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
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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
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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
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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,
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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 live in the northern districts of Kitgum, Gulu and Pader and other ethnic groups from the southern parts of the country. During the British colonization, the people from the north were primarily recruited for the armed forces, while people from the south were employed for civil service. This created a rift within the country, which persisted even after Uganda’s independence in 1962. Consequently, the south was more educated and developed whereas the north was excluded from that progress, which has led to violent and brutal fights over the past years.8 After Uganda gained independence, President Milton Obote brought numerous Acholi into politics, who held government positions at national level in Uganda People’s Congress. He also expanded the security forces from 700 to 9,000 troops, which consisted of one third of Acholi people. In the 1970s, Idi Amin, who had led a coup against Obote, pointed out the preference towards the Acholi and began to eliminate their national power. He discharged the Acholi from the military; as a result most of the armed forces were then comprised of West Nile and Sudanese troops. Afterwards the Acholi were stripped of their political power and their civil service positions. Further, violent attacks in Acholi districts were ordered by Amin, which resulted in the loss of a significant number of humans’ lives.9 Obote gained power again in the early 1980s, but he could not reestablish the status of the Acholi within his administration, as it had been the case in his previous presidency. The Acholi were mainly present in the military and the Uganda National Liberation Army (UNLA). It was argued by some people from southern Uganda, that this northern military dictatorship had to end in order to achieve national equalization. This argument was used to support the National Resistance Army (NRA), which eventually consisted of 3,000 to 14,000 troops. The Acholi became the center of hatred because of their military presence.10 In July 1985, Acholi troops, under the leadership of Bazilio and Tito Okello, launched a coup against Obote. However, Okello could not establish a successful administration because they neither had sufficient support from the population nor skill nor the necessary skills and resources to do so. Yoweri Museveni as the new president and the NRA took over, while the Acholi troops fled to the north. They were not only excluded from government, but also declared the ethnic enemy. Hence the north of Uganda was occupied by the NRA, which brought significant violence to the people there.11 Due to these developments, a female Acholi medium, called Lakwena, gained power in the north. She claimed she would resolve the crises as leader in this part of the country. Her movement was popular, which eventually led to Lakwena being in charge of over 7,000 to 10,000 troops. Still, this rebel group ultimately was defeated by the military and Lakwena left. After that Joseph Kony, who is a relative of Lakwena, emerged and for lack of willing support and volunteers, he used violence
8 See Human Rights Watch/Africa, “The Scars of Death – children abducted by the Lord’s Resistance Army” (09.1997)
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against the civilian population to establish his own rebel movement. Some of the remaining soldiers from Lakwena’s movement joined Kony and with the government being neither able nor willing to protect the people, the Lord’s Resistance Army came into existence in the late 1980s.12 Their aim has since then been to overthrow the government and to “cleanse” the Acholi people.13 The decision about who is impure and requires cleansing has solely been made by the LRA. In Kony’s opinion the violence against the Acholi is justified, because the local state represents the central state and is therefore the internal enemy.14 The rebel group mainly aimed to recruit Ugandan civilians, especially children, to train them to fight for their causes. In 1991, Museveni launched a military campaign against the LRA, which eventually failed. At that time, the Sudanese government had been supporting the LRA to prompt retaliation for the Ugandan government, who had been assisting the Sudanese People’s Defence Army (SPLA), a rebellious troop fighting the Sudanese government. Due to this support, the LRA moved to southern Sudan, where they established bases for military training and received weapons from the government. After the terror attacks in the USA in 2001, the United States State Department declared the LRA a terrorist organization. This development encouraged the government of Sudan to cut ties with the rebel group. In 2002, the Sudanese government and the government of Uganda agreed to take action against the LRA, which gave permission to the Ugandan People’s Defence Force (UPDF) to enter Sudanese territory and take down the rebel group. This operation was called Iron Fist and was declared a failure in July 2002. The LRA moved back to Uganda, where many people were forced into displaced person’s camps by the government, as an attempt to keep them safe from the rebels, while the military operations went on. Nevertheless, these camps also fell under attack of rebel forces.15 In addition to this constant threat, there were other severe problems like poverty and high death rates in the camps.16 Until 2002 it was estimated that the LRA had abducted over 10,00017 children. The boys were used as fighters and the girls were used as sex slaves. Many of them died during the long marches to the camps, due to diseases or brutal treatment.18 Furthermore, humanitarian workers, who helped internally displaced persons in northern Uganda and Sudanese refugees in Uganda, were targeted.19 The methods used by the LRA to mentally break the children are extremely brutal. Escapees report that they had to beat fellow abductees or kill other children who tried to escape and then smear their blood on their bodies. In addition, they were subjected to beatings if they did not comply with the orders they were given. The underage soldiers had to participate in battles with government forces even though they were unarmed, and they were not allowed to hesitate.20
12 See Branch A. “Exploring the roots of LRA violence: political crises and ethnic politics in Acholiland” in Allen T., Vlassenroot K. (eds.) The Lord’s Resistance Army myth and reality (Zed books, 2010) pp. 25 – 45 (36 – 39). 13 See Human Rights Watch/Africa, “The Scars of Death – children abducted by the Lord’s Resistance Army” (09.1997)
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As retaliation against civilians who fought the LRA in militias, the rebel group attacked Barlonyo and hacked to death and burned alive over 300 people in February 2004. Moreover, unborn children were cut out of their mothers’ bellies and burned afterwards. A significant number of people were abducted and some of them died on the way to the LRA camps.21 As an attempt to protect the children, they were sent to the town centers in Kitgum, Pader and Gulu to stay there overnight and return home each morning. This procedure is named night commuting and in 2005, it was believed that about 40,000 children took part in this phenomenon every night.22 Although peace talks were held between the government of Uganda and the LRA’s leadership in the time between 2006 and 2008, Joseph Kony refused to sign the agreement because he wanted amnesty from prosecution for himself and the other leaders.23 In 2005 arrest warrants were issued for Joseph Kony, Vincent Otti, Dominic Ongwen and two other LRA commanders by the International Criminal Court (ICC). Three of these five proceedings were terminated due to the death of the individuals. Dominic Ongwen is standing trial, as will be explained in the following chapter. Joseph Kony still remains at large.24 Vincent Otti was executed by Kony’s order after the peace talks due to loss of trust.25
2.2. Dominic Ongwen’s Biography
Dominic Ongwen was born in 1980 in the Amuru District in northern Uganda.26 He is one of eight children, his parents were schoolteachers. At the age of ten he was abducted by LRA rebels while walking home from school. He told the rebels that his name was Dominic Ongwen (even though his real name was Dominic Okumu Savio)27 because he was taught by his parents – as many other children – to state a false name if an abduction should occur. Children were taught to do this as a protection method for the families and villages where the abductees were from. The LRA is known to brutally retaliate against runaways as well as their families and clans. Ongwen had to live in the home of a senior commander, who was indoctrinating him with the rules of the rebels. His lapwony28 was Vincent Otti who later was Kony’s second-in-command.29 In 1995 Otti planned and ordered the massacre in the village of Atiak, where between 200 and 300 people were killed and children were abducted as new recruits. Ongwen was probably a witness and participant in this atrocity.30
21 See Justice and Reconciliation Project, “Kill every living thing – The Barlonyo Massacre”, Field Note No. 9 (02.2009)
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Like the other abducted children, Dominic Ongwen was taught to forget about his past life and about his family. These children learned not to show any emotions. As part of their training they took part in drills in the jungle, were taught how to steal goods and how to use guns. Ongwen was very skilled and so he was put in charge of small stealing operations and commanded younger children soon. As a teenager he participated in military trainings. He also showed the same cruelty on his missions as his mentors Otti and Kony. At the age of 18 he was promoted to the rank “major” and was given the first of his five wives.31 Ongwen rapidly climbed up to high commanding positions. The reasons for that were not only that he was good at killing people nor that he was very loyal to the LRA and Kony, but because he outlived most of the other commanders. Promotion meant better access to food, being rewarded with “wives” and ting ting32 and also close protection in form of spies and guards. To get promoted a high amount of people needs to be killed, children need to be abducted and goods need to be stolen, which means promotion is a reward for cruel actions.33 On 8 July 2005 the International Criminal Court issued an arrest warrant for Dominic Ongwen. His charges include multiple war crimes and crimes against humanity, which will be elaborated on later.34 After that Ongwen was thinking about returning from the bush. He ordered troops to take about 30 people to him for questioning outside Gulu. He asked them about what would happen if he returned. Ongwen was afraid of being judged by a foreign court. He also requested news about his family and parents. Afterwards the civilians were let go.35 Some of his wives escaped, some he allowed to leave. One of them reported that he had contacted her regularly and had supported her. She also arranged a meeting for him to negotiate his return from the bush, but he suddenly changed his mind and beat her. She did not see him again after that. In 2007, Ongwen crossed the border into Congo and reunited with Kony.36 The relationship between Kony and Ongwen decreased after the peace talks had failed and Otti’s subsequent execution. Ongwen acted with his troops separately from Kony and therefore the leader became suspicious of his commander. In 2014, Kony captured and tortured Ongwen, however he managed to escape.37 It is unclear whether Dominic Ongwen surrendered himself to the US troops in the Central African Republic or if he got captured by a Seleka38 group which handed him over to the US Special Forces. Both sides gave different statements on the event.39
31 See The Globe and Mail, Nolen S. and Baines E., “The making of a monster” (25.10.2008)
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Since 21 January 2015 Dominic Ongwen has been a detainee in the ICC Detention Centre in The Hague, where he was transferred to after his capture/surrender.40
2.3. Reasons for this case’s importance
In this case the International Criminal Court faces multiple issues. The first complication is the victim-perpetrator situation. Dominic Ongwen is standing trial for crimes he not only committed, but he also has been a victim of.41 Over the years, he has abducted many children for the LRA and has trained them for ultimately fighting for him as soldiers. On the other hand he only turned into a convict, because he had been abducted as a child by the rebel group and had been forced to do so. Victims are usually perceived as innocent and perpetrators as evil. However, in situations of civil war, like the one Ongwen grew up in, it is not so easy to distinguish between the two. The reason for this is that people have to deal with difficult and often dangerous situations to survive on a regular basis. Consequently, the circumstances Dominic Ongwen grew up in and the long time he has been indoctrinated by the rebels, play a huge role in how he acted and why he committed these crimes in the first place.42 According to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (UN 2002), the age limit for children to participate actively in hostilities is 18.43 Under that age, children are considered innocent victims. The state parties to that protocol have the obligation to provide adequate protection for these children.44 Furthermore, the Rome Statute of the International Criminal Court (herein-after Rome Statute or ICC Statute) stipulates in Article 8(b)(xxvi) and 8(e)(vii) that the forced recruitment of children under the age of 15 states a war crime.45 In reality, Uganda was and is not capable of protecting children adequately against rebels and abductions.46 However, abducted children like Dominic Ongwen live in an environment where killing and recruiting/abducting others are not only part of their everyday life, but it is also rewarded.47 Another issue is the fact that the same act committed before the 18th birthday is not punishable, but after that day arises it is. Article 26 of the Rome Statute states that the court has no jurisdiction over crimes committed under the age of 18.48 This constitutes an age gap between 15 and 18 in the Rome Statute, which makes people of that age and their crimes invisible to the ICC.49
40 See The Prosecutor v. Dominic Ongwen, ICC-02/04-01/15 (ICC case information sheet),
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Additionally, an interesting question in this case is the defense of duress. Article 31(d) of the ICC Statute identifies duress as a “threat of imminent death or of continuing or imminent bodily harm”.50 This plea, successfully raised, can exclude the criminal responsibility of the perpetrator. Until now, that has never been the case before the ICC. It was raised in the Erdemović case before the International Criminal Tribunal for the former Yugoslavia (ICTY), but the circumstances were different, for instance Dražen Erdemović willingly became a soldier. In court he claimed he had to kill unarmed civilians because he was threatened to be executed if he had not complied with the superior orders. His claim was not successful and he was sentenced to imprisonment, but duress constituted a mitigating factor in his verdict. In his dissenting opinion, Judge Cassese pointed out that in international law no specific rule exists whether duress is just a mitigating factor or a complete defense. He states that the absence of a specific rule of customary international law indicates that the general rule should apply, meaning complete defense. Further he emphasizes, that all requirements, especially proportionality, need to be met.51 As shown above, these different issues come together in this case. How the judges will decide will set a prejudice for many other abducted children in situations like Dominic Ongwen, who were forced into difficult violent positions.52 As a matter of fact, terminology should also be explained in more detail. Commonly, children like Dominic Ongwen are called child soldiers, whereas some international treaties do not use this term, like the Convention on the Rights of the Child (1989) or the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000). Furthermore, the Paris Principles, which followed the Cape Town Principles of 1997, just identify these people as children or boys and girls.53 The Paris Principles, which give guidance on how to tackle forced recruitment of children into armed forces and on how to reintegrate them into society, were adopted in 2007 and are complementary to the Paris Commitments. The signatory states are provided with best practices and are shown ways on how to implement the given guidelines by taking a children rights approach.54 The term used to describe these children has an effect on how they are seen within the community. Stigmatization does not help with reintegrating traumatized people. Therefore, Margaret Angucia points out that, when the children are called child soldiers in northern Uganda, it has a negative connotation and is used in connection with bad behavior of a person. The community itself, however, normally refers to them as formerly abducted children.55 Additionally to the stigma of being a child soldier, returned girls may face more difficulties with reintegration because of their status as the wife of a rebel commander and having children with him. Dominic Ongwen had multiple wives and children, who are facing exactly these problems.56 Living through the experience of war and violence on a daily basis changes the identity of a person from a child perceived as innocent within its community to a victim or even victim-perpetrator, who is associated with an armed group. Like in the case of Dominic Ongwen, who once was a young
50 See Article 31(d) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 51 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, paras. 11, 12. 52 See Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 (185). 53 See Angucia M. “Child soldiers or war affected children? Why the formerly abducted children of northern Uganda are not child soldiers”, Intervention 2014, Vol. 12, No. 3, pp. 356-366 (356, 357). 54 See The Paris Principles – The principles and guidelines on children associated with armed forces or armed groups February 2007 paras. 1.4 – 1.12. 55 See Angucia M. “Child soldiers or war affected children? Why the formerly abducted children of northern Uganda are not child soldiers”, Intervention 2014, Vol. 12, No. 3, pp. 356-366 (362, 363). 56 See Angucia M. “Broken citizenship: formerly abducted children and their social reintegration in northern Uganda”, Groningen 2010, p. 125.
