age of eighteen was decided upon for several reasons. Most importantly, the exclusion of children under the age of eighteen from the jurisdiction of the ICC was decided for practical reasons. As the states proposed minimum ages between seven and twenty-one, by agreeing on eighteen a debate between States could be avoided. Moreover, UNICEF had lobbied extensively for the age of eighteen. Furthermore, children under eighteen can still be prosecuted by domestic courts.451

Furthermore, the Special Representative of the Secretary-General for Children and Armed Conflict, Radhika Coomaraswamy, who was an expert witness in the trial of Thomas Lubanga Dyilo,452 is of the opinion that even though children should be held accountable for the crimes they committed, there are better alternatives than prosecuting them. Methods including rehabilitation and reintegration into society are more important.453

446 Ibidem. 447 Nienke Grossman, ‘Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations’, Georgetown Journal of International Law 38, no. 2 (2007): 339. 448 UNGA, Rome Statute of the International Criminal Court, Art. 26. 449 Drumbl, Reimagining Child Soldiers in International Law and Policy, 119. 450 Fisher, Transitional Justice for Child Soldiers, 55. 451 Ibidem. 452 United Nations Office of the Special Representative of the Secretary-General for Children and Armed Conflict, ‘International Criminal Court: UN Official Testifies In The Lubanga Case’, United Nations Office of the Special Representative of the Secretary-General for Children and Armed Conflict, 6 January 2010, accessed 28 June 2016, https://childrenandarmedconflict.un.org/press-release/7Jan10/. 453 McBride, The War Crime of Child Soldier Recruitment, 56. 53

4.3 Lubanga and Ntaganda and their Use of Child Soldiers

4.3.1. Introduction The International Criminal Court (ICC)'s cases against Thomas Lubanga Dyilo and Bosco Ntaganda both arose from the conflict in the Ituri region in the North-East of the Democratic Republic of the Congo (DRC) between the Hema and Lendu ethnic groups.454 Between mid- 2002 and the end of 2003 , the period under consideration by the ICC, international crimes, such as murder, rape, the conscription and enlistment of child soldiers as well as the use of child soldiers to participate actively in hostilities are alleged to have been committed by Lubanga and Ntaganda's irregular armed force, the Union of Patriotic Congolese (UPC).455 The Force Patriotique pour la Liberation du Congo (FPLC) is the armed wing of the UPC.456 In April 2004, two years after ratifying the Rome Statute, the DRC referred the situation in its country to the ICC. One month later the prosecutor Luis Moreno-Ocampo opened the investigations on the situation.457

4.3.2. Thomas Lubanga Dyilo The ICC's first case against Thomas Lubanga Dyilo was built on the prohibition of the recruitment of children under the age of fifteen into an armed group and the active use of children younger than fifteen years old to participate in hostilities in an armed conflict of international or non-international character.458 Thomas Lubanga was born in 1960 in the Democratic Republic of Congo (DRC) and belongs to the ethnic group of the Hema. Between 1 September 2002 and 13 August 2003,459 he was the president of the UPC/FPLC, commander in chief of its army and the group's political leader.460 On 10 February 2006, an

454 ICC, Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Judgement pursuant to Article 74 of the Statute, 41–46; International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Democratic Republic of Congo. Prosecutor v. Bosco Ntaganda: Decision Pursuant to Article 61 (7) (a) and (B) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda (Case no. ICC-01/04-02/06: The Hague, 9 June 2014), 6. 455 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet; ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Bosco Ntaganda: Case Information Sheet. 456 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet. 457 International Criminal Court (ICC), ‘Situation in the Democratic Republic of the Congo’, International Criminal Court, accessed 26 June 2016, https://www.icc-cpi.int/drc. 458 Parmar, Children and Transitional Justice, 75; Fisher, Transitional Justice for Child Soldiers, 5. 459 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet. 460 ICC, Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Summary of the ‘Judgement pursuant to Article 74 of the Statute’ (Case no. ICC-01/04-01/06: The Hague, 2012), 15. 54 arrest warrant was issued for him under seal.461 At that moment Lubanga had already been arrested and he was in prison in Kinshasa, DRC accused of committing international crimes which are part of the DRC's national law.462 On 16 March 2006 he was then transferred to the ICC's facilities in The Hague and his warrant of arrest was unsealed the next day.463 The warrant of arrest revealed that Lubanga was only charged with the enlistment and conscription of children under the age of fifteen in the FPLC and using these children to participate actively in hostilities in an armed international or non-international conflict. The limited number and scope of the charges are due to the ICC's principle of complementarity.464 According to this principle, the ICC can only prosecute an individual if the state, which has jurisdiction, is unwilling or unable to prosecute the individual.465 Thus, as Lubanga was already facing charges in the DRC, the ICC exclusively prosecuted him for charges which were not covered by the DRC, which are the crimes of recruitment and use of child soldiers.466 On 29 January 2007, the judges of the pre-trial chamber confirmed the charges against Lubanga and his trial opened two years later on 26 January 2009. Lubanga's trial lasted for over three years and was marked by the trial being stayed on two occasions due to issues about the disclosure of evidence,467 which nearly resulted in the collapse of the case.468 On 14 March 2012, the Trial Chamber judged Thomas Lubanga Dyilo to be guilty of recruiting children under the age of fifteen into the UPC/FPLC and of using them to participate actively in hostilities.469 He was sentenced to fourteen years in prison.470 The judgement and the sentence were upheld on appeal. However, judge Sang-Hyun Song ruled that Lubanga should only be convicted of one crime, namely child soldiering and not for the enlistment, conscription and use of child soldiers separately.471

461 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet. 462 Graf, ‘The International Criminal Court and Child Soldiers’, 946–47. 463 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet. 464 Graf, ‘The International Criminal Court and Child Soldiers’, 946–47. 465 Schabas, An Introduction to the International Criminal Court, 16. 466 Graf, ‘The International Criminal Court and Child Soldiers’, 947. 467 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet. 468 McBride, The War Crime of Child Soldier Recruitment, 180. 469 Graf, ‘The International Criminal Court and Child Soldiers’, 946. 470 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet. 471 Thijs B. Bouwknegt, ‘(Un)Reasonable Dissent? The Lubanga Trial Comes to Close’, Justice in Conflict, 4 December 2012. 55

Lubanga's trial and judgement have brought forward a number of important issues for the ICC when handling a case which includes the charges of enlisting, conscripting and use of child soldiers. When the first former child soldier was called to testify before the Trial Chamber on 29 January 2009 it became evident that child soldier witnesses are particularly vulnerable. The former child soldier ended up withdrawing his testimony after having partially made his statement. The presiding judge Fulford suggested that the witness was confused by the amount of different people he had spoken to in the course of the investigation and trial preparation. On 10 February 2009, the witness returned to give his testimony. This time, the setting in which he testified was changed. He was allowed to speak freely without having to answer a series of questions from the prosecutor as it is the usual procedure. Furthermore, the number of people in the courtroom was reduced and he was shielded from the direct view of Lubanga. These changes were inspired by the UN Guidelines on Justice for Child Victims and Witnesses of Crime. The ICC learned from the incident and maintained the newly introduced measures for the appearance of the following former child soldiers in front of the ICC.472 A further issue concerning child witnesses was that several prosecution witnesses stated that they had been coached about what to testify in court.473 Prosecution Witness 15 said that "[h]e [intermediary 316, who had assisted Office of the Prosecutor (OTP) investigators] said you have to change your name; in other words, there was a story that they were telling to the witnesses... [I]nstead of letting me tell the true story of what took place and instead of letting me describe all of the events that I lived through."474 This testimony brought to light that three intermediaries had told the witnesses what to say in court and had paid them to lie. The Office of the Prosecutor used the intermediaries, which were mostly working for non-governmental organizations (NGOs), to find possible witnesses and speak with them in order to find out if they were suitable witnesses.475 Intermediaries were employed to use existing connections between NGOs and UN agencies with locals on the ground.476 In the final judgement, the testimonies of all nine former child soldiers called as witnesses by the prosecution were excluded as evidence because the witnesses' testimonies were assessed to be unreliable or dishonest by the judges.477

