Case I: Situation in Uganda (The Prosecutor v. Dominic Ongwen)
School: Nova Southeastern University
Role: Judge
Paper: Preliminary Opinion
A former ex-commander of the Sinia Brigade of the Lord’s Resistance Army, Dominic Ongwen is the first individual to be both an alleged perpetrator and victim of the same crime. As a member of the LRA, Ongwen was responsible for attacks planned against refugee camps in Uganda across the span of three years, as well as the Makombo Massacre; a raid which resulted in the death of 350 civilians and 250 abductions. Although the Rome Statute of the International Criminal Court does not try an individual under the age of 18 for any crimes committed, these charges can be revisited once said individual is an adult. Therefore, Ongwen can be held liable for actions he was responsible for as a child soldier. Currently, he is charged with 70 counts of war crimes and crimes against humanity due to his attacks against the civilian population, murder and attempted murder, rape, sexual slavery, torture, cruel treatment, outrages upon personal dignity, destruction of property, pillaging, the conscription and use of children under the age of 15 to participate actively in hostilities, enslavement, forced marriage and persecution.
As outlined in Article 21(3) of the Rome Statute, the application of international law to the case must be synonymous with internationally recognized human rights, without any adverse distinction. Consequentially, Dominic Ongwen has the right to a fair trial. Ongwen is allegedly accountable under Article 7 and Article 8 of the Rome Statute, which further classify crimes against humanity and war crimes respectively. Article 4(3)(c) of the Additional Protocol II of the Additional Protocols to the Four Geneva Conventions of 1949 (1977) state that “children who have not attained the age of fifteen years shall neither be recruited in the armed forces of groups, not allowed to take part in hostilities”. Regionally, the African Charter on the Rights and Welfare of the Child was not adopted by the African Union until 1999; Ongwen was abducted as a child soldier in 1990. As a result, Uganda was not necessarily responsible for apprehending the LRA in recruiting him. Ongwen is not only responsible as a soldier, but also a commander of a branch of the LRA, under Article 28(a) of the Rome Statute.
Ongwen has a unique case, in that he is both a victim and perpetrator of the aforementioned crimes. Abducted at the age of 10, he is eligible for reparation as stated in Article 75(1); according to Article 77(2) of the Additional Protocols to the Four Geneva Conventions of 1949 (1977), he was below the age of 15, which would legitimize his enlistment in the LRA. Furthermore, as stated in Article 31(1)(d) of the Rome Statute, Ongwen may not be criminally responsible prior to his role as a commander, due to the fact that his actions were committed during circumstances beyond his control and in order to appease a threat of imminent death. However, Article 25(3)(b) holds Ongwen accountable for raids he organized as a commander for the LRA during the periods of 2002 to 2005 and December of 2009. The Court should order a term of life imprisonment, taking into consideration the grave nature of the defendant’s 70 counts of crimes against humanity and war crimes. As a member of the LRA that influenced the crimes being committed, his sentence would be justified by Article 77(1)(b), due to his deliberate intent to cause harm to civilians.
Case II: ICC v. Bosco Ntaganda (Democratic Republic of the Congo)
School: Nova Southeastern University
Role: Judge
Paper: Preliminary Opinion
Bosco Ntaganda was reputable as an armed militant and rebel in the eastern Democratic Republic of the Congo since 1990. As a Deputy Chief of Staff and Commander of Operations of the Patriotic Forces for the Liberation of the Congo, he was affiliated with two armed conflicts in Ituri; firstly against civilians that were perceived as non-Hema and the second against opposing rebel groups. Ntaganda was also a representative in the Congolese government that went on to serve in the nation’s army before rebelling once again. The Rome Statute of the International Criminal Court states that the Court is only eligible to prosecute crimes following the ratification of the Statute in a country. Therefore, Ntaganda is not legally responsible for any alleged crimes committed prior to April 11, 2002; i.e. when the Democratic Republic of the Congo formally adopted the Rome Statute.
Primarily, Ntaganda is eligible for an exclusion of criminal responsibility - as outlined in Article 31(1)(c) of the Rome Statute - due to the fact that actions committed during conflicts between the UPC/FPLC and other rebel groups in 2002 may have been out of self-defense. Furthermore, Article 25(3)(e) states that “in respect to the crime of genocide”, Ntaganda would be held individually liable for his crimes. This can be applicable to the systematic attack against non-Hema civilians. The defendant was also issued a warrant which claimed that he was responsible for using his authoritarian position for the recruitment of child soldiers amongst other crimes, an act which would be considered his responsibility according to Article 28(a)(i). However, it is important to consider whether or not there was intent behind Ntaganda’s crimes; i.e. whether, despite his role in the formation or retention of these rebel groups, he was aware of the members’ actions.
Article 8 of the Rome Statute serves as justification for the argument that Ntaganda was responsible for instituting “grave breaches of the Geneva Conventions” in his plans or policies as a rebel. In accordance with statements from the Prosecution, Article 8(2)(e)(vi) allocates jurisdiction to the ICC over the crimes that Ntaganda is charged with, regardless of the fact that Common Article 3 of the Geneva Conventions was violated. Due to the cooperation between the ICC and the Democratic Republic of the Congo, Article 75(5) can be applied, in that the State Party will ensure that reparations are made to the Court, as well as respective victims of the aforementioned crimes. Ntaganda was also allegedly liable for the systematic killings of non-Hema civilians would be classified as genocide, under Article 33(2) of the Rome Statute. As a result, he should be sentenced to a term of life imprisonment. Previous trials held in response to genocide, such as in Nuremberg or Constantinople, result in a death sentence issued to the defendant. Article 77(1)(b) allows for a reflective judgment, in that the death penalty is not applicable under the Rome Statute. Life imprisonment can also be considered most applicable, as Ntaganda can be justifiably found individually guilty for the aforementioned crimes.
Case III: ICC v. Laurent Gbagbo and Charles Blé Goudé
School: Nova Southeastern University
Role: Victim’s Advocate
Paper: Legal Brief