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innocent boy and after being abducted and exposed to extreme brutality, unwillingly changed his identity to one of a killer, murderer and rapist associated with the LRA. With this change of identity also comes a change in the acceptable behavior. What these children are expected to do within an armed group is not acceptable within the community they once were taken from and the one they return to after fighting in a war.57 After their return it is necessary for them to start a new life and create positive relationships, socially and economically.58 This reintegration becomes more complicated when these people are labelled as child soldiers instead of war affected or formerly abducted children. These children committed crimes in the name of the rebel group primarily for their own survival.59 The bush-mentality of following orders under the constant threat to life is displayed in interviews with Ongwen’s former comrades within the LRA. One argued “Ongwen is like a dog sent to get meat. They made him fight against his own people so that he is not able to return home and live with the people he hurt. He just worked on order and became a leader because of his discipline in following orders. We are like dogs because as the dog grows it follows what it sees.”60 Another one said “Ongwen was just an executioner of commands, because he would do what he was commanded to do. His only problem is that he would look to eager to do it. He should not be prosecuted because in the bush if you are told to do something and you do not do it then you would be killed. That is why if you are told to kill 100, you would kill a thousand so that you leave no doubt about your loyalty and so that you could be thanked.”61 The complexity of the victim-perpetrator-situation needs to be acknowledged to recognize the unique position people like Dominic Ongwen find themselves in. Without absolving him of his crimes, it is necessary to realize his status in order to not exclude him and others like him further from society and help them to get back to a life within their communities instead of fighting them.62
57 See Angucia M. “Broken citizenship: formerly abducted children and their social reintegration in northern Uganda”, Groningen 2010, pp. 37, 38. 58 See Angucia M. “Broken citizenship: formerly abducted children and their social reintegration in northern Uganda”, Groningen 2010, p. 43. 59 See Angucia M. “Child soldiers or war affected children? Why the formerly abducted children of northern Uganda are not child soldiers”, Intervention 2014, Vol. 12, No. 3, pp. 356-366 (358 - 360). 60 See Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 (178). 61 See Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 (178). 62 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008)
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3. Committed crimes
Dominic Ongwen is charged with multiple counts of crimes against humanity and war crimes. In this chapter these charges shall be examined in more detail after an introduction. It is not uncommon for war crimes and crimes against humanity to overlap, although there are some distinctions. First, whereas war crimes are committed during an armed conflict, crimes against humanity can be carried out during war and in peacetime. Second, a single isolated offence can amount to a war crime unlike a crime against humanity, which needs to be part of a widespread or systematic attack. The third difference is the protected object or person of the crime. Crimes against humanity aim at protecting every civilian with no regard to his or her affiliation or nationality, while the focus on protection from war crimes lies on the people associated with the opposing party to the conflict. The fourth distinction is the object the offence is directed against. Whereas crimes against humanity regulate actions taken against civilian populations as the primary target, war crimes concern offences directed against military objectives and activities on the battlefield.63 This overlap can lead to charges for war crimes and crimes against humanity for the same conduct. How the ICC deals with these concurrent charges will be explained at the end of this chapter.
3.1. Crimes against humanity
Crimes against humanity target the civilian population in a widespread or systematic attack.64 This context concerns the international community as a whole and therefore constitutes international jurisdiction. In contrast the crime of murder or rape committed individually without being part of such a widespread or systematic attack falls under national jurisdiction.65 Crimes against humanity have been defined in multiple ways in the statutes of the different international tribunals. The ICC Statute’s definition was agreed upon by the majority of states and displays the basic structure and substance of these crimes.66 Even though the ICC Statute rejects the notion to codify customary international law, it represents the consensus of the majority of the world’s states and therefore carries significant importance. It also provides guidance for states that enact national legislation.67 The first definition is found in the Nuremberg Charter, where Article 6(c) states that crimes against humanity are “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of the country where perpetrated”68. It was drafted after World War II in order to punish the Nazis for the atrocities they committed. However, their crimes could not be punished as war crimes, because of the commission against their own
63 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (232). 64 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (328). 65 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (229). 66 See deGzuman M. M., Crimes against humanity in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 62 – 84 (62 – 64). 67 See deGuzman M. M., Crimes against humanity in Schabas W.A. and Bernaz N., Routledge Handbook of International Criminal Law (Routledge, 2011), pp. 121 – 139 (127). 68 See Article 6(c) United Nations, Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”), 08.08.1945.
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population. For this reason, the wording “any civilian population”69 was included in the definition. A precise scale of the number of victims however was never determined. The definitions in the ICTY Statute and the Statute of the International Tribunal for Rwanda (ICTR) were similar but the former included the requirement of an armed conflict, whereas the latter required discriminatory grounds. The ICC Statute enshrines the listed acts from the previous tribunals and adds some more, while dropping the armed conflict nexus and the general requirement of discriminatory grounds.70 The crimes listed in Article 7(1) ICC Statute include “murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution, enforced disappearance of persons, the crime of apartheid and other inhumane acts”.71 In the following chapters the focus will lie on the general requirements and the crimes that Dominic Ongwen is charged with.
3.1.1. General requirements for crimes against humanity As already mentioned above, no nexus to an armed conflict is required in contrast to war crimes.72 Typically there is no need of a discriminatory element of a crime; however, the crime of persecution demands to be carried out with a discriminatory animus.73 Crimes against humanity require that the acts listed in Article 7 of the Rome Statute are committed “as part of a widespread or systematic attack directed against any civilian population”74.75 Given that this sort of crime can occur not only during war, but also during peacetime, civilians are protected regardless of their affiliation. The nationality of the victim and the perpetrator is irrelevant and also which side of the conflict the victim belongs to (the perpetrator’s side or the opposing one). Accordingly, a civilian is any person who does not or no longer takes part in the conflict at the time of the perpetration.76 The civilian population needs to be the primary target, but it does not have to be the entirety of a geographic area. It is sufficient if there are a relevant number of victims who have some sort of connection.77 The majority of the population needs to be civilian. Nevertheless, the presence of some combatants does not change the civilian character.78 The wording “part of a widespread or systematic attack” does not mean that the offence must be committed in the course of an attack. It is sufficient if there is a connection of some manner even when committed in some geographical or temporal distance. By asserting whether an act was indeed part of such an attack, judges have to take the specific circumstances into consideration.79
69 See Article 7(1) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 70 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (231). 71 See Article 7(1)(a)-(k) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 72 See deGzuman M. M., Crimes against humanity in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 62 – 84 (69). 73 See Gaeta P., “War crimes and other international ‘core’ crimes” in Clapham A., Gaeta P. (eds) The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) pp 737 – 766 (753). 74 See Article 7(1) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 75 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (331). 76 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (334). 77 See deGzuman M. M., Crimes against humanity in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 62 – 84 (73). 78 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (240). 79 See deGzuman M. M., Crimes against humanity in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 62 – 84 (74, 75).
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An attack does not have to amount to a military attack, nor does force have to be used. This conception covers any maltreatment of civilians.80 Article 7(2)(a) of the ICC Statute describes an attack as a “course of conduct involving the multiple commission of acts referred to in paragraph 1”.81 Multiple commission means that either the same act is committed numerous times or different offences are committed. However, it is not necessary that the offender acts repeatedly him- or herself.82 The perpetrator is criminally liable for just one inhumane act as a crime against humanity if it can be proven that this single offence was part of a broader attack.83 Widespread and systematic are two criteria describing the quantity and the quality of the attack.84 The first one refers to the number of victims, while the geographic extent may be taken into consideration as well.85 However, even one single offence can also satisfy the requirement, if it results in a substantial number of victims.86 Systematic is described as “the organized nature of the acts of violence and the improbability of their random occurrence”.87 This means that behind the individual act stands a plan or policy. The two criteria of widespread and systematic are alternatives, but usually both are satisfied in practice.88 Also, a policy element is required by Article 7(2)(a) of the Rome Statute for widespread and systematic attacks (“…pursuant to or in furtherance of a State or organizational policy…”89).90 The reason for this element is the exclusion of random and isolated acts committed by uncoordinated perpetrators.91 A policy does not need to be stated clearly nor expressly declared nor actively promoted – it suffices to simply tolerate it. The purpose of this provision and the decision of international criminal courts suggest that tolerance is enough to meet the requirements of this crime.92 An organization is defined as “an organized body of people with a particular purpose”.93 As a subjective element, it is necessary that the perpetrator is aware that his or her action is part of an attack against a civilian population.94 Otherwise it is not required that the accused has knowledge of the policy behind the attack nor that he or she operates on discriminatory grounds, except for the crime of persecution.95 In the case discussed, there was an attack against the civilian population of northern Uganda from July 2002 to December 2005 committed by the LRA. This attack was widespread as it was carried out over a large geographical area and over a substantial period of time. Furthermore, the attack included a considerable number of violent acts and a significant number of victims. Also, the systematic element is fulfilled because the violence followed a plan and a perceptible pattern. The
80 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (337). 81 See Article 7(2)(a) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 82 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (337). 83 See Robinson D., Defining “Crimes against Humanity” at the Rome Conference (January 1999), American Journal of International Law, Vol. 93(1), pp. 43 – 57 (48). 84 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (339). 85 See deGzuman M. M., Crimes against humanity in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 62 – 84 (71). 86 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (339). 87 See ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 429. 88 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (339). 89 See Article 7(2)(a) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 90 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (339). 91 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (238). 92 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (344, 345). 93 See ICC Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, 21.03.2016, ICC-01/05-01/08, Judgement, para. 158. 94 See deGzuman M. M., Crimes against humanity in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 62 – 84 (75). 95 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (345).
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evidence presented during the pre-trial was sufficient enough to establish that Dominic Ongwen’s crimes share the requirements “in terms of their characteristics, nature, aims, targets and alleged perpetrators, as well as times and locations, with the other acts forming the basis of the LRA attack directed against the civilian population in northern Uganda”.96 Therefore the contextual elements of crimes against humanity were confirmed.97
3.1.2. Murder and attempted murder Murder as a crime against humanity is criminalized in Article 7(1)(a) of the Rome Statute and means intentionally causing the death of another person. The offender does not necessarily have to have the intention to kill the other person. The definition is satisfied if grievous bodily harm was inflicted on a human being while the perpetrator was aware that death would likely be a result. Additionally, the contextual elements, as previously discussed, are required.98 The differentiating prerequisite to the crime of extermination, regulated in Article 7(1)(b) of the Rome Statute99, is that murder does not have to be part of a mass killing.100 It is not required that the prosecution shows the corpse of the victim to prove his or her death, merely circumstantial evidence suffices, if death is the only reasonable conclusion.101 The perpetrator must act intentionally, meaning that he or she “acted deliberately or failed to act (1) in order to cause the death of one or more persons or (2) whereas he or she was aware that death would occur in the ordinary course of events.”102 In regards to the discussed case of Dominic Ongwen, the prosecution pointed out that the murders committed during the attack on Pajule not only constitute war crimes, but also crimes against humanity. Witnesses stated that at least two civilians were killed during this particular attack.103 In Odek, at minimum 61 people were murdered; also some were killed after being abducted from that camp. Some victims were able to survive their gunshot wounds.104 The attack on Lukodi resulted in roughly 45 deaths, including not less than 12 children. After the attack abductees were also killed along the way. Even though children were thrown into burning houses and kicked when they tried to flee, some were still able to survive.105 In Abok approximately 28 residents of the camp died, including children. People were shot, burned and beaten to death, although some did not die but were left for dead.106 The mentioned deaths of the civilian inhabitants of the attacked
96 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 63. 97 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 64. 98 See deGzuman M. M., Crimes against humanity in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 62 – 84 (76). 99 See Article 7(1)(b) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 100 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (245). 101 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgment, para. 768. 102 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgment, para. 781. 103 See ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen - ICC-02/04- 01/15 (21.01.2016)
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camps were caused by LRA fighters acting under the orders of Dominic Ongwen. Attacking these camps was a deliberate action in order to kill these people.