472 McBride, The War Crime of Child Soldier Recruitment, 178–80. 473 Ibid., 180. 474 Ibidem. 475 Ibidem. 476 Ibid., 182. 477 ICC, Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Judgement pursuant to Article 74 of the Statute, 218. 56

A number of questions resolved in the Lubanga judgement have already been discussed in Chapter 4.2.2. However, two additional points need to be mentioned. First, Lubanga's defence advocated that for the conscription or enlistment of children under the age of fifteen to be an offence, the purpose of the enlistment or conscription has to be to use the children in hostilities. This argument was rejected by the trial chamber, which stated that the recruitment is an offence independent of the purpose of the recruitment.478 Second, the investigators found that many female child soldiers suffered through sexual violence and rape. Yet, the prosecutor did not charge Lubanga with sexual violence.479

4.3.3 Bosco Ntaganda Bosco Ntaganda, also known as "Terminator Tango" of "The Terminator", was born in 1973 in Rwanda. He fled from Rwanda as a teenager after attacks on Tutsis and joined the Rwandan Patriotic Front (RPF) rebel group in Uganda in 1990, which in 1994 brought an end to the genocide in that country. After having fought for several different rebel groups, Ntaganda enlisted with the UPC in the DRC in 2002. In the UPC he became the chief of military operations under Lubanga. Yet, after three years in the UPC Ntaganda joined the rebel group Congrès national pour la défense du peuple (CNDP).480 In the DRC Ntaganda is known as a leader with a hands-on approach and who personally participates in military operations. He was filmed in 2008 while commanding his troops in the Kiwanja village. That day 150 people were killed there. In 2009, a peace agreement was reached between the government of the DRC and CNDP. Consequently, Ntaganda was promoted to the rank of a general in the national army. However, in April 2012 Ntaganda defected from the army481 and founded the rebel group M23.482 After losing a power struggle in the M23, Ntaganda surrendered to the United States embassy in Rwanda in March 2013.483 In first warrant of arrest issued in August 2006 Ntaganda was charged with the conscription, enlistment and use of child soldiers in the UPC,484 just like his superior

478 Graf, ‘The International Criminal Court and Child Soldiers’, 958. 479 ICC, Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Summary of the ‘Judgement pursuant to Article 74 of the Statute’, 11. 480 Penny Dale, ‘Profile: Bosco Ntaganda the Congolese “Terminator”’, BBC News, 28 August 2015, accessed 12 May 2016, http://www.bbc.com/news/world-africa-17689131. 481 Ibidem. 482 Agence France Presse, ‘Bosco Ntaganda in the ICC: Profile of the Terminator’, 26 March 2013, accessed 17 May 2016, http://www.telegraph.co.uk/news/worldnews/africaandindianocean/democraticrepublicofcongo/9953920/Bosco- Ntaganda-in-the-ICC-profile-of-the-Terminator.html. 483 Dale, ‘Profile’. 484 International Criminal Court (ICC), Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Bosco Ntaganda: Warrant of Arrest (Under Seal) (Case no. ICC-01/04-02/06: The Hague, 2006), 4. 57

Lubanga.485 However, in May 2012 the warrant of arrest was updated. It contained five counts of crimes against humanity and thirteen counts of war crimes,486 including "rape, sexual slavery, enlistment and conscription of child soldiers under the age of fifteen years and using them to participate actively in hostilities."487 After his initial appearance at the ICC on 26 March 2013, the charges against him were confirmed on 9 June 2014. On 2 September 2015, the trial against Bosco Ntaganda opened at the ICC.488 The novelty of the case against Bosco Ntaganda is that in addition to the recruitment and use of child soldiers, the prosecutor has added the charges of sexual slavery and rape of child soldiers.489 However, Ntaganda's defence argued that rape and sexual slavery of child soldiers are not part of the crimes included in the Rome Statute and that the ICC does therefore not have jurisdiction. In order to establish if the ICC has jurisdiction over these charges, the judges needed to look at Article 3 Common of the Geneva Conventions and the Article 4 (1) and (2) of the Additional Protocol II. These articles concern the protection of persons not partaking in hostilities. The key question is if the children under fifteen were at the time, when they were raped or underwent sexual slavery, partaking actively in hostilities or not. Yet, as the recruitment and use of child soldiers are prohibited under the Rome Statute and international criminal law, it would be contradictory to take the protection afforded to children under fifteen years old away from them, because they joined an armed group, even if this is against the law. Thus the judges concluded that children under fifteen only lose their international humanitarian law protection in the moment when they actively participate in hostilities. However, sexual slavery and rape do not take place during the hostilities. Thus, the child soldiers under the age of fifteen are protected by international humanitarian law against sexual slavery and rape and therefore the ICC has jurisdiction. The Ntaganda case has therefore broadened the scope of child soldier related charges possible at the ICC. As of June 2016 the trial chamber heard testimonies from twenty witnesses.490

485 International Criminal Court (ICC), Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Warrant of Arrest (Case no. ICC-01/04-01/06: The Hague, 22 August 2006), 4. 486 ICC, Situation in the Democratic Republic of the Congo. Prosecutor v. Bosco Ntaganda: Case Information Sheet. 487 Ibidem. 488 Ibidem. 489 ICC, Pre-Trial Chamber II, Situation in the Democratic Republic of Congo. Prosecutor v. Bosco Ntaganda: Decision Pursuant to Article 61 (7) (a) and (B) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, 28–30. 490 Ibidem. 58

4.4 Dominic Ongwen at the ICC After surrendering in the Central African Republic (CAR) to a group belonging to the Muslim militia Seleka, Ongwen was handed over to US special forces stationed in the CAR. The special forces then turned Ongwen over to the Ugandan army, which transferred him to the ICC in The Hague, The Netherlands.491 Dominic Ongwen had his initial appearance in front of the Pre-Trial Chamber II on 26 January 2015.492 During his appearance his identity was confirmed, it was ensured that Acholi is the only language Ongwen fully speaks and understands and he was informed of the crimes he is alleged to have committed as well as his rights under the Rome Statute.493 In the warrant of arrest for Dominic Ongwen issued on 8 July 2005, it is alleged that he is criminally responsible for committing three counts of crimes against humanity, namely murder, enslavement and other inhumane acts between 1 July 2002 and 31 December 2005. Additionally, he is alleged to have committed the war crimes of murder, cruel treatment, attacks against the civilian population and pillaging. These crimes were committed in the context of the attack on or about 20 May 2004 on the Lukodi internally displaced people's camp (IDP camp).494 As nearly ten years had passed between the issuance of the warrant of arrest and Ongwen's initial appearance in court, the prosecutor was forced to update the case against Ongwen495 until 21 December 2015, when the prosecution filed the Document Containing the Charges.496 Additional investigations by the office of the prosecutor also resulted in the expansion of the case.497 In addition to the attack on Lukodi IDP camp, the attacks on Padjule, Odek and Abok IDP camps were added.498 This led to an increase in the number of charges from initially seven to a total of seventy.499 Ongwen's defence counsel Krispus Ayena Odongo remarked that

