Navigating The Victim/Perpetrator Complex At The International Criminal Court: The Case Of Dominic Ongwen

The trial of former child soldier Dominic Ongwen, which began on Tuesday December 6th at the International Criminal Court (ICC), has raised existential questions about the actions of humankind in times of war and suffering. Ongwen’s case is particularly complex as it is the first to charge an individual for crimes in which he himself was subjected to. This historic case reflects the contradictions of an inherently adversarial, international criminal justice system. At its’ heart lies competing narratives and discourses of the innocent victim and the guilty perpetrator. The perpetuation of this binary at the ICC simplifies the conflict in Central and East Africa, diminishes the complexity and suffering of child soldiers, and undermines the voice of survivors demanding justice for their communities who have experienced the traumas of violence. This case demands an answer to a morally troubling, yet necessary question: how do we deal with individuals who occupy the spaces of both victimhood and criminality under international law?

The Office of the Prosecutor (OTP) has downplayed the significance of Ongwen’s years as a child soldier in its opening statements to the Court. In its demand for a guilty verdict, the OTP has emphasized Ongwen’s identity as a perpetrator through his agency and willingness as an adult to commit heinous atrocities and climb the ranks of the Lord’s Resistance Army (LRA), whilst others in his position have attempted to escape. The OTP’s position is not exceptional. It reflects the demands of a retributive justice mechanism such as the ICC, that; through mere instrumental rationality, posits defendants as either innocent or guilty. Unfortunately, this conceptualisation of human responsibility and agency leaves little space for individuals who blur these boundaries.

The Life of Dominic Ongwen

Dominic Ongwen was abducted by the LRA at the age of 10, while walking home from school. The LRA, lead by Joseph Kony, has operated in Uganda since its formation in 1988. It aims to overthrow the ruling Museveni government and establish a new Ugandan order based on the Ten Commandments of Christianity. While today, LRA activity has waned, at the peak of its influence, the rebel movement terrorized and recruited from northern Uganda, and soon expanded to other parts of the country and beyond, to the Democratic Republic of the Congo (DRC), what is now South Sudan, and the Central African Republic. The LRA is renowned for its brutality against civilian populations. They have abducted thousands of children, pillaged and destroyed villages, tortured and mutilated civilians, and used rape as a weapon of war. Under this structure, Ongwen was abducted and recruited as a child soldier. He was raised under the tutelage of Vincent Otti, the latter becoming second in command of the LRA. While other children tried to flee or successfully escaped, Ongwen followed the cruel orders of the LRA to survive. As an adult, he became an admired and feared commander who committed serious atrocities against civilian populations upon the orders of Kony, but also of his own whim. However, after the death of Otti at the behest of Kony, Ongwen grew disenchanted with the omnipresent leader, fled the LRA, and was soon captured in the Central African Republic. He was transferred to the ICC in The Hague in 2015.

Ongwen has been charged with 70 counts of crimes against humanity and war crimes, including attacks against civilian populations, torture, pillaging, the conscription and use of child soldiers, enslavement, murder, and sexual slavery.

Justice Delivered?

Ongwen’s case reflects the deep complexity of victim/perpetrator identities under international criminal law. Erin Baines, from the Liu Institute for Global Issues at the University of British Columbia, conceptualizes individuals such as Ongwen as “complex political perpetrators” – individuals “who occupy extremely marginal spaces in settings of chronic crisis, and who use violence as an expression of political agency”. While academic scholarship surrounding Ongwen and the dual identities of child soldiers has mapped the reality of a victim/perpetrator complex, international criminal law, in its traditional, punitive form, has yet to accept this nuanced understanding. Baines continues: “On one hand, advocates seek to protect child soldiers from prosecution; while on the other, they work to prosecute those who enslave children and force them to fight in rebel groups. That some children, like Ongwen, grow up to be both victims and oppressors is a dilemma unaddressed in the field of transitional justice”. It seems, that while the ICC is a court for the victims, it has failed to represent the victimhood of complex perpetrators like Ongwen.

Furthermore, the ICC’s stance on child soldiers in Ongwen’s case is contradictory to previous cases in the Court. For example, in the trial against Thomas Lubanga, a war criminal from the DRC, former Chief Prosecutor Luis Moreno-Ocampo emphasized the lifelong traumatisation former child soldiers are destined to experience. He inextricably loops the identities of victim and perpetrator together, when he says: “They cannot forget the beatings they suffered; they cannot forget the terror they felt and the terror they inflicted; they cannot forget the sounds of their machine guns; they cannot forget that they killed; they cannot forget that they raped and that they were raped”. While Ocampo’s words says much about the suffering child soldiers will continue to endure, the OTP’s case against Ongwen fails to recognize the atrocities that he was subjected to as a child, and how this has influenced his actions within the LRA. At the heart of this issue, the ICC has failed to acknowledge the diverse and challenging narratives of war and conflict. The victims of Ongwen’s crimes deserve justice, but Ongwen, as a victim himself, also deserves recognition. On the one hand, his case at the ICC sets an example to all war criminals that their actions are inexcusable and accountable to the law. On the other hand, it also sets the precedent that an individual can be charged with crimes under which he was also a victim of. Under the current, adversarial model of international criminal law, that orders individuals according to victim and perpetrator, innocent and guilty, Ongwen represents a moral contradiction.

Transcending the Victim/Perpetrator Complex

Ongwen’s trial provides an opportunity for the international community to grant greater attention to the plight of child soldiers and communities affected by conflict. At a bare minimum, Ongwen’s dual identity should incite further research into the phenomenon of child soldiering, the structural causes of conflict, and the means of prevention and rehabilitation. Education and development initiatives delivered by both the Ugandan government and aid agencies must continue to work in conflict-affected communities in order to address issues such as poverty and direct violence that feed the cycle of war and child soldier recruitment. While prevention measures are a key priority, reintegration and societal reconciliation for former child soldiers are necessary steps to improve the livelihoods of individuals who occupy the spaces of both victim and perpetrator. It is also imperative that the victims of war crimes are included within this process and receive justice for the horrors they have endured.

Furthermore, the ICC can lead by example and allow a dialogue within the Court that accepts both the victimhood of Ongwen, but also his agency as an adult to commit war crimes and atrocities. Importantly, Ongwen must stand trial for his crimes. But his indictment should come alongside a number of transitional justice measures, at the local and national levels, that address the needs of communities affected by the horrors of war. In Uganda, traditional justice measures such as mato oput, a local restorative-based practice, have been effective in promoting forgiveness and acknowledgment of collective trauma.

Dominic Ongwen’s crimes are horrible reminders of the devastation of conflict. Recognizing such atrocities under the international criminal law is an imperative first step to condemn and discourage crimes against humanity. However, Ongwen sets a precedent before the ICC, as both a victim and perpetrator of such crimes. He is not, however, an aberration of humankind. History has shown, from the Holocaust and beyond, that humanity is capable of committing atrocities, resisting orders, and blurring the line between victim and perpetrator. We must acknowledge the reality of this dual identity if we are to understand what drives people to commit atrocities, and how we can prevent such horrors from occurring.

Caitlin Biddolph