3.1.3. Torture Torture as a crime against humanity is regulated in Article 7(1)(f) of the Rome Statute.107 Article 7(2)(e) of the ICC Statute defines it as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions”.108 In contrast to torture as a war crime, the infliction of pain or suffering does not need to serve a purpose, to constitute a crime against humanity.109 Instead, it is required that the victim is “in custody or under the control of the perpetrator”.110 Regarding the degree of severity of infliction of pain or suffering, the appeals chamber in the Naletilić and Martinović case stated that whether such infliction occurred and is severe enough to satisfy the definition of torture, must be analyzed case-by-case taking into account the acts committed and the context thereof.111 In regards to Dominic Ongwen’s case, it can be said that the same acts he committed that constitute torture as a war crime, also meet the requirements of torture as a crime against humanity because of the contextual elements.112 During the attack on Odek in April 2004 civilian residents were threatened with death and beaten if they did not comply with the orders of the LRA.113 During the attacks on Pajule, Lukodi and Abok some inhabitants were threatened with violence, tied up and forced to carry wounded LRA fighters and pillaged items,114 each of these acts displays the infliction of severe pain or suffering. The victims of this crime were abducted after the attacks on the camps which means they were under the control of the LRA and specifically Dominic Ongwen.
3.1.4. Sexual slavery Sexual slavery is criminalized in Article 7(1)(g) second alternative.115 Because of the specific element of violating the victim’s sexual autonomy, it is regulated in its own norm.116 The definition and footnotes in the ICC Elements of Crimes117 of sexual slavery and enslavement as crimes against humanity are identical.118 Slavery is defined as “the exercise of any or all of the powers attaching to the right of ownership over a person”.119 In addition to the definition of slavery, this
107 See Article 7(1)(f) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 108 See International Criminal Court, Elements of Crimes (2013), Article 7(2)(e). 109 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (250). 110 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(f). 111 See ICTY Appeals Chamber, Prosecutor v. Mladen Naletilić and Vinko Martinović, 03.05.2006, IT-98-34-A, Judgement, para. 299. 112 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 32, 69, 74, 79, 84. 113 See ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen, 21.01.2016, ICC-02/04-01/15
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crime requires the perpetrator to force the victim to engage in sexual acts.120 Regarding the subjective element, the accused has to exercise these ownership rights intentionally.121 The trial chamber in the Kunarac case pointed out, that the duration of the captivity may be given consideration to, but it does not constitute an element of this crime. Its importance depends on other indicators, when determining if the crime of enslavement was committed.122 It was also stressed that even though physical barriers may be absent, it is not necessary that the perpetrator restrains or detains the victim. The victim’s fear of his or her captor may constitute such a psychological barrier, that he or she is unable to escape. Furthermore, the risk of being recaptured and the awareness thereof may make the victim unable to leave.123 Several women testified before the ICC that Dominic Ongwen committed this crime. P-99124 was forced to have sex with Ongwen and was unable to leave because of military guards watching her. She had to perform forced labor and her status was reduced to a servile one.125 P-101 was forced to have sex with Dominic Ongwen multiple times and was subjected to beatings if she refused. She had to perform household duties and was unable to escape until July 2004.126 P-214 was under Dominic Ongwen’s control for at least 3 years. During that time, she was subjected to multiple rapes, was guarded to prevent her escape, performed domestic duties and nursed Ongwen when he was injured.127 Similar statements were given by P-226 and P-227.128 Being placed under guard is a display of captivity. Furthermore, being forced to perform household duties in addition to being guarded indicates the exercise of ownership over a person. The coercion to have sex with Ongwen or getting beaten if refused, shows the force used to get the victim to engage in sexual activities. There is no sign that he acted unintentionally.
3.1.5. Rape Rape as a crime against humanity is regulated in Article 7(1)(g) first alternative of the Rome Statute.129 The material elements are the same as in rape as a war crime. It is defined as the invasion of a person’s body by the perpetrator, resulting in penetration.130 Similar to the war crime provision, the formulation is intended to be gender-neutral. Furthermore, any penetration by the perpetrator’s sexual organ or by other objects into the victim’s body, regardless if it is oral, vaginal or anal, is covered under this crime.131 The ICC Elements of Crimes also require the accused to have acted with force or threat of force or coercion.132 According to the judges in the Kunarac
120 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(g)-2 2. 121 See ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 540. 122 See ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 542. 123 See Askin K. D., Crimes against women under international criminal law in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 84 – 114 (106, 107). 124 P-(number) refers to witnesses before the ICC. 125 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 90 para. 70. 126 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 111. 127 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 92 para. 86. 128 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 116, 118. 129 See Article 7(1)(g)-1 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 130 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(g)-1 1. 131 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (367). 132 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(g)-1 2.
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case, the absence of consent is relevant as well.133 Consent has to be given voluntarily and freely, which is assessed in the light of the circumstances at that time. Whenever the surrounding circumstances are fundamentally coercive, it can be assumed that there is no possibility for giving genuine consent.134 The perpetrator needs to be aware of the non-consent.135 This may be proven by showing “that the accused was aware, or had reason to be aware, of the coercive circumstances that undermined the possibility of genuine consent”.136 Dominic Ongwen raped numerous women himself, and when the women refused they were threatened and brutally beaten.137 Also, he indirectly committed this crime, by distributing women and girls to other fighters to be raped by them as part of carrying out the LRA’s common plan.138 The penetrations of P-99’s, P-101’s, P-214’s or P-226’s vagina or P-227’s anus with Dominic Ongwen’s penis,139 fulfill the requirement of invading someone’s body. These penetrations happened with a sexual organ and were vaginal as well as anal, which are both covered under this provision.
3.1.6. Enslavement According to Article 7(1)(c) of the Rome Statute, enslavement is a crime against humanity.140 It is defined as “the exercise of any or all of the powers attaching to the right of ownership over a person”.141 The ICC Elements of Crimes list as examples for such conduct “purchasing, selling, lending or bartering”142, including trafficking of persons, especially women and children.143 The definition of slavery within the ICC Statute is broader than the traditional ones.144 Depriving the victim of his or her freedom of movement and the perpetrator being in control of it, the perpetrator having economic control over the victim or exploiting him or her can be named as indicators. Furthermore, acting against the consent or the free will of the victim, threatening or using force against the victim, keeping the victim in detention or captivity, forced labor without remuneration can be evidence of enslavement. However, “‘acquisition’ or ‘disposal’ of someone for monetary or other compensation” is not part of the definition.145 In addition to the already described victims of sexual slavery of Dominic Ongwen, who also satisfy the requirements of the crime of enslavement, P-235 had to perform different duties in his household like “cooking, fetching water, washing things and collecting wood”.146 Also P-236 had
133 See ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 440. 134 See Boas G., Bischoff J. and Reid N., Elements of Crimes under International Criminal Law, International Criminal Law Practitioner Library Series Volume 2 (Cambridge University Press, 2008), pp. 14 – 137 (87). 135 See ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 460. 136 See ICTR Appeals Chamber, Sylvestre Gacumbitsi v. Prosecutor, 07.07.2006, ICTR-2001-64-A, Judgement, para. 157. 137 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, pp. 90 – 95 paras. 69, 76, 85, 94. 138 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 99 paras. 119, 122. 139 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, pp. 90 – 95 paras. 69, 76, 85, 94. 140 See Article 7(1)(c) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 141 See Article 7(2)(c) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 142 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(c) 1. 143 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(c) Footnote 11. 144 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (353). 145 See ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 542. 146 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 121.
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to carry out similar tasks for him; she was also forced to watch executions and was regularly beaten.147 Being forced to perform household duties and having restrictions on movement display forced labor and captivity which are indicators of slavery.
3.1.7. Forced marriage as an inhumane act Forced marriage is not regulated as an independent crime in the ICC Statute; it rather falls under other inhumane acts.148 There are similarities to sexual slavery, but the prosecutor in the AFRC case pointed out that this “crime consists of words or other conduct intended to confer a status of marriage by force or threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against the victim, or by taking advantage of a coercive environment, with the intention of conferring the status of marriage.”149 While both crimes include engaging in sexual activities, sexual slavery does not include that the victim upholds an appearance of a marriage and acts as the perpetrator’s wife. Furthermore, the forced wife has to perform all tasks, which are connected to a marriage.150 Another distinguishing element between forced marriage and sexual slavery is the exclusivity of the “relationship” between “husband” and “wife”.151 The appeals Chamber in the AFRC case defined forced marriage as “the situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, or threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim”.152 The ICC was confronted with the defense’s argument that forced marriage is not an individual crime but subsumed under sexual slavery. It stated the same opinion as was given in the AFRC case, meaning the distinguishing element of exclusivity. While being restricted in her movement, and being repeatedly subjected to rape, the victim has to perform household duties. Also, a forced pregnancy may be a result of such an arrangement.153 According to the pre-trial chamber, the crucial element is forcing the victim into a “marriage” – notwithstanding the victim’s wish – coercing the “wife” to carry out duties that are attached to marriage and burden the victim with the social status and consequently the stigma of being the “wife” of the accused. This crime is not mainly a sexual one, because of the possible disciplinary repercussions if there was a breach of the exclusivity of this arrangement. 154 The charges against Dominic Ongwen of using forcibly impregnated women, who he kept in confinement as forced wives were confirmed by the ICC Pre-Trial Chamber.155 Dominic Ongwen
147 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 97 para. 116. 148 See Gekker E. “Rape, Sexual Slavery, and Forced Marriage at the International Criminal Court: How Katanga utilizes a Ten-Year_Old rule but overlooks new Jurisprudence” (2014), 25 Hastings Women’s Law Journal, pp. 105 – 134 (127). 149 See Special Court for Sierra Leone, Trial Chamber II, Prosecutor Against Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (AFRC case), 20.06.2007, SCSL-2004-16-T, Judgement, para. 701. 150 See Special Court for Sierra Leone, Trial Chamber II, Prosecutor Against Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (AFRC case), 20.06.2007, SCSL-2004-16-T, Judgement, para. 701. 151 See Special Court for Sierra Leone, Appeals Chamber, Prosecutor Against Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (AFRC case), 22.02.2008, SCSL-2004-16-A, Judgement, para. 195. 152 See Special Court for Sierra Leone, Appeals Chamber, Prosecutor Against Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (AFRC case), 22.02.2008, SCSL-2004-16-A, Judgement, para. 196. 153 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 88 – 92. 154 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 93. 155 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 101.
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himself had 5 forced wives, who were coerced to become his exclusive sexual partners and to perform household duties for him some time after their abduction by the LRA.156 Indirectly he committed this crime by giving women and girls to other fighters to be forced by them to become their wives.157 While it is already established that the requirements of sexual slavery are fulfilled, the special element of this provision is the exclusivity of the arrangement. Ongwen’s wives were forced to maintain an exclusive sexual relationship with him,158 which satisfies this prerequisite.
3.1.8. Forced pregnancy Forced pregnancy is not only a war crime159, but also regulated as a crime against humanity in Article 7(1)(g) fourth alternative of the ICC Statute.160 Article 7(2)(f) of the ICC Statute defines it as “the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting population or carrying out other grave violations of international law”.161 The differences to forced pregnancy as a war crime are the contextual elements of the crime.162 During the Pre-Trial phase the charges against Dominic Ongwen of committing the crime of forced pregnancy as a crime against humanity were confirmed.163 P-101 was held confined during two pregnancies by Dominic Ongwen. Both times she conceived were the result of being raped by him.164 P-214 was guarded by Ongwen’s escorts during her pregnancy, so she was unable to escape. Her pregnancy was also the result of rape.165 The women were impregnated through rape, which satisfies the forcibly made pregnant requirement. During their pregnancies they were placed under guard which establishes confinement. Ongwen intended to carry out grave violations of international law, as he used these women as forced wives, raped them, (sexually) enslaved them and subjected them to torture166.
3.1.9. Persecution According to Article 7(1)(h) of the ICC Statute persecution constitutes a crime against humanity, committed against “any identifiable group or collectivity.167 This provision entails the punishment of massive violations of human rights committed on discriminatory grounds.168 The Rome Statute defines persecution in Article 7(2)(g) as the “intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”.169 The list
156 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 90 – 95 paras. 69, 75, 84, 93, 102, p. 97. 157 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 99 para. 120. 158 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 109 - 114. 159 See Article 8(2)(e)(vi)-3 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 160 See Article 7(1)(g) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 161 See Article 7(2)(f) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 162 See Klamberg M., Commentary on the law of the International Criminal Court (Torkel Opsahl Academic EPublisher, 2017), p. 101. 163 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 101. 164 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 111. 165 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 114. 166 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, pp. 91 (para. 79), 93 (para. 88). 167 See Article 7(1)(h) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 168 See Klamberg M., Commentary on the law of the International Criminal Court (Torkel Opsahl Academic EPublisher, 2017), p. 55. 169 See Article 7(2)(g) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544.