491 Cakaj, ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’. 492 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Initial Appearance, 1. 493 Ibid., 3–6. 494 International Criminal Court (ICC), Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Warrant of Arrest for Dominic Ongwen (Case no. ICC-02/04-01/15: The Hague, 8 July 2005), 1–10. 495 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Initial Appearance, 13. 496 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 3. 497 Wairagala Wakabi, ‘ICC Prosecutor Investigates Additional Charges Against LRA Commander Ongwen’, International Justice Monitor, 19 May 2015. 498 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges, 8–34. 499 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges. 59

"[t]his is the largest number of counts against anyone accused before the International Criminal Court or the ad hoc tribunals. You can find on the screen a sample of a few cases. Omar Al-Bashir has 10 charges; Slobodan Milosevic, 66 charges; Joseph Kony, the leader of the LRA, 33 charges. Your Honour, the question would be asked did Ongwen commit more atrocities than his mentor, than his commander-in-chief, than Joseph Kony himself?"500

The immense number of charges is due to the fact that the prosecution has not united the same offences in a single count, but has charged each offence for each attack separately. Furthermore, often the same offence is a war crime and a crime against humanity and is therefore charged twice even in the context of the same attack.501 In addition to the above mentioned crimes, Ongwen was also charged with torture as a crime against humanity and a war crime,502 persecution of civilians,503, attempted murder as a crime against humanity and a war crime,504 outrages upon personal dignity as a war crime,505 destruction of property as a war crime506 as well as nineteen counts of sexual and gender- based crimes, which include charges such as rape, sexual slavery, forced marriage and forced pregnancy. Eleven of these counts concern sexual and gender-based crimes directly committed by Ongwen.507 These counts were not made public before the confirmation of charges hearing508 and were discussed in closed session during the hearing.509 However, the charges were made public in the decision on the confirmation of charges against Dominic Ongwen on 23 March 2016.510

500 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 47. 501 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 16–17. 502 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges, 12. 503 Ibid., 13. 504 Ibid., 19. 505 Ibid., 20. 506 Ibid., 27. 507 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen, 90–102. 508 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges, 35–40. 509 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016, 29–41. 510 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen, 39–60. 60

Most importantly Ongwen was charged with the conscription and use of child soldiers.511 He is accused of personally using children under the age of fifteen as escorts, ordering the abduction of children, organising military attacks in which children under fifteen partook, giving children military training and not trying to prevent the recruitment and use of child soldiers.512 Ongwen is, therefore, the first person charged with having committed the same crimes of which he is also a victim.513 Pursuant Article 61 of the Rome Statute, the pre-trial chamber has to hold a confirmation of charges hearing within a reasonable time period after the person was handed over to the ICC.514

"The purpose [of the confirmation of charges hearing] is for the parties and for the participants to make their submissions on the question whether there is or there is not sufficient evidence to establish substantial grounds to believe that Dominic Ongwen committed each of the crimes with which he is charged by the Prosecutor and accordingly must be committed, or not, or partly to a Trial Chamber for trial on those charges."515

The confirmation of charges hearing in the ICC's case against Dominic Ongwen was held between the 21 and 27 January 2016 in the The Hague.516 Ledio Cakaj observed:

"It must be strange being in Dominic Ongwen’s shoes. Suited up in a large room in a foreign country with fancy lawyers and judges staring him down, accusing him of unspeakable crimes. No wonder he seems amused, bewildered and confused. The legal proceedings must be particularly outlandish to a man, who, snatched from his family as a child, tried to excel at whatever life threw at him, only for life to change the script over and over again. And it must be particularly

511 ICC, Office of the Prosecutor (OTP), Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges, 45–47. 512 Ibid., 46–47. 513 Nolen and Baines, ‘The Making Of A Monster’. 514 UNGA, Rome Statute of the International Criminal Court, Art. 61. 515 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 3. 516 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen, 7. 61

frustrating for him to be compared to Joseph Kony, a man whose clutches Ongwen has tried to escape for at least the last decade."517

On 23 March 2016, the entirety of the charges was confirmed by the Pre-Trial Chamber II.518 As of June 2015, Dominic Ongwen is awaiting the start of his trial in the ICC detention facility in Scheveningen, The Netherlands.519

4.5 The Issue of Victim-Perpetrators at the ICC In April 2015, law professor Marc Drumbl wrote in an article concerning the ICC trial of Dominic Ongwen:

"Ongwen’s trial could serve the narrative function of unpacking the complexities of child soldiering. [...] I fear that, by focusing the eyes of the world community on a boy soldier who became a leader of an infamous African rebel group, the Ongwen proceedings will reinforce sensationalism. It would be a shame if criminally prosecuting a former child soldier ended up diverting the gaze of the international community away from the complexities of child soldiering. It would be a greater shame if the Ongwen prosecution transfixed that gaze towards well- worn stereotypes. This could happen if the defense presents him only as an innocent child, and the prosecution responds by starkly ignoring the fact that he had entered the LRA as a child and came of age in such a dismal setting."520

Disproving Drumbl's fears, the prosecution did not ignore the fact that Ongwen was a child soldier,521 but acknowledged that he had been abducted as a child.522 "The tragedy of this case, the counterpoint to the narrative of repeated violent atrocities, is the fact that not only was Dominic Ongwen the perpetrator of these crimes, he was also a victim,"523 stated Ben Gumpert, the lead counsel for the prosecution.524 Gumpert nuanced the picture painted of Ongwen even more. He indicated that some witnesses had testified positively about Ongwen, mentioning his kind and considerate nature, while others had given testimonies which

517 Cakaj, ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’. 518 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen. 519 International Criminal Court (ICC), ‘Ongwen Case’, International Criminal Court, accessed 19 May 2016, https://www.icc-cpi.int/uganda/ongwen. 520 Drumbl, ‘The Ongwen Trial at the ICC’. 521 Ibidem. 522 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 19. 523 Ibid., 18–19. 524 Ibid., 19. 62 accentuated negative behaviour, such as Ongwen ordering to commit violence.525 When asked by Judge Perrin de Brichambaut whether the prosecution had investigated if evidence exonerating Ongwen existed,526 Gumpert replied that nineteen documents exist which contain exclusively exonerating information. However, Gumpert added, a great number of documents included incriminating and exonerating material at the same time. Yet, he also specified that none of these documents reduces Ongwen's criminal responsibility decidedly or eliminates it totally.527 By acknowledging the existence of the exonerating evidence the senior counsel for the prosecution again refused to adhere to the simplistic view of Ongwen as either victim or perpetrator. Gumpert also pointed out that victim-perpetrators can not only be found in international law but are also very common in domestic law.528

