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A Closer Look at the Case of Dominic Ongwen

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A Closer Look at the Case of Dominic Ongwen Submitted by Constanze Vogel Submitted at Institute of Public The trial of an ex-child International Law, Air Law and International Relations soldier – Supervisor Assoz. Univ.-Prof. Dr. Birgit Haslinger, LL.M. A closer look at the November 2018 case of Dominic Ongwen Diploma Thesis to obtain the academic degree of Magistra der Rechtswissenschaften in the Diploma Program Rechtswissenschaften JOHANNES KEPLER UNIVERSITY LINZ Altenberger Str. 69 4040 Linz, Austria www.jku.at DVR 0093696 STATUTORY DECLARATION I hereby declare that the thesis submitted is my own unaided work, that I have not used other than the sources indicated, and that all direct and indirect sources are acknowledged as references. This printed thesis is identical with the electronic version submitted. Munderfing, 1 November 2018 Signature November 1. 2018 Constanze Vogel 2/50 Table of Contents 1. Introduction ........................................................................................................................... 5 2. Background .......................................................................................................................... 6 2.1. Situation in Uganda ....................................................................................................... 6 2.2. Dominic Ongwen’s Biography ........................................................................................ 8 2.3. Reasons for this case’s importance ............................................................................. 10 3. Committed crimes ............................................................................................................... 13 3.1. Crimes against humanity ............................................................................................. 13 3.1.1. General requirements for crimes against humanity ........................................... 14 3.1.2. Murder and attempted murder .......................................................................... 16 3.1.3. Torture .............................................................................................................. 17 3.1.4. Sexual slavery .................................................................................................. 17 3.1.5. Rape ................................................................................................................. 18 3.1.6. Enslavement ..................................................................................................... 19 3.1.7. Forced marriage as an inhumane act ............................................................... 20 3.1.8. Forced pregnancy ............................................................................................. 21 3.1.9. Persecution ...................................................................................................... 21 3.1.10. Other inhumane acts ........................................................................................ 22 3.2. War crimes .................................................................................................................. 23 3.2.1. General requirements for war crimes ................................................................ 24 3.2.2. Attack against civilian population ...................................................................... 25 3.2.3. Murder and attempted murder .......................................................................... 26 3.2.4. Rape ................................................................................................................. 27 3.2.5. Sexual slavery .................................................................................................. 29 3.2.6. Forced pregnancy ............................................................................................. 30 3.2.7. Torture .............................................................................................................. 32 3.2.8. Cruel treatment ................................................................................................. 33 3.2.9. Outrages upon personal dignity ........................................................................ 33 3.2.10. Destruction of property ..................................................................................... 35 3.2.11. Pillaging ............................................................................................................ 35 3.2.12. The conscription and use of child soldiers ........................................................ 36 3.3. Multiplicity of offences ................................................................................................. 38 4. Defense of duress under Article 31(1)(d) Rome Statute ...................................................... 39 4.1. Threat of death or of serious bodily harm .................................................................... 40 November 1. 2018 Constanze Vogel 3/50 4.2. Necessity and reasonable justification ......................................................................... 40 4.3. Proportionality ............................................................................................................. 42 4.4. Complete defense or mitigating factor ......................................................................... 43 5. Conclusion .......................................................................................................................... 45 6. References ......................................................................................................................... 47 November 1. 2018 Constanze Vogel 4/50 1. Introduction The Lord’s Resistance Army is one of the most brutal rebel groups in Africa and which is mainly active in northern Uganda. It is famous for abducting children in order to use them as child soldiers.1 One of the abductees has gained prominence – his name is Dominic Ongwen. He was abducted at the age of ten while walking home from school, and has then risen through the ranks of the Lord’s Resistance Army to become one of its’ senior commanders. Over the years, he has committed multiple war crimes and crimes against humanity, and is now standing trial before the International Criminal Court.2 His offences range from murder, slavery, rape and destruction of property amongst other crimes.3 Not only did he commit these crimes, but he also is a victim of some of them, like the use of children under the age of 15 as child soldiers.4 Dominic Ongwen is the first former child soldier to stand trial before the International Criminal Court.5 His special situation gives rise to criticism, especially because he was forced into a position where he was forced to commit atrocities due to the childhood indoctrination by the rebel group affecting his decisions as well as his own victim status.6 This thesis asks the question whether some of his crimes can be justified with duress. In order to answer this question, some background information on the situation in Uganda and the rise of the Lord’s Resistance Army will be given in the first part of this paper. Also, the life story of Dominic Ongwen will be outlined to explain how he became a defendant before the International Criminal Court. The second part comprises the reasons why he is standing trial and his charges will be explained. The indoctrination Dominic Ongwen went through as a child and the circumstances he grew up in, constituted an ongoing threat to his life and his family.7 However, whether the requirements for duress are fulfilled in his case, is discussed in the third part of this thesis. 1 See Institute for National Strategic Studies, La Sage A., “Countering the Lord’s Resistance Army in Central Africa” (07.2011), SF No. 270, <http://ndupress.ndu.edu/Portals/68/Documents/stratforum/SF-270.pdf> (18.10.2018). 2 See The Globe and Mail, Stephanie Nolen and Erin Baines, “The making of a monster” (25.10.2008) <http://www.theglobeandmail.com/news/world/the-making-of-a-monster/article20389116/> (18.10.2018). 3 The Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15 (28.10.2015) (case information sheet), <https://www.icc-cpi.int/uganda/Ongwen/Documents/OngwenEng.pdf> (18.10.2018). 4 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008) <http://justiceandreconciliation.com/wp-content/uploads/2008/07/JRP_FN7_Dominic- Ongwen.pdf> (18.10.2018) p. 1. 5 See North Carolina Journal of International Law, Heggum S. L., “ICC launches first-ever prosecution of former child soldier” (17.11.2015) <http://blogs.law.unc.edu/ncilj/2015/11/17/icc-launches-firstever-prosecution-of-former-child- soldier/> (18.10.2018). 6 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008) <http://justiceandreconciliation.com/wp-content/uploads/2008/07/JRP_FN7_Dominic- Ongwen.pdf> (18.10.2018) pp 17, 18. 7 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008) <http://justiceandreconciliation.com/wp-content/uploads/2008/07/JRP_FN7_Dominic- Ongwen.pdf> (18.10.2018) p. 7, 8. November 1. 2018 Constanze Vogel 5/50 2. Background 2.1. Situation in Uganda In order to understand how the Lord’s Resistance Army (LRA) came into existence and how it has risen to be one of the most brutal rebel organizations, it is necessary to have some knowledge of Uganda’s history and people. In fact, there is a conflict between the Acholi people, who
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