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of discriminatory grounds contains political, racial, national, ethnic, cultural, religious, gender and “other grounds that are universally recognized as impermissible under international law”.170 However, the ICC Statute requires this crime to be committed in connection with any other crime in Article 7 of the Statute or any other offence within the jurisdiction of the court, for example a war crime.171 This crime needs to reach a certain threshold, namely the “severe deprivation”172, which has to be acknowledged according to the circumstances.173 While isolated acts may not reach the threshold, the cumulative effect of such acts although may be indeed inhumane.174 The object of this crime can be a group or individuals representing a group. The term group has to be interpreted broadly. The victim may not even belong to this group, but the perpetrator defines the person as part of it because of close affiliations or sympathies towards it. The accused’s perception is decisive for the definition of who belongs to the targeted group.175 In regards to mental elements, the crime must be committed with intent, but additionally, it is required that the perpetrator intended to discriminate against a group for the grounds listed above.176 The requirement that the crime has to have a connection to other crimes is merely an objective element; a mental one is not demanded.177 Examples for persecution include murder, extermination, imprisonment, deportation, torture, enslavement and beatings, passing of discriminatory laws, burning of homes et cetera.178 This crime was committed by Dominic Ongwen when attacking the Internally Displaced Person’s Camps of Pajule, Odek, Abok and Lukodi. The residents were deprived of their fundamental rights to life, liberty and security of person, freedom of movement, and they were subjected to torture, cruel, inhumane or degrading treatment and were held in slavery. These people were targeted on political grounds because of their perceived status of being supportive of the government. The conduct was committed in connection to other crimes, as described in the other chapters.179
3.1.10. Other inhumane acts Since it is impossible to create an exhaustive list naming all acts expressly, the ICC Statute includes a general clause.180 Therefore Article 7(1)(k) of the ICC Statute criminalizes “other inhumane acts of a similar character causing great suffering, or serious injury to body or to mental or physical health”.181 Such a catch-all provision must be precise enough to be consistent with the principle of nullum crimen sine lege. Therefore, a threshold was included in the definition.182 First, it is required that the perpetrator’s act inflicts “great suffering, or serious injury to body or to mental
170 See Article 7(1)(h) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 171 See Article 7(1)(h) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 172 See Article 7(2)(g) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 173 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (374). 174 See ICTY Trial Chamber, Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Šantić, 14.01.2000, IT-95-16-T, Judgement, para. 622. 175 See ICTY Trial Chamber, Prosecutor v. Mladen Naletilić and Vinko Martinović, 31.03.2003, IT-98-34-T, Judgement, para. 636. 176 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (376). 177 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (257). 178 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd., Cambridge University Press 2014) pp. 229 – 264 (258). 179 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 75 – 88 paras. 25, 39, 52, 65. 180 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (384). 181 See Article 7(1)(k) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 182 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (261).
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or physical health”183 and secondly, that this act is of “similar character”184 to other prohibited acts in Article 7 of the ICC Statute185. “Character” has to be understood as reference to “nature and gravity of the act”.186 The degree of severity has to be assessed case-by-case.187 The perpetrator must have the intention to inflict suffering or serious harm. It is not necessary that he or she regards his or her act as inhumane; the accused merely needs to be “aware of the factual circumstances that established the character of the act”188.189 Examples for other inhumane acts are severe bodily harm, beatings, serious physical and mental injury, inhumane or degrading treatment if it does not reach the intensity of torture, forced nudity et cetera.190 Throughout the assault on the different Internally Displaces Person’s Camps numerous people were abducted. During the attack on Pajule one to four hundred residents were abducted and threatened to be killed.191 In Odek approximately 35 people were abducted and held in captivity for different periods of time.192 Being abducted and threatened inflicts great suffering upon the victim. It is also similar in character to the other prohibited acts under Article 7 of the ICC Statute, as it involved a large number of victims.
3.2. War crimes
War crimes are serious violations of international humanitarian law and constitute individual criminal accountability. The four Geneva Conventions and Additional Protocol I enshrine grave breaches and Article 85(5) of Additional Protocol I expressly states that these “shall be regarded as war crimes”193.194 If these rules are violated, the perpetrator becomes subject to universal jurisdiction, giving any state the right to punish the conduct. The first time international courts were able to try defendants directly on the basis of international law were the Nuremberg and Tokyo Tribunals after World War II. The law of war crimes was further developed by the ICTY and ICTR. Today, the ICC holds perpetrators accountable who violate international humanitarian law in armed conflicts whether international or non-international.195 At the moment, no definitive international codification of war crimes exists, because the criminalization of international humanitarian law is based on international treaties or customary international law.196 However, Article 8 of the ICC Statute encloses a list of war crimes, which include grave breaches of the Geneva Conventions, serious violations of common Article 3 and
183 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(k) 1. 184 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(k) 2. 185 See Article 7(1)(a) – (j) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 186 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(k) footnote 30. 187 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (384). 188 See International Criminal Court, Elements of Crimes (2013), Article 7(1)(k) 3. 189 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (261). 190 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 229 – 264 (261). 191 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 68. 192 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 72. 193 See Article 85(5) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), 08.06.1977 UNTS Vol. 1125, No. 17512 194 See Gaeta P., “War crimes and other international ‘core’ crimes” in Clapham A., Gaeta P. (eds) The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) pp 737 – 766 (744, 745). 195 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 390 – 527 (399, 400). 196 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 390 – 527 (403).
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other provisions which are recognized under customary international law. While it contains an extensive list, not all provisions which may constitute war crimes are codified in the Statute.197
3.2.1. General requirements for war crimes Article 8 of the ICC Statute distinguishes between crimes in international and non-international armed conflicts. International humanitarian law is only applicable in case of an armed conflict. An international armed conflict involves two or more states, with at least one state using armed force against another state. In a non-international armed conflict on the other hand, the use of force occurs between the government forces of a state and another armed group or between armed groups within the territory of the same state. Article 8 (2) (d) and (f) of the Rome Statute stipulate a threshold that has to be met for a conflict to trigger the applicability of Article 8 (2) (c) and (e). It states that “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature” do not establish jurisdiction of the ICC.198 This requirement is necessary to ensure that the state’s sovereignty is not interfered with.199 All Geneva Conventions of 1949 comprise a common Article 3, which outlines basic norms applicable also in internal conflicts.200 In 1977, the Additional Protocol II was agreed upon, which regulates internal armed conflicts. Since the negotiations of these conventions a lot has changed. Nowadays wars between states are not common anymore, instead the number and intensity of armed conflicts within states have increased. These internal conflicts also have consequences for other states, because states depend upon each other and have closer relationships than in earlier times. In the ICC Statute circa half of the provisions of international conflicts are also recognized for internal ones, while others are so fundamental that they constitute customary law.201 A necessary requirement for a war crime is the connection to an armed conflict, the so-called nexus. This prerequisite distinguishes a war crime from an offence under domestic law.202 According to the ICC Elements of Crimes each offence needs to meet the requirement of “took place in the context of and was associated with”.203 The ICTY Appeals Chamber stressed in the Kunarac case: “…The armed conflict need not to have been casual to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. …the Trial chamber may take into account, inter alia the following factors: the fact that the perpetrator is a combatant; the fact that the victim is non- combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.” 204 Additionally, a mental element is required in the form of awareness of the conflict. In the introduction of war crimes in Article 8, it is expressed that the perpetrator does not have to legally
197 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 264 – 307 (270). 198 See Article 8(2)(d) and (f) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 199 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 390 – 527 (415). 200 See Article 3 Geneva Convention relative to the protection of civilian persons in time of war, 12.08.1949, 75 UNTS 287, No. 973. 201 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 264 – 307 (272, 273). 202 See La Haye E., War Crimes in internal armed conflicts, (Cambridge University Press, 2008) pp. 104 – 131 (110). 203 See International Criminal Court, Elements of Crimes, Article 8 (2013). 204 See ICTY Appeals Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 12.06.2002, IT-96-23 & IT-96-23/1-A, Judgement, paras. 58, 59.
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evaluate the existence of the conflict and whether the conflict is international or non-international. Also, he or she does not have to be aware of the “facts that established the character of the conflict as international or non-international”205. According to the ICC Elements of Crimes Article 8(c) awareness of factual circumstances suffices.206 This is necessary to meet the requirement of “took place in the context of and was associated with”207. Although this condition is a mere theoretical one because in practice it is unlikely that a perpetrator meets the requirement of the crime being connected to an armed conflict while not being aware of its existence.208 In conclusion, a war crime consists of actus rea, meaning an illegal act, and mens rea, which is the mental element.209 In regards to the discussed case of this thesis there is an ongoing conflict between the LRA, as an armed and organized group on the one side, fighting against the government of Uganda on the other side. The UPDF and other local defense forces were organized and equipped for carrying out protracted operations. Also, the LRA showed such features of an organization, they had headquarters, a formal rank structure, advanced communication systems using radios and codes. Furthermore, they were in possession of light and heavy weaponry and they had the capability of carrying out large operations. Ongwen’s crimes were committed while he was a member of the LRA. He was aware of the ongoing conflict, which is proven by radio communications where he updated his superiors about the progress of the hostilities.210 Also, this fight covered the entirety of northern Uganda but did not affect neighboring states directly, which leads to the conclusion that this armed conflict is a non-international one.211
3.2.2. Attack against civilian population Intentionally attacking civilians is forbidden according to Article 8(2)(e)(i) Rome Statute.212 This prohibition is also regulated in Article 13(2) Additional Protocol II213 and reflects customary law. Civilians are protected persons in international and non-international armed conflicts. Article 13 Additional Protocol II214 does not provide a definition for civilian population, it just negates the protection in case and for the time a person takes actively part in the hostilities. This norm aims to protect the civilian population as such and individual civilians.215 In the Katanga case, it was stated that for the conduct to be illegal, civilians must be the primary object of the attack, because operations against military objectives which have merely an incidental effect on civilians are not covered by this provision. Even if the attack served a military purpose, the requirements of Article 8(2)(e)(i) of the Rome Statute are met, when the damage to
205 See International Criminal Court, Elements of Crimes (2013), Article 8(b). 206 See International Criminal Court, Elements of Crimes (2013), Article 8(c). 207 See International Criminal Court, Elements of Crimes (2013), Article 8(c). 208 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 264 – 307 (283). 209 See Gaeta P., “War crimes and other international ‘core’ crimes” in Clapham A., Gaeta P. (eds) The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) pp 737 – 766 (747). 210 See ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen, 21.01.2016, ICC-02/04-01/15
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the civilian population after an indiscriminate attack reaches a vast extent.216 With regards to mens rea, it is necessary that the perpetrator acted with intent. This intent shall include the direction of the attack, civilians being the objective, awareness of the civilian population as well as the general required intent of awareness of the “factual circumstances that established the existence of an armed conflict”217.218 Dominic Ongwen planned with other leaders beforehand to attack the Pajule Internally Displaced Person’s Camp with the purpose of attacking civilians, who were perceived as supporters of the government. About 40 armed LRA fighters attacked the residents, the soldiers stationed there and the trading center on 10 October 2003. At the time of the attack there were circa 15,000 to 30,000 people living in that camp.219 On 29 April 2004 Dominic Ongwen as commander of the Sinia brigade carried out the Odek Internally Displaced Person’s Camp, where approximately 2,000 to 2,600 people lived at that time. Once again, the objective of the attack was the residents, because of their perceived supportive status for the government.220 Another attack happened on 19 May 2004 on the Internally Displaced Person’s Camp in Lukodi. This attack was planned by Dominic Ongwen and targeted the estimated 7,000 civilians living in that camp.221 On 8 June 2004 the Abok Internally Displaced Person’s Camp, where 7,000 to 12,000 people lived, was attacked by the LRA. Again, the residents were the main target. The Sinia brigade was the force that carried out the attack, with Ongwen having overall command.222 Each time the civilians living in the camps were the target of the attacks, which fulfills the requirement of an attack against civilian population. These people were targeted intentionally, which is displayed by the planning beforehand. The intent does not only include the civilians as objectives and that the attack was directed against them, also Dominic Ongwen was aware of the circumstances of the armed conflict as commander of his brigade.
3.2.3. Murder and attempted murder According to Article 8(2)(c)(i) first alternative of the ICC Statute murder constitutes a war crime in non-international armed conflicts.223 The victim of the crime has to be a protected person. These are persons, who do not actively participate in the hostilities, namely soldiers hors de combat, civilians, medical personnel or religious personnel who are not actively engaged in the hostilities.224 Article 41 (2) Additional Protocol I defines hors de combat as a person that “is either in the power of an adverse party or clearly expresses an intention to surrender or has been rendered unconscious or otherwise incapacitated by wounds or sickness and therefore incapable of defending him- or herself; providing that in any of this cases he abstains from any hostile act
216 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgement para. 802. 217 See International Criminal Court, Elements of Crimes (2013), Article 8(e)(i) 5. 218 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgement para. 808. 219 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 67. 220 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 72, 73. 221 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 77, 78. 222 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 82, 83. 223 See Article 8(2)(c)(i)-1 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 224 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(c).
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and does not attempt to escape”.225 Even though Additional Protocol I regulates international armed conflicts, this definition can also be applied to non-international armed conflicts, because state practice has established this norm as one of customary international law.226 According to a witness, Dominic Ongwen commanded an attack on Odek on 29 April 2004 where multiple people were killed.227 This attack resulted in many casualties and at least 61 deaths, mostly by gunshots.228 Furthermore, during the attack on Pajule on 10 October 2003 at least two people were killed.229 During the attack on Ludoki people were shot, stabbed and beaten to death and burned alive inside of their homes. Many residents were left behind wounded. This attack was planned by Dominic Ongwen himself.230 In Abok 28 civilians died, while some were able to survive their injuries.231 The people killed were civilians and hence protected persons. Murdering them therefore fulfills the definition of Article 8(2)(c)(i) first alternative of the ICC Statute.