"The individual who displays 100 percent consistency is a rare specimen indeed: Good men can do bad things and bad men can do good things. The phenomenon of the perpetrator-victim is not restricted to international courts such as this one. It's familiar in all criminal jurisdictions. Drug dealers rarely boast serene untroubled childhoods; child abusers are overwhelmingly likely to have been abused themselves as children."529

Thus, Gumpert insisted that a victim-perpetrator status does not allow an individual to evade prosecution. He asserted that every person has choices to make and that every person has to carry the moral responsibility of these choices.530 Contrary to the dominant image of child soldiers as defenceless passive victims,531 Ongwen had the ability to make choices. In his position of military commander, he could have instructed his soldiers to surrender to the Uganda People's Defence Force (UPDF) troops, but he did not.532 Yet, even before obtaining the position of a commander he could have escaped or he could have remained in the mid- ranks.533 However, as Ongwen did not take any of those alternative decisions, he must stand trial for his crimes.534 However, Gumpert stated that "the circumstances in which [Ongwen]

525 Ibidem. 526 Ibid., 65–66. 527 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 27 January 2016, 17–18. 528 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 19. 529 Ibidem. 530 Ibid., 19–20. 531 Drumbl, Reimagining Child Soldiers in International Law and Policy, 7. 532 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 20. 533 Ibid., 21. 534 Ibid., 22. 63 himself was abducted and conscripted into the LRA may amount to some mitigation of sentence in the event that he's convicted of these crimes."535 Therefore, he called for Ongwen to be tried, but for reducing the sentence due to Ongwen having been abducted as a child.536 Ongwen's defence started its chaotic presentation of arguments by insisting that Ongwen had been abducted as a child and had not been given the legal protection he had been entitled to as a child.537

"Your Honours, if the laws of war were meant to protect children like Dominic from being forcibly recruited into the ranks and files of the LRA and forced to engage in hostilities, it is inapposite to suggest that individual criminal liability can then be imposed upon those like him who should have been protected but ended up enslaved by Joseph Kony."538

Thus, Krispus Ayena Odongo, senior counsel for the defence, argued that because Ongwen had not benefited from the special protection promised to children in international humanitarian law, he could not be held legally responsible for the crimes he allegedly committed.539 Odongo also argued that putting Ongwen on trial is double jeopardy because he already suffered when he was abducted by the LRA and bringing Ongwen's case to trial would mean to make him suffer again for being abducted.540 It became thus immediately evident that the defence tried to present Ongwen as the helpless, innocent victim and do exactly what Drumbl had warned against.541 Dominic's defence then continued its submission by stating that Ongwen suffered from the Stockholm syndrome.542 Yet, the defence counsel did not further elaborate on this statement. It is therefore unclear if the defence intends to rely on Article 31 (1) (a) during the trial543 and argue that Ongwen "suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or

535 Ibidem. 536 Ibidem. 537 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 55. 538 Ibid., 56. 539 Ibidem. 540 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 27 January 2016, 34. 541 Drumbl, ‘The Ongwen Trial at the ICC’. 542 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 57. 543 International Criminal Court (ICC), Office of the Prosecutor (OTP), Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Prosecution’s Request to Order the Defence to Comply with Rule 79 (Case no. ICC-02/04-01/15: The Hague, 16 May 2016), 3. 64 her conduct, or capacity to control his or her conduct to conform to the requirements of law."544 The defence's main argument was that Dominic Ongwen had acted under duress and is therefore not criminally responsible for any crime he might have committed.545 Michelle Oliel, assistant counsel for the defence, outlined that four elements of crime need to be fulfilled for a person not to be criminally responsible based on duress. First, the person has to be threatened with immediate death or serious bodily harm.546 Oliel argued that Dominic Ongwen was menaced with death or serious bodily harm for the entire period he spent in the LRA.547

"The very threats and fears under which Dominic lived never dissipated when one remained in the hands of the Lord's Resistance Army. It is the Defence's submission that Dominic remained under that same threat and imminent bodily harm, not only at the time of his abduction, but even as he rose among the ranks."548

However, the legal representative of victims and the prosecution criticised that Oliel did not provide evidence to illustrate the threat Ongwen was under.549 Yet, Oliel claimed that not only Ongwen but also his family and his village had been in danger. Protected Prosecution Witness P-240, one among fourteen defence witnesses making similar statements, testified that Kony had threatened to kill his entire village should he try to escape.550 However, the defence did not produce evidence of an incident where the family or the village of an LRA fighter were attacked after he or she was escaped. Therefore, the defence did not show if a threat had to be taken seriously or if it remained empty words. The second element of crime is that the "person [needs to] act[…] necessarily and reasonably to avoid this threat, provided that that person does not intend to cause greater harm than the one sought to be avoided."551 Oliel assured the pre-trial chamber that Ongwen did not

544 UNGA, Rome Statute of the International Criminal Court, 20. 545 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 26 January 2016, 10. 546 Ibid., 4. 547 Ibidem. 548 Ibid., 6. 549 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 27 January 2016, 17–18. 550 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 26 January 2016, 6–7. 551 Ibid., 4. 65 intend to cause greater harm.552 However, she did not present any evidence to support her statement and did not address the fact that Ongwen might have caused greater harm even though it was not his intention. Third, "the threat [of death or serious bodily harm] must either be made by persons or the very circumstances that are beyond a person's control."553 Oliel insisted that Ongwen was threatened by "persons and the circumstances of his abduction, of his continued enslavement in the organisation."554 However, the assistant counsel again failed to provide detailed information to support her statement. Yet, she asserted that escaping the LRA was not as easy as depicted by the prosecution and the legal representative of victims. As the children were indoctrinated and were made to believe that Kony possessed spiritual powers, escaping the LRA required that the abductees not only possess the physical strength and opportunity to run away but also that they have the mental capacity to resist indoctrination.555 Therefore, Oliel argued, that the fact that Ongwen did not escape is not a valid argument to deny the defence of duress.556 According to Oliel, the fourth element of crime needing to be fulfilled for duress to be present is the existence of a link between the threat and the duress.557 However, it is not apparent where Ongwen's defence addressed this link and if it exists. Yet, Oliel came to the conclusion that the judges should not confirm the charges based on the argument of duress.558 Paolina Massidda, the legal representative of victims, insisted that she does not challenge the fact that Ongwen was forced to become a child soldier, but that this alone does not free him from any criminal responsibility. Massidda indicated that the Rome Statute does not include a clause which allows for the exclusion of criminal responsibility on the basis of being abducted and forced to become a child soldier.559 Furthermore, she pointed out that the crimes committed by Ongwen under the age of eighteen fall outside the jurisdiction of the ICC, but that he is charged with crimes he allegedly committed at an older age and that the court has jurisdiction over these crimes.560 In addition, the defence of duress was challenged by Massidda. She stated that "[d]uress is an excuse that is premised on the idea that the actor

