By: Luca Mattei

Introduction: a man named Dominic Ongwen

It was the 5th of January 2015 when a wanted man of Ugandan nationality turned himself after a long hiding. He surrendered to a US military base, located in the Central African Republic. His name was Dominic Ongwen and its name was already notorious well beyond the national borders of Uganda. Namely, he was known for its commanding role inside the Lord Resistance Army (LRA): one of the deemed most violent terrorist organization in all the African continent:

The LRA was founded in 1986 by its ongoing supreme leader Joseph Kony, as an opposition force to the government of Uganda led by Yuweri Museveni. Since then, the paramilitary organisation has been the perpetrator of brutal crimes against the civilian population. Notably, among the most contested of these acts, there is the kidnapping of children from their family, with the purpose to turn them into faithful soldiers through torture and indoctrination. Until his escape, Dominic Ongwen covered a central position in this terrorist scheme. As referred by prosecutor Benjamin Gumpert to the International Criminal Court (ICC), ‘Dominic Ongwen was one of the most senior commanders in the LRA’. 

Today, more than a decade later, Joseph Kony is still on the run, while Dominic Ongwen decided to turn himself to international forces, triggering his prosecution before the ICC – which received jurisdiction on from Museveni in 2003. However, despite the large amount of evidence against the accused, the case has proven to be controversial since the onset. The problem lied in the fact that Dominic Ongwen was not part of LRA by his own volition, as he was abducted in 1988 when he was still 9 years old. Only after years of violent indoctrination in the values of the LRA, he become an asset for the group; eventually rising among the ranks and becoming commander of the LRA Sinia Brigade. 

The proceeding before the ICC focused on this latter period, when Ongwen committed, directly and indirectly, crimes against the civilian population as a senior LRA officer. At the time Ongwen was not a minor anymore (around 21 years old), therefore formally he was legally a fully liable adult. 

But really an entire childhood spent inside a violent terrorist organisation was meaningless in the eyes of the law? This question proved to be troubling for the sitting judges at the ICC. Ongwen’s trial was extremely important for setting a precedent on the legal treatment of child soldiers who have become adults. 

The definition of ‘duress’

During the trial before the ICC it was invoked by the defence counsel the s.c. ‘duress’, which is understood as an exception to the general regime of criminal responsibility. Already in the eighteenth-century William Blackstone defined it in his ‘Commentaries on the Laws of England’ as ‘threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanors’.

As we can see indoctrination is not taken into consideration in the latter definition. Nonetheless, the question is far from settled and there are multiple interpretations. For instance, the French Code provides that ‘a person is not criminally liable who acted under the influence of a force or constraint which he could not resist’. This provision is larger in scope than the one provided by Blackstone and seems focused on the free will of the perpetrator.

Instead, in the German Code states that ‘if someone commits a wrongful act in order to avoid an imminent, otherwise unavoidable danger to life, limb, or liberty, either to himself or to a dependent or someone closely connected with him, the actor commits the act without culpability’. This definition doesn’t mention free will, while it is evident a balance between – using the words of Blackstone – ‘the menace’ and the wrongful act. 

The element of ‘duress’ has been analysed also by the International Military Tribunal (IMT), in the aftermath of World War II, where it was detached by the similar defence of the ‘hierarchical order’. The issue was then debated again fifty years later, by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Erdemovic case, which concerned a footman soldier that had killed 70 civilians during the siege of Srebrenica. Notably, in the latter case the defence counsel raised ‘duress’ before the ICTY, as Erdemovic was threatened with death by his superior if he was not to comply with the orders.

Nonetheless, after a debate between the sitting judges, Erdemovic was convicted for his deeds – with the notable dissenting opinion of Judge Cassese. The judgement was based on consequentialist considerations. Namely, that Erdemovic should not be acquitted since this could provide a defence to future perpetrators of international crimes and even harming the deterrence of international rules. 

Even Cassese did not entirely disagree with the outcome of the majority, concluding that a general prohibition on resorting to ‘duress’ can be established in the case of the killing of innocent civilians. But with the notable exception in the case that ‘it is highly probable, if not certain’ that the person under ‘duress’ is fated to die along with his victims if he does commit the crime, which will be carried out in any event.

In the end, the argument of ‘duress’ was not accepted for Erdemovic by the ICTY. However, the dissenting opinion of Cassese proved to be hugely influential, years later, on the future definition of ‘duress’ enshrined in the Rome Statute, the treaty establishing the ICC. 

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The International Criminal Court and Dominic Ongwen

We finally go back to the case of Ongwen, an ex-child soldier who has been indoctrinated for a good part of his life. The reasoning of the ICC was bound by Art. 31(1d) of the Rome Statute, which states that for ‘duress’ is necessary a threat of ‘imminent death or of continuing or imminent serious bodily harm against that person or another person’.

After hearing hundreds of witnesses and wiretaps the ICC established that this requirement of ‘duress’ was not met. The element of ‘imminence’, inside the first criteria, has been interpreted restrictively as otherwise, the ICC feared it could ‘provide a blanket immunity to members of criminal organisations which have brutal systems of ensuring discipline’. The specific conditions in which Ongwen grew was taken into consideration by the Court, but in a limited way. 

Indeed, from a legal perspective, this outcome is legitimate. The ICC used ‘duress’ on the basis of what was established plainly in the Rome Statute. However, some uncertainties remain. As we have shown in this brief exposition, ‘duress’ is not homogenously justified in legal practice. Rather, we have witnessed that it is a rather relativistic, often rhetorical, concept. 

This is even more controversial in a case concerning the actions committed by an abducted child. Ongwen did commit horrific crimes, but at the same time international law recognize undisputedly the particular vulnerability of younglings and the prohibition of their conscription under a certain age. Does international law really not recognize methods of coercion – such as a lengthy indoctrination – outside of the most obvious ones such as the threat of death? 

In the end the discomfort of the Court in setting the final stone on this case was reflected in the final judgement. For 61 charges of crimes against humanity and war crimes, the ICC sentenced Dominic Ongwen to 25 years of imprisonment. A rather light penalty given the heavy accusatory load. Perhaps, showing that the peculiar history of the defendant could not deflect responsibility, but was taken instead as an extenuating circumstance.