3.2.4. Rape In the Rome Statute rape is criminalized in Article 8(2)(e)(vi) first alternative.232 It requires “an invasion of the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body”.233 This invasion has to be “committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent”.234 This regulation is drafted gender-neutral, because men and women can be victims of this crime.235 In the Bemba case the court pointed out, that invasion covers “same-sex penetration as well as both male and/or female perpetrators and victims”.236 Any other part of the body means, that not only vaginal or anal penetration is included; oral rape is also recognized under this statute in the light of its humiliating and degrading character.237 The circumstances of the rape have to be taken into account, namely the perpetrator acts with force or threatens or coerces the victim. The meaning of “taking advantage of a coercive environment”238 was explained in the Bemba case in such way that the judges have to consider that there are multiple possibilities on how such an environment can be created. As examples
225 See Article 41(2) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), 08.06.1977 UNTS Vol. 1125, No. 17512. 226 See ICRC, IHL Database Customary IHL, “Rule 47. Attacks against Persons Hors de Combat”
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were given, the number of perpetrators, whether the crime happened in temporal connection to hostilities or if the rape was part of multiple offences. Additionally, it has to be proven that the rapist was indeed taking advantage of these circumstances.239 The lack of consent by the victim has not to be proven, because it does not constitute a legal element in the ICC Statute. In the judge’s opinion in the Bemba case proving the circumstances named above suffices to get justice.240 Concerning the last circumstance of “a person incapable of giving genuine consent”241, which means the person is “affected by natural, induced or age related incapacity”.242 The prosecutor only has to prove this affection to meet the requirements of rape in such cases. However, the ICC Statute does not provide an age limit for the ability to give “genuine consent”243. Overall, to be successful, only one of the named circumstances has to be proven by the prosecution.244 In the Ntaganda case the judges stressed that rape constitutes a norm of jus cogens, meaning that no derogation is permissible and consequently, it is forbidden in peace times and during war. Moreover, it cannot be justified with being legitimate for military reasons. It was concluded, that also members of the same armed group as the perpetrator are protected persons under the ICC Statute. Therefore, rape against people from the offender’s own party to the conflict, states a war crime under this provision.245 Within the brigade under the command of Dominic Ongwen, he was, among other things, in charge of the system of rape of abducted young girls. 246 A witness described how she was raped by a female LRA fighter with a stick used for cooking and a comb during the attack on Odek.247 Dominic Ongwen had 5 so called “wives”, who he repeatedly raped according to their testimonies.248 One of them was raped by him when she was only about ten years old.249 P-101’s vagina was penetrated by Dominic Ongwen’s penis and physical force as well as threats to her life were used by him so she would not refuse.250 This satisfies the requirement of an invasion of the body, in this case the vagina of P-101’s, with a sexual organ, Dominic Ongwen’s penis, resulting in penetration. This happened with the threat of force and even to P-101’s life; this left the girl without the ability to give genuine consent. The same act was committed against P- 214, P-99, P-226 and P-227 in similar ways using threats and physical violence251, depriving his victims of the ability to give genuine consent.
239 See ICC Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, 21.03.2016, ICC-01/05-01/08, Judgement, para. 104. 240 See ICC Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, 21.03.2016, ICC-01/05-01/08, Judgement, paras. 105, 106. 241 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-1 2. 242 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-1 footnote 64. 243 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-1 2. 244 See ICC Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, 21.03.2016, ICC-01/05-01/08, Judgement, paras. 107, 108. 245 See ICC Trial Chamber VI, The Prosecutor v. Bosco Ntaganda, 04.01.2017, ICC-01/04-02/06, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, paras. 51 – 53. 246 See ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen, 21.01.2016, ICC-02/04-01/15
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3.2.5. Sexual slavery Sexual slavery constitutes a war crime according to Article 8(2)(e)(vi) second alternative.252 Firstly, it is necessary, that “the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty”.253 Secondly, “the perpetrator caused such a person or persons to engage in one or more acts of sexual nature”.254 Sexual slavery is a special form of slavery, given the particular sexual component. Forced marriage, domestic servitude and forced labor including sexual activities are also incorporated in this crime. The difference to rape lies within the element of continuance, because the crime of rape ends after the sexual act unlike sexual slavery, which lasts over a certain period of time.255 As pointed out under 3.1.4 in the Ntaganda case it was stated that not only rape but also sexual slavery, as a special form of slavery, has the status of jus cogens with the same results as mentioned above.256 The list given by the Elements of Crimes is an open-ended one according to the judges in the Katanga case. The ownership over a person can be exercised in many different forms, but all result in that person being without any autonomy. The court has to take into consideration several factors on a case-by-case basis, for instance regulating the freedom of movement and avoiding any possibility of escape of the person. It is not necessary that the slavery follows any economic reasons. The focus lies on the victim not being able to alter the circumstances he or she lives in. The special aspect of this war crime is the inability of a person to freely decide when and how he or she wants to engage in sexual activity.257 In order to satisfy the subjective element of the crime the offender was conscious of exercising at least one of the elements of ownership and coerced the victim to “acts of sexual nature”.258 Concerning forced marriages in the Katanga case, it was stressed that “taken as a wife” had a “clear reference to a coercive environment entailing almost certain engagement in acts of a sexual nature”.259 These women are declared wives without their consent which displays the element of ownership.260 Several witnesses and at the same time victims of Ongwen testified that they had been forced to stay with him, while repeatedly being raped and the constant threat of harsh punishments if they would have tried to escape.261 During P-99’s captivity she was closely guarded, and her status
252 See Article 8(2)(e)(vi)-2 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 253 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-2 1. 254 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-2 2. 255 See Klamberg M., Commentary on the law of the International Criminal Court (Torkel Opsahl Academic EPublisher, 2017) pp. 65 – 152 (99). 256 See ICC Trial Chamber VI, The Prosecutor v. Bosco Ntaganda, 04.01.2017, ICC-01/04-02/06, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, para. 51. 257 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgement paras. 975 – 978. 258 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgement para. 981. 259 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgement para.1000. 260 See ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgement para. 1005. 261 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 109 (witness p-99), 111 (witness p-101), 113, (witness p- 214), 116 (witness p-226), 118 (witness p-227).
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was reduced to a servile one. She was forced to have sex with him whenever he demanded it.262 Similar testimonies were given by P-101263, P-214264, P-226265, P-227266. However, Dominic Ongwen did not only directly commit this crime; he also, as a commander of the Sinia brigade, exercised control over the system of distributing women and girls to other commanders and fighters. This system was part of a common plan made up by the LRA leadership and Ongwen contributed to its realization.267 These girls and women were deprived of their liberty of movement, displayed by the fact that they were guarded and unable to leave. Them being declared as wives of Dominic Ongwen and of other commanders, whom they were given to by Ongwen,268 displays the ownership element of this crime. Regarding the second element of being forced to engage in acts of sexual nature it can be said that the victims were deprived of their ability to choose when and who they want to engage in sexual activities with, as they had to comply with Ongwen’s demands. Given that Ongwen restricted the movements of his “wives” and used physical force against his victims so they would comply with his demands and have sex with him,269 he exercised a right of ownership and coerced them to engage in sexual activities.
3.2.6. Forced pregnancy Article 8(2)(e)(vi) third alternative of the Rome Statute criminalizes forced pregnancy as a war crime.270 The Elements of Crimes define it as the confinement “of one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law”.271 It is not necessary that the perpetrator impregnated the woman or women himself.272 The objective of this provision is to punish the imprisonment of the pregnant woman.273 The victim must be successfully made pregnant to satisfy the definition of this crime. Unsuccessful attempts or women who are incapable of bearing children cannot become victims of this crime. “Forcibly made pregnant”274 does not necessarily mean that the perpetrator resorted to violence. The term “forcibly” covers the effects of oppressive circumstances rather than strictly physical assaults, for example, if a woman is prevented from using contraceptives. Also, the use of technology to impregnate a woman against her will fall under
262 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 90 paras. 69, 70. 263 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 91 paras. 76, 77. 264 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 92 paras. 85, 86. 265 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 94 paras. 94, 95. 266 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 95 paras. 103, 104. 267 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, p. 99,100 paras. 119 - 123. 268 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, pp. 90 (para. 69), 92 (para. 84), 93 (para. 93), 95 (para. 102). 269 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, pp. 90 (para. 69), 92 (para. 84), 93 (para. 93), 95 (para. 102). 270 See Article 8(2)(e)(vi)-3 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 271 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-3 1. 272 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (370). 273 See Markovic M., „Vessels of Reproduction: Forced Pregnancy and the ICC“ (2007), Michigan State Journal of International Law, Vol. 16:439, pp. 439 – 458 (442). 274 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-3 1.
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the elements of this crime. The prosecution is not required to show evidence of sexual assault, just that the victim was pregnant and that the impregnation happened forcibly.275 The confinement element is defined as keeping the victim at a place without the possibility to leave. The objective of that restriction of movement aims at keeping the woman pregnant. However, even if a miscarriage or other difficulties in the pregnancy occur and the woman would be unable to carry the child to term or give birth, this requirement would be met. The confinement must happen between “the time the woman thought to be pregnant and the termination of the pregnancy”276. Additionally, in order to commit the material elements of this crime with knowledge and intent, the perpetrator needs to have “the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law”277.278 The ICC Pre-Trial Chamber stated in the case of Dominic Ongwen that the perpetrator’s knowledge must include that fact that the victim is pregnant as well as that she conceived forcibly. Furthermore, the court stressed that the first alternative of the special intent, namely “affecting the ethnic composition of any population”279 includes a link between the pregnancy and the confinement as well as the outcome of the pregnancy. The second alternative of special intent (“carrying out other grave violations of international law”280) is not as restrictive in its’ interpretation.281 The charges against Dominic Ongwen of keeping forcibly impregnated women in confinement with the intent to carry out grave violations of international law were confirmed.282 Witness P-101 was pregnant three times as a result of the rapes by Dominic Ongwen. The second and third pregnancy fall under the jurisdiction of the ICC. During these times she was confined inside his household.283 Witness P-214 was guarded by Ongwen’s armed security escorts during her first pregnancy and was under constant fear that she would be followed, brought back and killed if she would have tried to escape.284 Both women became pregnant as a result of the rapes by Dominic Ongwen,285 satisfying the requirement that they have to be impregnated forcibly. In each case they were unable to escape during their pregnancies, which displays the confinement element. Ongwen had the intention to carry out grave violations of international law, because he used P-101 and P-214 as his forced wives, raped them, sexually enslaved them and tortured them.286
275 See Boon K., “Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent” (2001), Columbia Human Rights Law Review, Vol. 32:625, pp. 626 – 675 (660, 661). 276 See Boon K., “Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent” (2001), Columbia Human Rights Law Review, Vol. 32:625, pp. 626 – 675 (662, 663). 277 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-3 1. 278 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (370). 279 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-3 1. 280 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vi)-3 1. 281 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 100. 282 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 101. 283 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 111. 284 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 114 285 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, pp. 91 (para. 79), 93 (para. 88). 286 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, pp. 91 (para. 79), 93 (para. 88).
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3.2.7. Torture The war crime of torture in non-international armed conflicts is regulated in Article 8(2)(c)(i) fourth alternative in the Rome Statute.287 The ICC Elements of Crimes define torture, similar to the Convention against torture and other cruel, inhuman or degrading treatment or punishment of 1984, as the “infliction of severe physical or mental pain or suffering”.288 Although, within the ICC Statute the perpetrator is not required to act as an official.289 In the Kunarac case, the trial chamber pointed out the different objectives of international humanitarian law and human rights law. Whereas human rights law aims at protecting individuals from offences by a state, international humanitarian law also pursues the intention of punishing perpetrators acting independently from a state.290 The second element, besides the “intentional infliction of severe pain or suffering, whether physical or mental, upon a person”291, is that the acts are serving a specific purpose. Obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind are given in a non-exhaustive list as purposes in the ICC Elements of Crimes. It is not required that these listed purposes are the only or primary motives of the offender, it is sufficient if they are part of other reasons for committing this crime.292 As stressed in the Kunarac case, the perpetrator’s incentive consists in part of one or more of the listed purposes, but they do not need to be dominating his or her motive.293 In the case that such purpose is lacking, the offence may constitute the crime of cruel treatment.294 In regards to Dominic Ongwen’s case, it can be said that during the attack on Odek in April 2004 the people living in that camp were threatened with death and beaten if they did not comply with the orders of the LRA, for example they did not walk fast enough or if a child cried.295 During the attack on Pajule on 10 October 2003 some civilian residents were threatened with violence, tied up and forced to carry wounded LRA fighters and pillaged items.296 The same happened in Lukodi297 and Abok298. Being threatened with violence or death, tied up, and forced to carry wounded fighters are displays of infliction of severe physical and mental pain as well as suffering. This infliction served the purpose of coercing the people to comply with the orders of the LRA. Another purpose is the punishment for the perceived affiliated status of the people with the government.299
287 See Article 8(2)(c)(i)-4 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 288 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(c)(i)-4 1 and Article 1(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10.12.1984, UNTS Vol. 1465, No. 24841. 289 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 390 – 527 (434). 290 See ICTY Trial Chamber Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 470 (i). 291 See Article 1(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10.12.1984, UNTS Vol. 1465, No. 24841. 292 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 390 – 527 (434), International Criminal Court, Elements of Crimes (2013) Article 8(2)(c)(i)-4 2. 293 See ICTY Trial Chamber Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 486. 294 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 264 – 307 (286). 295 See ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen, 21.01.2016, ICC-02/04-01/15
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3.2.8. Cruel treatment According to Article 8(2)(c)(i) third alternative of the Rome Statute cruel treatment constitutes a war crime. Cruel treatment means the infliction of “severe physical or mental pain or suffering upon one or more persons”.300 The wording in the ICC Statute differs between internal and international armed conflicts. While in war crimes in non-international armed conflicts, it is called cruel treatment; in war crimes in international conflicts it is called inhuman treatment. It can be said that these terms can be used synonymously.301 Also, the crime has to be committed against protected persons, as explained in chapter 3.1.3.302 The protected objective hereby is human dignity. The definition of this crime does not include as many prerequisites as are needed to meet the requirements of torture.303 The infliction of pain does not have to serve a specific purpose.304 Some examples for this war crime are “corporal punishment, mutilation, biological experiments, imprisonment without daylight or other inhuman conditions of detention”.305 The threshold of the infliction of severe physical or mental pain or suffering differentiates this crime from outrages upon personal dignity and therefore makes it the more serious one.306 During the trial of Dominic Ongwen, one 15 year old victim of an attack of the LRA testified, that he was stripped of his shirt, which was then used to tie up his hands behind his back. Another one reported that he was beaten with a gunstock.307 During and after the attacks on Pajule, Odek, Abok and Lukodi the surviving residents were subjected to threats of being killed, beatings and many were abducted.308 In Odek a man was forced to kill another person. Furthermore, he was forced to “inspect decomposing bodies, including that of his father, to ensure that no one was alive”.309 The threat of violence and death, being tied up and getting beaten are expressions of the infliction of severe physical or mental pain or suffering. The victims of these crimes were civilians living in the attacked camps310 and therefore protected persons.