552 Ibid., 7. 553 Ibid., 4. 554 Ibid., 7. 555 Ibid., 7–9. 556 Ibid., 7. 557 Ibid., 4. 558 Ibid., 10. 559 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 15. 560 Ibidem. 66 is incapable of making a moral choice due to the overwhelming force of a threat."561 However, she insisted that it is unreasonable to say that a person like Ongwen, older than eighteen and in a leadership position in the LRA, was unable to judge right from wrong and act accordingly.562 Furthermore, repeating the lead counsel for the prosecution's argument, she argued that Ongwen would have been able to leave the LRA, but decided against it.563 Moreover, Massidda explained that the defence of duress also contains a proportionality requirement, which presupposes "that the person does not intend to cause a greater harm that the one sought to be avoided."564 Therefore, she asked if

"[f]rom the view of victims can it be said that murder of a greater number of civilians or the abduction of a greater number of children and adults is a greater harm than one's own possible individual death so that the proportionality element of duress under the Rome Statute would not be satisfied?"565

Massidda left it up to the judges to answer this question. Her last point of critique concerning the defence's interpretation of duress was that the defence invoked duress as an excuse for Ongwen's deeds. However, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) both concluded that duress cannot serve as a complete defence and exonerate the accused from all charges.566 Therefore, Massidda called for the Ongwen case to be brought to trial.567 The judges of the Pre-Trial Chamber II agreed with the argumentation of the prosecution and the legal representatives of victims and refused to dismiss the charges against Ongwen due to the failure of the international community to administer the protection Ongwen deserved as a child or due to duress.568 The judges Tarfusser, Perrin de Brichambaut and Chung remarked that the defence's claim that "the international legal protection as child soldier [...] should include, [...], an exclusion of individual criminal responsibility for the

561 Ibid., 16. 562 Ibidem. 563 Ibidem. 564 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 27 January 2016, 19. 565 Ibid., 20. 566 Ibid., 20–21. 567 Ibid., 24. 568 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen, 66–67. 67 crimes under the Statute that [Ongwen] may have committed"569 is without legal basis. Accordingly, they refused to reject the charges against Ongwen on this ground.570 Concerning duress raised as a ground to exclude Ongwen's criminal responsibility, the judges highlighted that the charges in the confirmation of charges hearing are only then not confirmed when the evidence for duress is absolutely airtight. Alternatively, the argument of duress should be discussed during the trial.571 Furthermore, the judges stated that the defence did not present any evidence proving that Ongwen was threatened with imminent death or serious bodily harm when he allegedly committed the crimes he is charged with. The evidence given indicated that Ongwen might have been punished later, but this does not fulfil the criteria of imminence.572 Moreover, the judges argued in line with the prosecution and the legal representatives of victims when they affirmed that Ongwen remained willingly in the LRA. The fact that a large number of abductees escaped the LRA revealed that "the circumstances of Dominic Ongwen's stay in the LRA (which in the Defence claim constitutes the source of the threat) cannot be said to be beyond his control."573 Lastly, the judges of the Pre-Trial Chamber II observed that the defence did not explain "how Dominic Ongwen's conduct [...] would be necessary (or reasonable) to avoid the alleged threat and could, in any case, satisfy the required intent of proportionality."574 In the case of several crimes Ongwen allegedly committed, he could have chosen alternative, less harmful actions.575 Therefore, the judges refused to dismiss the charges against Dominic Ongwen due to duress and they confirm all the charges.576 The prosecution, defence and legal representatives of victims agreed that Ongwen was abducted by the LRA as a child and seem to believe that it is an important fact, considering that all of them mention it during their submissions.577 However, the judges of the Pre-Trial Chamber II gave this fact little attention in their decision. Over the 104 pages of the decision the abduction of Ongwen is mentioned exactly once.578 In the section The LRA and Dominic Ongwen's status within the organisation of the judgement, the judges focused on the

569 Ibidem. 570 Ibid., 67. 571 Ibidem. 572 Ibidem. 573 Ibid., 68. 574 Ibidem. 575 Ibidem. 576 Ibid., 69–70. 577 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 19; ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 15, 55. 578 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen, 66. 68 organisational structure of the LRA and Ongwen's position as a commander in this structure. However, they did not mention that Ongwen was abducted and forced to become a child soldier.579 The judges only mentioned it in the section Grounds raised by the Defence to exclude Dominic Ongwen's individual criminal responsibility, but Ongwen's abduction did also there not hold the judges' attention for long. "Dominic Ongwen, who was abducted by the LRA in 1987 at a young age and made a child soldier,"580 they wrote and they did not discuss his abduction further.581 Moreover, as the judges rejected the grounds raised to exclude Ongwen's criminal responsibility, they discredit the importance of Ongwen's abduction even further. Consequently, contrary to Drumbl's fears it ended up being the judges and not the prosecution who "starkly ignored the fact that [Ongwen] had entered the LRA as a child and came age in such a dismal setting."582 In conclusion, the different actors at the ICC do not present Ongwen in the same manner. While Ongwen's defence presented him as the faultless, innocent victim of his abduction and the circumstances in which he grew up, the prosecution and legal representatives of victims see him as a victim-perpetrator. However, although the prosecution and the legal representatives of victims agree that Ongwen was a victim, because he was abducted by the LRA as a child583 and that he is criminally responsible for the crimes he committed between 1 July 2002 and 31 December 2005,584 thus was a perpetrator during this period, they do not agree on how this is relevant for the proceedings before the ICC. The senior counsel for the prosecution, Ben Gumpert, argued that Ongwen should be treated as an alleged perpetrator during the trial phase and only after he has been declared guilty should his victim-perpetrator status be taken into consideration in order to mitigate his sentence.585 The legal representatives of victims acknowledged that Ongwen used to be a victim, but argued that the victims want Ongwen to be punished.586 They did not state clearly that his abduction was a factor allowing for the mitigation of the sentence, should Ongwen be convicted. Mr.

579 Ibid., 25–27. 580 Ibid., 66. 581 Ibid., 66–69. 582 Drumbl, ‘The Ongwen Trial at the ICC’. 583 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 19; ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 15. 584 ICC, OTP, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Pre-Confirmation Brief, 21st December 2015, ICC-2/04-01/15-375-Conf AnxC, 8; ICC, Victims’ Legal Representatives, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwe: Victims’ Pre-Confirmation Brief, 19. 585 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 22. 586 ICC, Victims’ Legal Representatives, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwe: Victims’ Pre-Confirmation Brief, 19. 69

Cox, the legal representative of 1434 victims,587 stated that "[s]uch childhood circumstances may or may not be relevant in mitigating -- mitigation of sentence."588 Thus, the legal representatives of victims acknowledged Ongwen's victim-perpetrator status, but consider him a perpetrator during the confirmation of charges hearing. The judges deem Ongwen to be a perpetrator. They ignore the fact that Ongwen was a victim in the decision on the confirmation of charges. They could have argued that it is up to the trial chamber to decide if his former child soldier status matters and in what way it should be considered. Yet, they decided to take the easy way out and disregard it entirely, even though all the participants agreed on the fact that he was abducted. However, this analysis is based on the confirmation of charges hearing and at the time of writing the trial against Ongwen had not yet started. His trial will allow for a better insight in the question discussed above.

