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A former child soldier prosecuted at the International Criminal Court

It’s easy to assume that only ‘evil’ people commit atrocity. And it’s equally easy to imagine the victims as ‘good’ or ‘innocent’. But the reality is far more complex. Many perpetrators are tragic. They may begin as victims. Victims, too, may victimize others. These victims are imperfect. Some victims survive – and some even thrive – because of harm they inflict.

The lines among victims and perpetrators tend to blur in the cataclysm of atrocity. What, then, to say about judgment, condemnation, punishment, and mercy?

When someone is harmed by another victim, how should that someone speak of the harm? Does the tragic nature of the perpetrator dull the pain? Or might it worsen it?

In recent research, I explore how to approach the pain that victims inflict upon themselves and on other victims. I begin historically with one of the most insidious aspects of the Nazi Final Solution – the deployment of members of the persecuted group to further genocide: Jewish Kapos (heads of barracks and work groups) in the concentration camps and Jewish police and councils in the ghettos. I end with the current work of the International Criminal Court (ICC).

The ICC entered into force in 2002 to prosecute those enemies of humankind who bear the greatest responsibility for the most serious crimes of concern to us all. The ICC channels the outrage of the international community. Its point is retribution and, also, deterrence; its goal is to end impunity.

The ICC – in its solemnity, set in The Hague, the epicenter of global justice – is about to further its mandate by prosecuting a former child soldier from northern Uganda, now a 40-something-year-old man, named Dominic Ongwen.

Ongwen was abducted into the rebel Lord’s Resistance Army (LRA) at the age of nine. Headed then and now by Joseph Kony, the LRA – largely depleted by Uganda’s policy to amnesty its membership – is implicated in decades of systemic atrocities in northern Uganda. Ongwen was abducted by LRA fighters while walking home from school. Unlike some of his other classmates, he was not wiry or wily enough to avoid the kidnappers.

The ICC channels the outrage of the international community. Its point is retribution and, also, deterrence; its goal is to end impunity.

Ongwen was brutalized. He came of age in the LRA. He however proved – in his own words – to be ‘a very sharp recruit’. He demonstrated his wiriness and wiliness. He rose through the ranks. He became a Brigadier Commander. While it is unclear exactly what ‘rank’ means in the LRA, what is clear is that Ongwen was frequently promoted. He was feared. He lorded over others.

Kony’s relationship with Ongwen was edgy. Kony was suspicious of Ongwen. And Ongwen feared for his own life. Ongwen wanted out of the LRA. Kony suspected as much. Kony had Ongwen imprisoned and tortured in Sudan. Ongwen escaped barefoot in January 2015. He surrendered to US Special Forces and was promptly transferred to the ICC.

In March 2016, an ICC Pre-Trial Chamber confirmed charges against Ongwen. He is the only LRA accused in custody. The rest are dead or – like Kony – at large. The charges against Ongwen are many in number and horrific in content, including recently added allegations of gruesome sexual and gender-based violence.

Ongwen is also charged with crimes that he himself suffered: unlawful recruitment of children into armed groups and cruel treatment (both war crimes), and enslavement as a crime against humanity. On this note, then, Ongwen is unique among ICC defendants.

Does it matter that Ongwen’s point of entry into the LRA began as an abducted tormented boy? Should it? It is relevant that Ongwen came of age in the LRA? That Kony nearly executed him on several occasions, but didn’t only because Ongwen’s sister was among Kony’s favorite wives?

Criminal trials are angular and austere. They play an adversarial zero-sum game. Prosecutors seek to convict. The Defense pushes to acquit. Both sides thereby present contrasting narratives. It is their job to do so.

Great pain can be caused by morally ambiguous people.

So the Defense emphasizes that Ongwen should be entitled to a full duress defense that would void the charges against him. For the defense, then, Ongwen is forever a child in mind, spirit, and agency. His victims have to accept that, regardless of how bitter a pill that is to swallow.

For the Prosecution, Ongwen seems never to have been a child, let alone a child socialized in the LRA. He is taken up as an adult, since the ICC only has jurisdiction over adults, as if he were born as an adult. On 6 September 2016, the ICC Chief Prosecutor submitted her Pre-Trial Brief, which details all the charges and Ongwen’s position of authority. This 285 page long document makes no mention whatsoever of Ongwen’s background. While it extensively unpacks hardships endured by child soldiers in Ongwen’s brigade, and the brutally coercive nature of the LRA, it is totally (and ironically) silent with regards to the brutalities and coercion that Ongwen himself had endured.

So far, the Prosecution has had the better of it. The Pre-Trial Chamber rejected the duress arguments at the confirmation of charges hearing. The Pre-Trial Chamber elided Ongwen’s status as former child soldier. It’s as if he ceded that status, or forfeited it. Ongwen’s victimhood is contingent. He lost it because of what he went on to do.

To be sure, these arguments will reappear, under different evidentiary standards and for different purposes (including sentencing), at trial.

The accuracy of the historical record is not well-served by these dueling essentialisms. Any comfort they achieve is anodyne. Many child soldiers demonstrate mercy and kindness. Other child soldiers can do wretched things as children. Former child soldiers can do horrific things as adults. And adults who do horrific things may begin on that path when they are abducted and tortured as a shy child. Reductionist zero-sum games do not do justice to the realities of child soldiering.

Great pain can be caused by morally ambiguous people.

Some Kapos – much lower down on the chain of authority than Ongwen – caused great pain. Some of the most powerful literature of the Holocaust – the work of Primo Levi, Imre Kertéesz, and Viktor Frankl – is animated by stories of connivance, betrayal, and injury as inflicted by and among the prisoners. Israel prosecuted forty Kapos as collaborators in the 1950s and 1960s. These trials however struggled to narrate these stories. Criminal law lacked the vocabulary or finesse. To acquit was as unfulfilling, and incomplete, as to convict and, certainly, as to sentence.

So instead of casting Ongwen as monstrously evil – the prosecutor’s impetus – or as innocently helpless – the defense’s impulse – another narrative goal could be to uncork the conundrum that mass atrocity involves the handiwork of people who are neither too purposeful not too purposeless. Without this handiwork, after all, atrocity would never become massive in scope or reach.

Is a criminal trial up to this challenge?

Featured image credit: Courtroom One Gavel. Public Domain via Flickr.

Recent Comments

  1. Monday Collins

    From my point of viewI truely believe that, the reason why we take our children to school is because we need to see them learn, learning depends on the environment you are exposed too. Ongwen was abducted as a kid at a very tender age, went through all the hardsship as child soldier, he was exposed to violent and hostile community, was mentored to kill and destroy. What do you expect from such a person who went through all those. People shouldn’t take the advantage that they had the opportunity to sleep under a roofed house, went to good schools, had good parents to guide but Ongwen did not have that privilege and they expect him to be as them. That is very impossible. Ongwen is a victim and he had to do what he did because that’s all he was taught and that was all in knew about because he grew up seeing it, learning it and doing it. Instead the Government of Uganda needs to appear before ICC to answer why they did not protect Ongwen.

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