3.2.9. Outrages upon personal dignity Article 8(2)(c)(ii) of the Rome Statute criminalizes “outrages upon personal dignity, in particular humiliating and degrading treatment”.311 The ICC Elements of Crimes define outrages upon personal dignity as the humiliation, degradation or other violation of someone’s dignity by a
300 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(c)(i)-3 1. 301 See Nowak M., “Torture and other cruel, inhuman, or degrading treatment or punishment” in Clapham A., Gaeta P. (eds) The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) pp. 387 – 410 (401). 302 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(c)(i)-3. 303 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 390 – 527 (439). 304 See ICRC, IHL Database Customary IHL, “Rule 90. Torture and Cruel, Inhuman or Degrading Treatment”
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perpetrator.312 It is not necessary for the victim to be aware of that or even to be alive. The degree of this violation must be so severe that it can be “generally recognized as an outrage upon personal dignity”.313 The intensity is measured objectively, as stated by the trial chamber in the Kunarac case (“the humiliation to the victim must be so intense that the reasonable person would be outraged”).314 Identically to murder and cruel treatment, the victim of the crime has to be a protected person, as pointed out in chapter 3.1.3.315 When assessing whether the crime is indeed humiliating, the cultural background of the victim has to be taken into account.316 The victim does not need to be directly physically or mentally harmed, for instance it would suffice not to allow him or her to comply with his or her religious rules.317 Further examples are using persons as human shields, confining someone under inappropriate conditions or “performing subservient acts and being forced to relieve bodily functions in one’s clothing”318.319 The effects of such an offence do not have to be permanent to suffice the definition of this crime.320 The perpetrator does not have to intentionally humiliate the victim; he or she just needs to be aware that his or her actions could possibly have such an effect.321 The difference between cruel treatment and outrages upon personal dignity is that the latter does not require the perpetrator to inflict severe pain or suffering, in other words it is the less serious crime.322 Dominic Ongwen committed this crime more than once in addition to others when he attacked Internally Displaced Persons Camps on several occasions.323 A witness described how he had to watch how his and other children were confined in a hut, which was then set on fire.324 During that attack a man was forced to watch how his wife was raped with a comb and a stick by a female LRA fighter. After the attack on Odek the captured people were walking too slowly on their way to the LRA camp, so the rebel fighters forced mothers to leave their children alongside the road to increase the speed.325 P-226 was forced to beat a UPDF soldier to death after he was captured.326 Someone being forced to watch how children are burned alive, or forcing mothers to abandon their children or coercing someone to commit murder humiliates and violates a person’s dignity. The described acts are so intense that a reasonable person would be outraged. Furthermore, these
312 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(c)(ii) 1. 313 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(c)(ii) 1 – 2, footnote 57. 314 See ICTY Trial Chamber Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 504. 315 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(c)(ii) 3, footnote 57. 316 See ICRC, IHL Database Customary IHL, “Rule 90. Torture and Cruel, Inhuman or Degrading Treatment”
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acts directly caused mental harm to the victims. Even if there was no direct intention to humiliate these victims, it cannot be argued that there was no awareness that these actions would have such an effect.
3.2.10. Destruction of property Article 8(2)(e)(xii) of the ICC Statute forbids “destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict”.327 In addition to the general requirements, this crime consists of the following elements: destruction or seizure of certain property which belongs to an adversary and is protected under international law of armed conflict. This definition covers multiple possibilities of devastating somebody’s possessions, for example burning down, tearing down or any other way of causing destruction. Also, heavily damaging property portrays as “partial destruction”, and as a result is in accordance with “destroying”.328 Dominic Ongwen was the head of the Sinia brigade and in his role as commander he gave orders to his soldiers to destroy protected property.329 During the attack on Ludoki resident’s houses and other property items were systematically set on fire.330 Also in Abok property was burned down.331 The burning down of houses displays a classical way of destroying. These houses belonged to the inhabitants of the attacked camps, which makes them the adversary’s property. As they were civilians they are protected under international law, which leads to the third requirement of this provision being fulfilled.
3.2.11. Pillaging According to Article 8(2)(e)(v) of the Rome Statute pillaging constitutes a war crime.332 Pillaging is defined as “robbing a place using violence, especially in war time”.333 The Elements of Crimes state that the crime has to be committed to use the appropriated goods for private or personal purposes.334 This rule reflects customary international law.335 The definition includes public as well as private, along with movable and immovable property.336 In regards to the scale of the crime, both individual and organized attacks are covered. In the Bemba case the trial chamber stated that in relation to the gravity the specific circumstances should be taken into account.337 This crime
327 See Article 8(2)(e)(v) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 328 See Klamberg M., Commentary on the law of the International Criminal Court (Torkel Opsahl Academic EPublisher, 2017) pp. 65 – 152 (144, 145). 329 See ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen - ICC-02/04- 01/15, 21.01.2016
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specifically requires dolus specialis or intent to “deprive338 the owner of the property”.339 This intent does not necessarily include that the perpetrator uses the appropriated property him- or herself. Furthermore, knowledge of the offender about the non-consent of the owner is required. If the owner is not present in the time of confiscation or there were violent circumstances, the defendant has to prove that he was unaware of the lack of consent.340 In the course of the attack against the Internally Displaced Persons Camp in Pajule, several witnesses testified uniformly, that Dominic Ongwen ordered the fighters under his command to pillage things from the people’s huts and shops.341 During the assault on Odek not only the fighters under his command pillaged items from resident’s homes and shops, Ongwen personally committed this act as well.342 Ongwen’s instructions for the attack on Lukodi included the explicit order to steal food.343 In Abok, “food and other property” was pillaged.344 The looted items included clothes, utensils for cooking, first aid provisions and food from the private homes of the residents as well as from the trading center.345 During each violent attack civilian houses and shops were robbed. The intention was to deprive the people of their property and use the goods for the fighters of the LRA. Because of the violent circumstances during the attacks, Ongwen cannot argue that he was unaware of the lack of consent of the owners.
3.2.12. The conscription and use of child soldiers Article 8(2)(e)(vii) of the Rome Statute states that conscripting or enlisting children under 15 into armed forces or groups or using them to participate actively in hostilities constitutes a war crime.346 This provision covers the participation of children in national armed forces, as well as in rebel groups.347 Given that the Convention on the Rights of the Child of 20 November 1989 in Article 38(3)348 also contains this prohibition, and that the vast majority of states ratified this convention, it can be said that it has become customary international law.349 The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict sets the age limit for the recruitment of persons at 18. It defines a child as a person under the age of 18, unless majority is attained earlier under the law of the state concerned, and encompasses to protect such persons from being involved in armed conflicts. Armed groups which do not belong to government forces are also expressly included in the prohibition of
338 Deprive means preventing (a person or place) from having or using something. See Oxford Dictionary
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recruiting and using children in hostilities.350 However, these new provisions are treaty law and they have not developed into customary law, and therefore a person can only be criminally liable for conscripting and using children under the age of 15 under criminal international law.351 Not only is the forced conscription of children criminalized, but also the voluntary enlistment. Both are different forms of recruitment with the distinguishing element of consent. However, the consent of the child does not exclude the recruiter from his or her criminal responsibility.352 Forced recruitment involves threats or physical harm to the child or his or her relatives or friends.353 The term “participate actively”354 means to take part in hostilities and other military activities associated with combat. For example, children could be acting as spies or sabotage the enemy or have to undertake courier tasks. On the other hand, if a child delivered food to a base or worked in the household of an officer, it would not suffice the definition of active participation.355 The Elements of Crimes require that the “perpetrator knew or should have known”356 about the child being under 15 years old. This means, that the recruiter has the obligation to corroborate that the child is not under the age limit.357 In the case of Dominic Ongwen, during Pre-Trail the prosecutor presented witness statements from former LRA members who either are former child soldiers themselves or observed their presence, as well as from residents of the attacked Internally Displaced Person’s Camps. Using child soldiers was a “systematic practice and a policy choice of the LRA”358. Children, sometimes under 10 years old and male as well as female, underwent military training and were taught to use firearms on a regular basis. They were sent on missions with LRA units and participated in fights with the UPDF. Furthermore, children were assigned as “escorts” to other fighters to go with them on active hostilities, to provide them physical security and assist them on missions. Dominic Ongwen used such escorts.359 He actively participated in attacks where children were abducted to become child soldiers.360 Dominic Ongwen personally gave orders for these abductions, was a supervisor for these children during their military training and was a commander of units which included children under 15 and sent them into hostilities as active participants.361 Ordering the abduction or abducting children under 15 displays forced conscription into an armed group. Supervising the military training of these children and as well as sending them into battles displays active participation in hostilities. It can hardly be argued, that Dominic Ongwen was unaware of
350 See Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25.05.2000, Preamble, Articles 1 – 4. 351 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 264 – 307 (304). 352 See ICC Pre-Trial Chamber I, The Prosecutor v. Thomas Lubanga Dylio, 29.01.2007, ICC-01/04-01/06, Decision on the confirmation of charges, paras. 246, 247. 353 See Cohn I., Goodwin-Gill G., Child soldiers - The role of children in armed conflict (Clarendon Press, Oxford 1994), pp. 24 – 55 (24). 354 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vii) 1. 355 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 390 – 527 (464, 465). 356 See International Criminal Court, Elements of Crimes (2013) Article 8(2)(e)(vii) 3. 357 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 264 – 307 (303, 304). 358 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 142. 359 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 141 – 143. 360 See ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen - ICC-02/04- 01/15, 21.01.2016
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the young age of these children, given that some were even under 10 years old and that the practice of the LRA of using children is commonly known362.
3.3. Multiplicity of offences
Given the complexity of conducts under international criminal law, an offence may satisfy the requirements for war crimes and crimes against humanity at the same time. The overlap depends on the contextual elements of the crime.363 The crimes of rape, killing, torture and enslavement are enshrined in Article 7 as well as Article 8 of the ICC Statute and can be applied at the same time.364 Charging a perpetrator for the same conduct under both articles is permissible, because each contains a material element which the other does not require. A war crime needs the nexus to an armed conflict, while a crime against humanity requires the contextual element of a widespread or systematic attack directed against any civilian population.365 For cumulative charges to be permissible an offence needs to meet the requirements of more than one crime and each has to encompass different material elements.366 However, persecution is regarded as lex specialis. A conviction of an individual crime of persecution cumulative to another crime against humanity is not permissible.367 Because of the discriminatory element of persecution, it is the more specific illegal act.368 In the case of Dominic Ongwen, the ICC Pre-Trial Chamber stated that even though crimes may be based on the same facts, they are not alternative and lead to parallel convictions. It is important that each one includes a different legal element than the other or a different protected interest is hurt. The Pre-Trial Chamber further stressed that the prosecutor is allowed to present concurring charges and the Trial Chamber later on will decide on resolving this question.369
362 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 142. 363 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 421 – 482 (461). 364 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (386). 365 See ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96- 23-T & IT-96-23/1-T, Judgement, para. 556. 366 See ICTY Trial Chamber, Prosecutor v. Miroslav Kvočka, Mlado Radić, Zoran Žigić, Dragoljub Prcać, 02.11.2001, IT-98-30/1-T, Judgement, para. 228. 367 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 327 – 389 (389). 368 See ICTY Trial Chamber, Prosecutor v. Miroslav Kvočka, Mlado Radić, Zoran Žigić, Dragoljub Prcać, 02.11.2001, IT-98-30/1-T, Judgement, para. 227. 369 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 32, 33.