4.6 Intermediary Conclusion The fourth chapter analysed how the International Criminal Justice system deals with victim- perpetrators. International criminal law, including the provisions prohibiting the enlistment, conscription and use of children under fifteen to participate actively in hostilities, is designed for cases where a clear distinction between the perpetrator and the victim exists and the perpetrator commits a crime on the faultless victim. It does not consider cases where the categories of victims and perpetrators are not clear-cut, such as the case of child soldiers, and where victim-perpetrators commit international crimes. Consequently, under international criminal law a child soldier, who is considered a victim due to being a child, abruptly turns into a perpetrator when he or she reaches majority. Moreover, recent developments, such as the Lubanga and Ntaganda case at the ICC, have further clarified the law criminalising the enlistment, recruitment and use of children under the age of fifteen and have extended the protection attributed to child soldiers. However, these cases have failed to shed light on how the ICC should handle cases of victim-perpetrators, such as Dominic Ongwen. The recent confirmation of charges hearing against Dominic Ongwen has revealed that guidelines, which explain how to handle victim-perpetrators at the ICC, are non-existent. Therefore, the ICC is unsure of how to deal with the case of a victim-perpetrator in practice and no consensus exists between the parties and participants on if and how the ICC should consider the victim-perpetrator status of an accused. Some ignore either his perpetrator or victim side and present him as a "pure" victim or perpetrator. And even those who

587 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016, 2. 588 ICC, Pre-Trial Chamber II, Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016, 33. 70 acknowledge that he is a victim-perpetrator do not agree on how to handle it and how to include it in the trial. It will be his upcoming trial and judgment which will clarify the question in practice.

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5. Conclusion The principal research question of this thesis is where the boundary lies between being a victim and being a perpetrator. In order to analyse this research question in detail, three subsidiary questions have been answered in the chapters two, three and four. The first subsidiary question - analysed in chapter two - is how the question of where the boundary lies between being a victim and being a perpetrator has been discussed in the theory presented in the academic literature. Perpetrator research has focused on revealing how and why ordinary people turn into perpetrators. Yet, since the emergence of this field of study at the end of the Second World War in Europe in 1945, scholars have been unable to reach a consensus on the explanation. With the addition of the concepts of victim-perpetrators and child soldiers to the discussion, the questions asked have become more complex and so have the answers provided. Consequently, scholarship has moved further away from reaching a consensus on even the question of why and how ordinary people turn into perpetrators. In addition, scholars disagree on the definition of the victim-perpetrator and the child soldier and if a child soldier is a victim, perpetrator or victim-perpetrator. This makes reaching a consensus on the essential questions on perpetrators close to impossible. Yet, the impending start of the trial against the alleged former LRA commander Dominic Ongwen at the ICC, these questions have gained new importance. The answers have potentially important consequences on the lives of Ongwen, his family and his victims. The second subsidiary question "to what extent theory squares with reality" has been evaluated in chapter three. The reality of the LRA conflict provided answers to how victim- perpetrators are created and what their roles are. The analysis of the conflict revealed that victim-perpetrators are created by children being abducted by LRA soldiers and forced to become child soldiers and by the forced wives of LRA soldiers giving birth to children who are then raised as child soldiers. The victim-perpetrators also fulfil different roles in the conflict, such as being soldiers, porters, cooks or forced wives to soldiers. However, the reality of the LRA conflict does not provide an answer to where the boundary lies between being a victim and being a perpetrator. Analysing Dominic Ongwen's career in the LRA does not allow to pinpoint where he crossed the boundary between being a victim and being a perpetrator. He gradually transitioned from being a victim to being a perpetrator and the exact boundary between being a victim and being a perpetrator - if it exists - is unclear. The third subsidiary question - answered in chapter four - is how the international criminal justice system deals with victim-perpetrators. International criminal law is designed for cases where a clear distinction exists between a victim and a perpetrator. The provisions in

72 the Rome Statute prohibiting the enlistment, conscription and use of child soldiers to participate actively in hostilities were created for the situation where a perpetrator commits a crime on a victim. The possibility of a victim-perpetrator committing a crime had not been considered by lawmakers. Furthermore, the recent ICC cases including child soldiering charges have not advanced the debate on victim-perpetrators. Consequently, the ICC is unsure how to handle the case of the victim-perpetrator Dominic Ongwen in practice without any guidelines from scholars and lawmakers or insights from the reality of the LRA conflict to rely on. The parties and participants in Ongwen's case do not hold a common position on the question if and how the status of a victim-perpetrator should be included in the trial. The defence argued that Ongwen is a victim and decided to ignore his perpetrator status. The judges of the Pre-Trial Chamber II took the exactly opposite stance and declared him a perpetrator while ignoring Ongwen's abduction. The legal representatives of the victims and the prosecution agreed that Ongwen holds the position of a victim-perpetrator which he obtained through his abduction and his alleged position as a high-ranking LRA commander. However, they do not agree to what extent his victim status should be included in the trial and judgement. In conclusion, neither the theory presented in academic literature, nor the reality of the LRA conflict, nor the international criminal justice system have provided an answer to the question where the boundary lies between being a victim and being a perpetrator. However, the upcoming trial against Dominic Ongwen is going to shed more light on the question and advance the field of study by hopefully providing some answers.

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6. Bibliography

6.1. Primary Sources African Union. The African Charter on the Rights and Welfare of the Child (ACRWC). CAB/LEG/24.9/49, 29 November 1999. District Court of Jerusalem. Judgement against Adolf Eichmann. Case no. 40/61: Jerusalem, 11 December 1961. International Committee of the Red Cross (ICRC). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I). 1125 UNTS 3, 7 December 1978. ———. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). 1125 UNTS 609, 7 December 1978. International Criminal Court for the former Yugoslavia (ICTY), Appeals Chamber. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction. Case no. IT-94-1: The Hague, 1995. International Criminal Court. Situation in the Democratic Republic of the Congo. Prosecutor v. Bosco Ntaganda: Case Information Sheet. Case no. ICC-01/04-02/06: The Hague, 2015. ———. Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Case Information Sheet. Case no. ICC-01/04-01/06: The Hague, 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Case Information Sheet. Case no. ICC-02/04-01/15: The Hague, 2016. International Criminal Court (ICC), Defence. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Further Redacted Version of ‘Defence Brief for the Confirmation of Charges Hearing’, Filed on 18 January 2016. Case no. ICC-02/04- 01/15: The Hague, 3 March 2016. International Criminal Court (ICC), Office of the Prosecutor (OTP). Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Document Containing The Charges. Case no. ICC-02/04-01/15: The Hague, 22 December 2015. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Pre- Confirmation Brief, 21st December 2015, ICC-2/04-01/15-375-Conf AnxC, 21 December 2015.

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———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Prosecution’s Request to Order the Defence to Comply with Rule 79. Case no. ICC-02/04-01/15: The Hague, 16 May 2016. International Criminal Court (ICC), Pre-Trial Chamber I. Situation in the Democratic Republic of the Congo. Prosecutor v. Bosco Ntaganda: Warrant of Arrest (Under Seal). Case no. ICC-01/04-02/06: The Hague, 22 August 2006. ———. Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Decision on the Confirmation of Charges. Case no. ICC-01/04-01/06: The Hague, 29 January 2007. ———. Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Warrant of Arrest. Case no. ICC-01/04-01/06: The Hague, 10 February 2006. International Criminal Court (ICC), Pre-Trial Chamber II. Situation in the Democratic Republic of Congo. Prosecutor v. Bosco Ntaganda: Decision Pursuant to Article 61 (7) (a) and (B) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda. Case no. ICC-01/04-02/06: The Hague, 9 June 2014. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Decision on the Confirmation of Charges against Dominic Ongwen. Case no. ICC-02/04-01/15: The Hague, 23 March 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 21 January 2016. Case no. ICC-02/04-01/15: The Hague, 21 January 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 22 January 2016. Case no. ICC-02/04-01/15: The Hague, 22 January 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 25 January 2016. Case no. ICC-02/04-01/15: The Hague, 25 January 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 26 January 2016. Case no. ICC-02/04-01/15: The Hague, 26 January 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Confirmation of Charges Hearing - 27 January 2016. Case no. ICC-02/04-01/15: The Hague, 27 January 2016.

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———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Transcript of the Initial Appearance. Case no. ICC-02/04-01/15: The Hague, 26 January 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Video of the Confirmation of Charges Hearing - 21 January 2016. Case no. ICC-02/04-01/15: The Hague, 26 January 2016. ———. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwen: Warrant of Arrest for Dominic Ongwen. Case no. ICC-02/04-01/15: The Hague, 8 July 2005. International Criminal Court (ICC), Trial Chamber I. Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Judgement pursuant to Article 74 of the Statute. Case no. ICC-01/04-01/06: The Hague, 14 March 2012. ———. Situation in the Democratic Republic of the Congo. Prosecutor v. Thomas Lubanga Dyilo: Summary of the ‘Judgement pursuant to Article 74 of the Statute’. Case no. ICC-01/04-01/06: The Hague, 14 March 2012. International Criminal Court (ICC), Victims’ Legal Representatives. Situation in the Republic of Uganda. Prosecutor v. Dominic Ongwe: Victims’ Pre-Confirmation Brief. Case no. ICC-02/04-01/15: The Hague, 18 January 2016. International Labour Organization (ILO). Convention on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. C 182, 19 November 2000. UNGA. Convention on the Prevention and Punishment of the Crime of Genocide. United Nations, Treaty Series, Vol. 78, P. 277, 12 January 1951. ———. Optional Protocol to the Convention on the Rights of the Child. A/RES/54/263, 29 February 2002. ———. Rome Statute of the International Criminal Court. UN Doc. A/CONF.183/9, 1 July 2002. ———. United Nations Convention on the Rights of the Child (CRC). UN Doc. A/44/25, 2 September 1990.

6.2. Literature Allen, Tim. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed Books, 2006. Allen, Tim, and Koen Vlassenroot, eds. The Lord’s Resistance Army: Myth and Reality. London: Zed Books, 2010.

76

Amnesty International. ‘Breaking God’s Commands: The Destruction of Childhood by the Lord’s Resistance Army’. Amnesty International AFR 59/001/1997 (17 September 1997). Annan, Jeannie, Christopher Blattman, and Roger Horton. ‘The State of Youth and Youth Protection in Northern Uganda: Findings from the Survey for War Affected Youth’. UNICEF Uganda, September 2006. Arendt, Hannah. Eichmann in Jerusalem : A Report on the Banality of Evil. Rev. and enlarged ed. Penguin Twentieth-Century Classics. Harmondsworth etc: Penguin, 1994. ———. ‘Eichmann in Jerusalem - I’. The New Yorker. 16 February 1963. ———. ‘Eichmann in Jerusalem - II’. The New Yorker. 23 February 1963. ———. ‘Eichmann in Jerusalem - III’. The New Yorker. 2 March 1963. ———. ‘Eichmann in Jerusalem - IV’. The New Yorker. 9 March 1963. ———. ‘Eichmann in Jerusalem - V’. The New Yorker. 16 March 1963. ———. ‘Thinking and Moral Considerations: A Lecture’. Social Research 51, no. 1/2 (1984): 7–37. Arieff, Alexis, Lauren Ploch Blanchard, and Tomas F. Husted. ‘The Lord’s Resistance Army: The U.S. Response’. Congressional Research Service, 28 September 2015. Baines, Erin K. ‘Complex Political Perpetrators : Reflections on Dominic Ongwen’. The Journal of Modern African Studies 47, no. 2 (2009): 163–91. Behrend, Heike. Alice Lakwena & the Holy Spirits: War in Northern Uganda 1985-97. Oxford: Currey, 1999. Bernath, Julie. ‘“Complex Political Victims” in the Aftermath of Mass Atrocity: Reflections on the Khmer Rouge Tribunal in Cambodia’ 10, no. 1 (2016): 46–66. Blass, Thomas, ed. Obedience to Authority: Current Perspectives on the Milgram Paradigm. Mahwah, NJ: Erlbaum, 2000. Borer, Tristan Anne. ‘A Taxonomy of Victims and Perpetrators: Human Rights and Reconciliation in South Africa’. Human Rights Quarterly 25, no. 4 (2003): 1088– 1116. Bouris, Erica. Complex Political Victims. Bloomfield, CT: Kumarian Pr Inc, 2007. Bouwknegt, Thijs B. ‘Dominic Ongwen: Born at the Time of the White Ant, Tried by the ICC’. African Arguments, 20 January 2015. ———. ‘(Un)Reasonable Dissent? The Lubanga Trial Comes to Close’. Justice in Conflict, 4 December 2012.

77

Browning, Christopher R. Ordinary Men: Reserve Police Battalion 11 and the Final Solution in Poland: Reserve Police Battalion 101 and the Final Solution in Poland. New Ed. London: Penguin, 2001. Cakaj, Ledio. ‘The Life and Times of Dominic Ongwen, Child Soldier and LRA Commander’. Justice in Conflict, 12 April 2016. ———. ‘The Lord’s Resistance Army of Today’. The Enough Project, November 2010, 1– 25. Crane, David. ‘Prosecuting Children in Times of Conflict: The West African Experience’. Human Rights Brief 15, no. 3 (2008): 11–17. Dallaire, Roméo A. They Fight like Soldiers, They Die like Children: The Global Quest to Eradicate the Use of Child Soldiers. New York, NY: Walker, 2011. Doom, Ruddy, and Koen Vlassenroot. ‘Kony’s Message: A New Koine? - The Lord’s Resistance Army in Northern Uganda’. African Affairs 98, no. 390 (1 January 1999): 5–36. Drumbl, Mark A. Reimagining Child Soldiers in International Law and Policy. Oxford University Press, 2012. ———. ‘The Ongwen Trial at the ICC: Tough Questions on Child Soldiers’. openDemocracy, 4 November 2015. Ehrenreich, Rosa. ‘The Stories We Must Tell: Ugandan Children and the Atrocities of the Lord’s Resistance Army’. Africa Today 45, no. 1 (1998): 79–102. Fisher, Kirsten. Transitional Justice for Child Soldiers. Palgrave MacMillan, 2013. Goldhagen, Daniel Jonah. Hitler’s Willing Executioners: Ordinary Germans and the Holocaust. London: Little, Brown and Company, 1996. Goldhagen, Daniel Jonah, Christopher R. Browning, Leon Wieseltier, and Michael Berenbaum. ‘The “Willing executioners”/ “Ordinary Men” Debate’. Washington D.C.: United States Holocaust Memorial Museum, 8 April 1996. Graf, Roman. ‘The International Criminal Court and Child Soldiers’. Journal of International Criminal Justice 10, no. 4 (2012): 945–969. Grossman, Nienke. ‘Rehabilitation or Revenge: Prosecuting Child Soldiers for Human Rights Violations’. Georgetown Journal of International Law 38, no. 2 (2007): 323. Grover, Sonja C. Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged With Grave Conflict-Related International Crimes. 2012th ed. Heidelberg ; New York: Springer, 2012.