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4. Defense of duress under Article 31(1)(d) Rome Statute
After laying out the crimes Dominic Ongwen is charged with, his defense should also be looked at. Given that duress was raised during pre-trial to exclude his criminal responsibility, the focus of this chapter will lie thereupon.370 Even though the Pre-Trial Chamber stated that duress is not permissible in his case because the necessary criteria are not met, it can still be raised before the Trial-Chamber. The Pre-Trial Chamber expressly pointed out that the trial would be the appropriate forum to decide upon this matter.371 However, as will be discussed later on, duress cannot merely be a complete defense, it can be used as a mitigating factor, which has impact on the sentence Dominic Ongwen will receive.372 Article 31 of the Rome Statute contains grounds for excluding criminal responsibility.373 The listing of defenses is not exhaustive.374 Because the defense raised duress to exclude Dominic Ongwen’s criminal responsibility during pre-trial, the focus of this chapter will lie thereupon.375 This defense may be raised when an individual was coerced to commit a crime against his or her will.376 Article 31(1)(d) of the Rome Statute377 combines duress and necessity, which are considered two different defenses in traditional common law. This combination reflects customary international law.378 In traditional common law, duress means that the threat to life and personal integrity is made by another person, while necessity means that the sources of the threat are natural circumstances beyond a person’s control.379 Article 31(1)(d) of the Rome Statute interprets the requirements for duress as follows: “(1)…a person shall not be criminally responsible if, at the time of that person's conduct: (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control.”380 The elements of this defense are the threat of death or serious bodily harm, that the reaction taken is both necessary and reasonable and that the actor does not intent to cause greater harm than the person tries to avoid.381 In the following chapters, each of these elements shall be explained further.
370 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 150. 371 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 151 – 156. 372 See Scaliotti M. „Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 1” (2001), International Criminal Law Review 1, pp. 111 – 172 (157). 373 See Article 31 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 374 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 164 – 287 (235). 375 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para. 150. 376 See Darcy S. Defences to international crimes in Schabas W.A. and Bernaz N., Routledge Handbook of International Criminal Law (Routledge, 2011) pp. 231 – 247 (234). 377 See Article 31(1)(d) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 378 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 164 – 287 (238). 379 See Scaliotti M. „Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 1” (2001), International Criminal Law Review 1, pp. 111 – 172 (143). 380 See Article 31(1)(d) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 381 See Ntoubandi F. Z., Amnesty for Crimes against Humanity under International Law (Martinus Nijhoff Publishers, 2007), pp. 81- 113 (105).
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4.1. Threat of death or of serious bodily harm
The first requirement set out by Article 31(1)(d) of the Rome Statute is “a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person”.382 This threat must be aimed at the life or bodily integrity, while threats against freedom or property do not constitute grounds for the accused to base his or her defense on.383 The threat must be serious as well as imminent. It can be aimed against the accused or any other person, without there being a special relationship between the threatened individual and the perpetrator.384 However, the threat must be real and not merely abstract danger. Nevertheless, continuing threats are covered under this provision. The accused cannot rely on this defense if he or she him- or herself has voluntarily put him- or herself in the position where the danger arises.385 The actor must feel compelled by that threat to commit a crime.386 Dominic Ongwen was abducted by the LRA at the age of 10. It is known that the LRA initiation process involves brutal beatings, usually with canes or sticks, and between 10 to 250 strokes. Breaking rules or trying to escape would have had the same consequences. Many children witness such beatings or even killing of others, who broke the rules. These tactics are used by the LRA to intimidate their abductees. Furthermore, it is common knowledge in northern Uganda that the rebel group retaliates against the children’s families if they try to escape. However, not only physical behavior could lead to punishment, also emotions like being quiet or keeping to oneself would then lead to suspicions about wanting to go home.387 Further intimidation tactics are hard physical labor, long marches and certain rituals. Such rituals include for example tasting of blood, children having to roll in another person’s blood, eating while their hands are full of blood or while sitting on top of people who just have been murdered.388 Dominic Ongwen was promoted to high commanding positions in a relatively short period of time. The reasons for his rise through the ranks were not just his loyalty and his committed crimes, but also that his previous superiors died and their ranks had to be filled. However, his increased status meant that he was placed under stricter surveillance. Also, Kony took precautions to ensure that his commanders would not try to escape by removing their “wives” and children from their households and guarding them.389
4.2. Necessity and reasonable justification
The second requirement is that “the person acts necessarily and reasonably to avoid this threat”.390 Necessary means that the action taken out of duress is the only possibility to avoid the
382 See Article 31(1)(d) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 383 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 164 – 287 (240). 384 See Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) pp. 398 – 421 (407). 385 See Ambos K., Defences in international criminal law in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 299 – 333 (312, 313). 386 See Scaliotti M. „Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 1” (2001), International Criminal Law Review 1, pp. 111 – 172 (156). 387 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008)
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threat.391 Reasonable means the taken act has the ability to reach the desired effect. This entails an objective proportionality test, determining if the harm caused was not greater than the one tried to be avoided.392 Dominic Ongwen was a victim of the circumstances he was forcibly put into. The indoctrination and the constant violent surroundings were the basis of the choices he made.393 In interviews, former fighters who knew Dominic Ongwen reported that during his early years within the LRA he had released abducted children or had ordered the ones under his command to pillage but to leave some food for the residents behind. However, over the years this compassion disappeared and witnesses stated in interviews that he murdered pregnant women and committed other atrocities.394 Even though it is not in question that a threat to Dominic Ongwen’s own life or that of his family members exists, it is questionable whether the actions he took can be labeled necessary or reasonable. As explained above, Dominic Ongwen attacked the Internally Displaced Person’s Camps of Pajule, Odek, Lukodi and Abok, where a lot of people were killed. He was involved in planning the attack on Pajule and evidence supports that he planned the attack on Lukodi himself. During the attacks on the camps, people were threatened and beaten, as well as forced to carry pillaged goods and wounded fighters. Furthermore, people were forced to leave their children behind. Some people were coerced by the LRA to kill other people. Adults and children were burned alive in their huts. Also, a lot of private property was destroyed and stolen during these attacks.395 Dominic Ongwen abducted numerous children and trained them to become child soldiers. He used them as escorts and commanded them as fighters in his brigade.396 Dominic Ongwen not only regularly raped his 5 “wives”, he also was in charge of the internal LRA system which distributed women and girls to fighters under his command for them to be raped. Concerning sexual slavery, Dominic Ongwen kept multiple women as slaves and sex slaves, who had to perform household duties for him, have sex with him when he demanded it and were guarded when he was not around, so they could not escape. The system of distributing women and girls within his brigade also included enslaving these people and using them as sex slaves. Dominic Ongwen also kept 2 women in confinement during their pregnancies (one was twice pregnant, the other once). He had 5 so called “wives”, who he had forced into marriage.397 As established above, following orders is necessary to survive within the LRA.398 Dominic Ongwen’s higher status in rank just enhanced Kony’s control over him and may have increased the threat against him and the necessity to comply with what was expected from him.399 Research
391 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 164 – 287 (240). 392 See Triffterer O., Commentary on the Rome Statute of International Criminal Court, (3rd ed., Verlag C. H. Beck 2016)), p. 1153, para. 58. 393 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008)
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has shown that loyalty and belief in Kony augments if a child stays with the LRA for more than a year. Additionally, it is easier to indoctrinate and increase the chance that someone is willingly staying with the LRA if the person abducted is of a young age.400 During the opening statement at the Lubanga Trial, the prosecution argued that abducted children under the coercive circumstances in a rebel group are deprived of their freedom of choice.401 A soldier is expected to tolerate a higher degree of threat than an ordinary person, but is not obliged to accept “his or her certain death or serious bodily harm”.402 Also the rank within the military of the perpetrator should be considered.403 Dominic Ongwen was a commander of the Sinia brigade, one of the four brigades of the LRA.404 Whereas Dominic Ongwen was forced into the position of a fighter for the LRA at the age of 10 and had to endure traumatic and threatening circumstances while growing up, other abductees still choose to escape rather than committing atrocities. His rise in rank and involvement in planning of attacks show that he made a choice to stay with the rebel group and shared their ideology. 405
4.3. Proportionality
Article 31(1)(d) of the Rome Statute reads “the person does not intend to cause a greater harm than the one sought to be avoided”.406 The individual does not have to cause less harm, he or she just must not have the intention to cause a greater one.407 While reasonable should be interpreted as an objective proportionality element, to cause no greater harm constitutes the subjective proportionality element.408 With regards to intent, the perpetrator must have acted with knowledge of the threat. If the actor also had other motives for the conduct, it would be irrelevant but only if the ultimate aim is to advert the danger.409 As already explained, Dominic Ongwen showed a high degree of brutality in his crimes. If he had only committed them to avoid the threat against him, he could have chosen not to rape women and girls or reduce the violence. He could have avoided taking women as forced wives and treating them as slaves. Also, as commander during attacks, he could have decreased the brutality used against the civilians in some way.410
400 See Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 (171). 401 See ICC, Office of the Prosecutor, The Case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Opening Statement, p. 10. 402 See Ambos K., Defences in international criminal law in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 299 – 333 (313). 403 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, para. 51. 404 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 56, 58. 405 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para.154. 406 See Article 31(1)(d) Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544. 407 See Ambos K., Defences in international criminal law in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 299 – 333 (314). 408 See Triffterer O., Commentary on the Rome Statute of International Criminal Court, (3rd ed., Verlag C. H. Beck 2016), p. 1153 para. 59. 409 See Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014) pp. 164 – 287 (242). 410 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, para.155.
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4.4. Complete defense or mitigating factor
Between common law and civil law, there is a differentiation regarding the question whether duress amounts to a complete defense or merely states a mitigating factor in the case of killing innocent people. Whereas civil law usually accepts duress as justification for murder, common law does not.411 In customary international law, there is no rule regarding this question. Also, due to the different regulations in the different legal systems, the conclusion that there is no concrete rule can be drawn.412 The ICC Statute does not state if the grounds for excluding criminal responsibility justify or merely excuse the perpetrator’s conduct.413 For the reason that the ICC Statute does not exclude to raise defense of duress in the case of murder, it seems that the provision reflects customary international law.414 In the Erdemović case the majority of the Appeals Chamber excluded duress as a complete defense for murder as a war crime or crime against humanity.415 Dražen Erdemović was a member of the Bosnian Serb Army in 1995 and participated with his unit in the executions of hundreds of unarmed Bosnian Muslim men around Srebrenica.416 After given the order to kill the Muslim men and boys, he refused at first but complied with the order, because he was told that he could either do as he was ordered or join the line of the people soon to be executed. For that reason, he raised the defense of duress during his trial before the ICTY.417 The judges in this case held different opinions on whether duress amounts to a complete defense or just states a mitigating factor. Until today, this question remains unresolved. The Trial-Chamber in Dominic Ongwen’s case may also take into consideration the following arguments when deciding upon this issue. In his dissenting opinion, Judge Cassese pointed out that the majority of the Appeals Chamber concluded that no special rule in customary international law exists that would state that duress should not be applicable to such crimes.418 Therefore Cassese draws, in difference to the majority, the conclusion that in absence of a special rule, the general one should apply, meaning duress amounts to a complete defense for all crimes if the necessary requirements are met. These requirements are “the severe threat to life or limb, no adequate means to escape the threat, proportionality in the means taken to avoid the threat, the situation of duress should not have been self-induced”.419 He further stressed that the proportionality criterion is the hardest one to prove and if the perpetrator saved his own life by killing somebody else, it can never be satisfied. It is simply not possible to weigh one person’s life against another one. An exception may be the case when the accused has the direct choice between his or her and the other person’s life and
411 See Dirnstein Y., Defences in McDonald G. and Swaak-Goldman O. (eds.), Substantive and Procedural Aspects of International Criminal Law (Kluwer Law International, 2000), pp. 367 – 389 (375). 412 See Knoops, G.J., Defenses in contemporary international criminal law (2nd ed., Martinus Nijhoff Publishers 2008) pp. 191 – 229 (209). 413 See Triffterer O., Commentary on the Rome Statute of International Criminal Court, (3rd ed., Verlag C. H. Beck 2016), p. 1151 para. 52. 414 See Ambos K., Other Grounds for Excluding Criminal Responsibility, in Cassese A., Gaeta P. and Jones J. R. W. D., The Rome Statute of the International Criminal Court: A Commentary, Vol. I (Oxford University Press, 2002) pp. 1003 – 1051 (1012) 415 See Knoops, G.J., Defenses in contemporary international criminal law (2nd ed., Martinus Nijhoff Publishers 2008) pp. 191 – 229 (209). 416 See ICTY, Trial Chamber, Prosecutor v. Dražen Erdemović, 05.03.1998, (Case No. IT-96-22-Tbis), Sentencing Judgement, paras. 2, 4. 417 See Ambos K., Defences in international criminal law in Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011), pp. 299 – 333 (315). 418 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, para. 11. 419 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, para. 41.
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when there is a high likelihood that the other one will die no matter what the offender choses to do.420 Judge Stephen agreed with that view and stated that “the stringent conditions always surrounding that defence will have to be met, including the requirement that the harm done is not disproportionate to the harm threatened. The case of an accused, forced to take innocent lives which he cannot save and who can only add to the toll by the sacrifice of his own life, is entirely consistent with that requirement”.421 Judge Cassese also stated that the decision whether duress can be raised as a defense should not be made beforehand, but the judge should decide on a case-by-case basis according to the facts he or she is presented with.422 However, the requirements for duress may be applied especially strictly in the case of murder because the most fundamental human right is the right to life.423 Whenever duress cannot be admitted as a defense, it should nonetheless state a mitigating factor.424 The judges McDonald, Vohrah and Li viewed that duress can only be a mitigating factor in the case of killing innocent civilians.425 It is necessary to point out that there is an important differentiating element between Dražen Erdemović and Dominic Ongwen. While the former was a trained soldier, who joined the army willingly, the latter was forced to become part of a rebel group.426 The reason for the importance of this differentiation is that the situation that led to duress must not have been self-induced in the sense of the coerced person did not bring it upon him- or herself voluntarily.427 As laid out before, Dominic Ongwen faces problems meeting the requirement of proportionality in his defense. The scale of harm he caused while committing his crimes far outweighs the harm he tried to avoid. Even if the judges were to follow the opinion of Judge Cassese and admit duress as a complete defense, the concerned defendant possibly cannot satisfy the strictly applied requirements. Therefore, it may be used as a mitigating factor in sentencing, like the majority view in the Erdemović case suggested in the first place.
420 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, para. 42. 421 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Stephen, para. 67. 422 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, para. 42. 423 See Cassese A., International criminal law (3rd ed., Oxford University press, 2013) pp. 209 – 228 (219). 424 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Li, para. 12; ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Joint Seperate Opinion of Judge McDonald and Judge Vohrah, para. 90. 425 See ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese, para. 12. 426 See Trial International, “Drazen Erdemovic” (09.06.2016)
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5. Conclusion
As shown throughout this thesis the situation of Dominic Ongwen is not a simple one. He was abducted as a 10 year old child and spent years being indoctrinated by a brutal rebel group. These circumstances forced him to commit crimes to survive and changed his identity. Because of the way he became the criminal he is today, some people who knew him during his time within the LRA have the opinion that he should not even be prosecuted. One person points out that he did not have a choice because he was “just an executioner of commands, because he would do what he was commanded to do”428. On the other hand there are also witnesses who report that he was somehow intent on committing crimes and a witness also claimed that the problem was “he would look too eager to do it”429. When deciding about justice, it is critical to take the context and background of Dominic Ongwen’s life into consideration, because becoming the murderer, rapist and slave master he was, was not entirely his decision, as he was formed by his surroundings.430 Studies of child soldiers argue that some children go into “auto-pilot” after a being in captivity for a long period of time and stop thinking about home. Others commit cruel offences because they were told that it would bring them protection or they could gain respect and prestige within the group. The longer children are exposed to this amount of violence the higher the probability that they will have a diminished capacity for morally responsible decisions. There are no conclusive studies which would show the long term effects of children who had to become soldiers and the the effect a long term stay for more than 18 years, like in Dominic Ongwen’s case, has. The problem with Ongwen’s case is, that according to reports he never showed signs of reluctance nor remorse and so never indicated to anyone if he held on to some moral foundation or just obeyed orders. In an interview a witness of the events characterized the eagerness Ongwen showed as some kind of self-preservation in order to leave no doubt about his loyalty and to avoid getting punished.431 However, the ICC Pre-Trial Chamber has dismissed the defense’s argument that Dominic Ongwen’s individual criminal responsibility should be excluded for the entirety of his stay with the LRA of almost 30 years because of his abduction at young age and that he was made a child soldier against his will.432 Dominic Ongwen is a victim-perpetrator, as true as it might be that he started out as a victim of the LRA, he made the decision to rise in rank and bear more responsibility within the organization and he also chose to murder, rape and enslave instead of choosing to escape like many others.433 Because of the brutality that Ongwen subjected his victims to, it makes it harder for him to plead the defense of duress before the ICC in regards to the requirement of acting reasonably and proportionately.434
428 See Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 (178). 429 See Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 (178). 430 See Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 (178 – 181). 431 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008)
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However, until today the decision whether duress amounts to a complete defense or merely states a mitigating factor in sentencing still remains unresolved. The dissenting opinion of Judge Cassese in the appeal of the Erdemović case may offer some guidance, but the majority in that case had decided that it was just a mitigating factor in the case of killing innocent civilians. The ICC Statute does not negate the admissibility for duress in the case of murder.435 It remains to be seen how the ICC Trial Chamber will decide upon this issue in Dominic Ongwen’s case. As pointed out, there will be issues to meet the necessary requirements for duress. Some of his crimes may be justifiable to some degree with duress. However, even if the defense can establish that he acted under threat to life and limb, offences like rape, forcefully taken “wives”, beating them and keeping them confined during pregnancies as well as enslaving women and girls probably lack the criteria of acting reasonably and almost certainly that of proportionality.436 Dominic Ongwen should not be perceived as simply a victim nor simply a perpetrator, as he embodies both. The Pre-Trial Chamber did not take into account his past as a child soldier and just examined his actions as an adult.437 While holding Dominic Ongwen accountable for his crimes, the complexity of his situation should be taken into consideration too.438 It remains to be seen how the ICC Trial Chamber will decide upon the first ever former child soldier standing before it and how this will affect future cases.439
435 See Scaliotti M. „Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 1” (2001), International Criminal Law Review 1, pp. 111 – 172 (157). 436 See ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen, paras. 151, 155. 437 See Drumbl M. A. “Victims who victimize” (2016), London Review of International Law, Vol. 4, Issue 2, pp. 217 – 246 (242). 438 See Justice and Reconciliation Project, “Complicating Victims and Perpetrators in Uganda: On Dominic Ongwen” Field Note 7 (07.2008)
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6. References
Books Allen T., Vlassenroot K. (eds.) The Lord’s Resistance Army myth and reality (Zed books, 2010) Boas G., Bischoff J. and Reid N., Elements of Crimes under International Criminal Law, International Criminal Law Practitioner Library Series Volume 2 (Cambridge University Press, 2008) Brown B. S., Research Handbook on International Criminal Law, (Edward Elgar Publishing Limited, 2011) Cassese A., International criminal law (3rd ed., Oxford University press, 2013) Clapham A., Gaeta P. (eds) The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) Cohn I., Goodwin-Gill G., Child soldiers - The role of children in armed conflict (Clarendon Press, Oxford 1994) Cryer R., Friman H., Robbinson D. and Wilmshurst E., An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014) Dörmann K., Doswald-Beck L. and Kolb R., Elements of War Crimes under the Rome Statute of the International Criminal Court: “Sources and Commentary” (Cambridge University Press, 2003) Klamberg M., Commentary on the law of the International Criminal Court (Torkel Opsahl Academic EPublisher, 2017) Knoops, G.J., Defenses in contemporary international criminal law (2nd ed., Martinus Nijhoff Publishers 2008) La Haye E., War Crimes in internal armed conflicts, (Cambridge University Press, 2008) McDonald G. and Swaak-Goldman O. (eds.), Substantive and Procedural Aspects of International Criminal Law – The Experience of International and National Courts Volume I - Commentary (Kluwer Law International, 2000) Ntoubandi F. Z., Amnesty for Crimes against Humanity under International Law (Martinus Nijhoff Publishers, 2007) Sandoz Y., Swinarski C. and Zimmermann B (eds.) Commentary on the Additional Protocols to the Geneva conventions (Martinus Nijhoff Publishers, 1987) Schabas W.A. and Bernaz N., Routledge Handbook of International Criminal Law (Routledge, 2011 Triffterer O., Commentary on the Rome Statute of International Criminal Court, (3rd ed., Verlag C. H. Beck 2016) Werle G., Principles of international criminal law (3rd ed., Oxford University Press 2014)
Articles Angucia M. “Broken citizenship: formerly abducted children and their social reintegration in northern Uganda”, Groningen 2010 Angucia M. “Child soldiers or war affected children? Why the formerly abducted children of northern Uganda are not child soldiers”, Intervention 2014, Vol. 12, No. 3 Baines E.K. “Complex political perpetrators: reflections on Dominic Ongwen” (2009), Journal of Modern African Studies, 47 (2), pp. 163-191 Boon K., “Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent” (2001), Columbia Human Rights Law Review, Vol. 32:625, pp. 626 – 675 Drumbl M. A. “Victims who victimize” (2016), London Review of International Law, Vol. 4, Issue 2, pp. 217 – 246
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Gekker E. “Rape, Sexual Slavery, and Forced Marriage at the International Criminal Court: How Katanga utilizes a Ten-Year_Old rule but overlooks new Jurisprudence” (2014), 25 Hastings Women’s Law Journal, pp. 105 – 134 Gilbert J. “Justice not revenge: the international criminal court and the “grounds to exclude criminal responsibility”: defences or negation of criminality?” (2006), The international Journal of Human Rights, 10 (2), pp. 143-160 Markovic M., „Vessels of Reproduction: Forced Pregnancy and the ICC“ (2007), Michigan State Journal of International Law, Vol. 16:439, pp. 439 – 458 Moffett L., “Navigating Complex Identities of Victim-Perpetrators in Reparation Mechanisms” (11.09.2014), Queen’s University Belfast Law Research Paper No. 13 Oosterveld V., “Sexual Slavery and the International Criminal Court: Advancing International Law” (2004), Michigan Journal of International Law, Vol. 25, Issue 3, pp. 605 – 651 Robinson D., “Defining “Crimes against Humanity” at the Rome Conference” (January 1999), American Journal of International Law, Vol. 93(1), pp. 43 – 57 Scaliotti M. „Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 1” (2001), International Criminal Law Review 1, pp. 111 – 172
Law/Treaties Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10.12.1984, Article 1 (1), UNTS Vol. 1465, No. 24841 Convention on the Rights of the Child, 20.11.1989, UNTS Vol 1577, No. 27513 Geneva Convention relative to the protection of civilian persons in time of war, 12.08.1949, 75 UNTS 287, No. 973 International Criminal Court, Elements of Crimes (2013) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 25.05.2000 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), 08.06.1977 UNTS Vol. 1125, No. 17512 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II), 08.06.1977 UNTS Vol. 1125, No. 17513 Rome Statute of the International Criminal Court, 01.07.2002, UNTS Vol. 2178, No. 38544 (ICC Statute or Rome Statute) The Paris Principles – The principles and guidelines on children associated with armed forces or armed groups (February 2007)
Cases ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Cassese ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Stephen ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Separate and Dissenting Opinion of Judge Li ICTY, Appeals Chamber, Prosecutor v. Dražen Erdemović, 07.10.1997, (Case No. IT-96-22-A), Joint Separate Opinion of Judge McDonald and Judge Vohrah ICTY, Trial Chamber, Prosecutor v. Dražen Erdemović, 05.03.1998, (Case No. IT-96-22-Tbis), Sentencing Judgement
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ICTY Trial Chamber, Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Šantić, 14.01.2000, IT-95-16-T, Judgement ICTY Trial Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 22.02.2001, IT-96-23-T & IT-96-23/1-T, Judgement ICTY Appeals Chamber, Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, 12.06.2002, IT-96-23 & IT-96-23/1-A, Judgement ICTY Trial Chamber, Prosecutor v. Miroslav Kvočka, Mlado Radić, Zoran Žigić, Dragoljub Prcać, 02.11.2001, IT-98-30/1-T, Judgement ICTY Trial Chamber, Prosecutor v. Mladen Naletilić and Vinko Martinović, 31.03.2003, IT-98-34- T, Judgement ICTY Appeals Chamber, Prosecutor v. Mladen Naletilić and Vinko Martinović, 03.05.2006, IT-98- 34-A, Judgement ICTR Appeals Chamber, Sylvestre Gacumbitsi v. Prosecutor, 07.07.2006, ICTR-2001-64-A, Judgement Special Court for Sierra Leone, Trial Chamber II, Prosecutor Against Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (AFRC case), 20.06.2007, SCSL-2004-16-T, Judgement Special Court for Sierra Leone, Appeals Chamber, Prosecutor Against Alex Tamba Brima, Brima Bazzy Kamara, Santigie Borbor Kanu (AFRC case), 22.02.2008, SCSL-2004-16-A, Judgement ICC Pre-Trial Chamber I, The Prosecutor v. Thomas Lubanga Dylio, 29.01.2007, ICC-01/04- 01/06, Decision on the confirmation of charges ICC, Office of the Prosecutor, The Case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04- 01/06, Opening Statement ICC Trial Chamber II, The Prosecutor v. Germain Katanga, 07.03.2014, ICC-01/04-01/07, Judgment ICC Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, 21.03.2016, ICC-01/05- 01/08, Judgement ICC Trial Chamber VI, The Prosecutor v. Bosco Ntaganda, 04.01.2017, ICC-01/04-02/06, Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9 ICC, Pre-Trial Chamber II, The Prosecutor v. Dominic Ongwen, 23.03.2016, ICC-02/04-01/15, Decision on the confirmation of charges against Dominic Ongwen ICC Transcripts of Confirmation of charges in the case of The Prosecutor v. Dominic Ongwen - ICC-02/04-01/15 (21.01.2016)
Websites BBC News, “Joseph Kony - child kidnapper, warlord, 'prophet'” (27.07.2018)
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ICRC, IHL Database Customary IHL, “Rule 47. Attacks against Persons Hors de Combat”
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