78

Haney, Craig, Curtis Banks, and Philip G. Zimbardo. ‘A Study of Prisoners and Guards in a Simulated Prison’. Naval Research Review, no. 30 (1973): 4–17. Hilberg, Raul. Perpetrators, Victims, Bystanders: The Jewish Catastrophe, 1933-1945. New York: HarperCollins, 1993. Honwana, Alcinda. Child Soldiers in Africa. Ethnography of Political Violence. Philadelphia, PA: University of Pennsylvania Press, 2006. Human Rights Watch. Stolen Children: Abduction and Recruitment in Northern Uganda. Vol. 15. Human Rights Watch, Nr. 7 (A). New York, 2003. Le Sage, Andre. ‘Countering the Lord’s Resistance Army in Central Africa’. Strategic Forum, July 2011. Levi, Primo. The Drowned and the Saved. New York: Vintage International, 1989. Loring, Marti Tamm, and Pati Beaudoin. ‘Battered Women as Coerced Victim-Perpetrators’. Journal of Emotional Abuse 2, no. 1 (2001): 3–14. Mæland, Bård, ed. Culture, Religion, and the Reintegration of Female Child Soldiers in Northern Uganda. New York: Lang, 2010. McBride, Julie. The War Crime of Child Soldier Recruitment. Springer Science & Business Media, 2013. Meierhenrich, Jens, ed. Genocide: A Reader. New York, NY: Oxford University Press, 2014. Milgram, Stanley. ‘Behavioral Study of Obedience’. The Journal of Abnormal and Social Psychology 67, no. 4 (1963): 371–378. Moffett, Luke. ‘Reparations for “Guilty Victims”: Navigating Complex Identities of Victim– Perpetrators in Reparation Mechanisms’. International Journal of Transitional Justice, 4 December 2015, 146–67. No Peace Without Justice, and UNICEF Innocenti Research Centre. ‘International Criminal Justice and Children’. Rome, September 2002. Nolen, Stephanie, and Erin K. Baines. ‘The Making Of A Monster’. The Globe and Mail. 25 October 2008. Parmar, Sharanjeet. Children and Transitional Justice: Truth-Telling, Accountability and Reconciliation. Harvard University Press, 2010. Pham, Phuong N., Patrick Vinck, and Eric Stover. ‘The Lord’s Resistance Army and Forced Conscription in Northern Uganda’. Human Rights Quarterly 30, no. 2 (2008): 404–11. Schabas, William A. An Introduction to the International Criminal Court. 4th ed. Cambridge etc: Cambridge University Press, 2011.

79

Sémelin, Jacques. Purify and Destroy: The Political Uses of Massacre and Genocide. London: Hurst & Company, 2013. Smeulers, Alette, and Fred Grünfeld. International Crimes and Other Gross Human Rights Violations: A Multi- and Interdisciplinary Textbook. Martinus Nijhoff Publishers, 2011. Smeulers, Alette, and Roelof Haveman, eds. Supranational Criminology: Towards a Criminology of International Crimes. Antwerp: Intersentia, 2008. Smith, Abbe. ‘The “monster” in All of Us: When Victims Become Perpetrators’. Suffolk University Law Review 38, no. 2 (2005): 367–94. Soto, José Carlos Rodríguez. Tall Grass: Stories of Suffering and Peace in Northern Uganda. Kampala: Fountain, 2009. Swaan, Abram de. The Killing Compartments: The Mentality of Mass Murder. New Haven: Yale University Press, 2015. Wakabi, Wairagala. ‘ICC Prosecutor Investigates Additional Charges Against LRA Commander Ongwen’. International Justice Monitor, 19 May 2015. Waller, James. Becoming Evil: How Ordinary People Commit Genocide and Mass Killing. New York: Oxford University Press, 2002. World Vision Uganda, and United Nations Children’s Fund (UNICEF). ‘Shattered Innocence: Testimonies of Children Abducted in Northern Uganda’. World Vision Uganda, 1994.

6.3. Websites Agence France Presse. ‘Bosco Ntaganda in the ICC: Profile of the Terminator’, 26 March 2013. Accessed 17 May 2016. http://www.telegraph.co.uk/news/worldnews/ africaandindianocean/democraticrepublicofcongo/9953920/Bosco-Ntaganda-in-the- ICC-profile-of-the-Terminator.html. BBC. ‘LRA Rebel Dominic Ongwen Surrenders to US Forces in CAR’. BBC News, 7 January 2015. Accessed 24 June 2016. http://www.bbc.com/news/world-africa- 30705649. Dale, Penny. ‘Profile: Bosco Ntaganda the Congolese “Terminator”’. BBC News, 28 August 2015. Accessed 12 May 2016. http://www.bbc.com/news/world-africa-17689131. Human Rights Watch. ‘The Christmas Massacres’. Human Rights Watch, 16 February 2009. Accessed 28 June 2016. https://www.hrw.org/report/2009/02/16/christmas- massacres/lra-attacks-civilians-northern-congo.

80

International Criminal Court (ICC). ‘ICC - About the Court’. International Criminal Court. Accessed 9 May 2016. https://www.icc-cpi.int/en_menus/icc/about%20the%20court/ Pages/about%20the%20court.aspx. ———. ‘Kony et Al. Case’. International Criminal Court, 6 October 2016. Accessed 10 June 2016. https://www.icc-cpi.int/uganda/kony. ———. ‘Ongwen Case’. International Criminal Court. Accessed 19 May 2016. https://www.icc-cpi.int/uganda/ongwen. ———. ‘Situation in the Democratic Republic of the Congo’. International Criminal Court. Accessed 26 June 2016. https://www.icc-cpi.int/drc. ———. ‘The State Parties to the Rome Statute’. International Criminal Court. Accessed 24 June 2016. https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20 states%20parties%20to%20the%20rome%20statute.aspx. Invisible Children. ‘LRA Crisis Tracker’. LRA Crisis Tracker, 4 June 2016. Accessed 10 June 2016. https://www.lracrisistracker.com/. ———. ‘LRA Crisis Tracker’. Invisible Children. Accessed 10 June 2016. http://invisiblechildren.com/program/lra-crisis-tracker/. Office of the High Commissioner for Human Rights. ‘Status of Ratification - Interactive Dashboard’. United Nations Human Rights Office of the High Commissioner, 4 May 2016. Accessed 11 May. http://indicators.ohchr.org/. United Nations Office of the Special Representative of the Secretary-General for Children and Armed Conflict. ‘International Criminal Court: UN Official Testifies In The Lubanga Case’. United Nations Office of the Special Representative of the Secretary-General for Children and Armed Conflict, 6 January 2010. Accessed 28 June 2016. https://childrenandarmedconflict.un.org/press-release/7Jan10/.

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