CYIL vol. 12 (2021)

CYIL 12 (2021) TOWARD STRENGTHENING ACCOUNTABILITY FOR CRIMES AGAINST CHILDREN … exclusion of these crimes was the reason why the Lubanga case was criticized by civil society. 120 The narrow scope of charges were also met with considerable criticism throughout the trial by representatives of victims, court observers, and scholars, although the main reason for the selectiveness by the ICC prosecutor seems to relate to the system of complementarity. 121 As a consequence, those child soldiers who were victims of enslavement, sexual slavery, forced pregnancy, and other crimes were not afforded adequate consideration and redress. 122 On the other hand, it is important that in weighing the gravity of crimes, the ICC treated the fact that victims were children as an aggravating factor. 123 Dominic Ongwen (Uganda) In a controversial trial against a former child soldier and the commander of the Lord’s Resistance Army (LRA), the accused was charged with the conscription and use of children under the age of 15, and taking sustained action “to assert his commanding position, including by the maintenance of a ruthless disciplinary system, abduction of children to replenish his forces, and the distribution of female abductees to his subordinates as so-called ‘wives.’” 124 For this reasons, the Prosecutor also charged the accused with other inhumane acts within the meaning of Article 7(1)(k) of the Rome Statute in the form of forced marriage. 125 Children are believed to have been abducted and forcibly “recruited” as fighters, porters, and sex slaves to serve the LRA and to contribute to attacks against the Ugandan army and civilian communities. In 2021, the Court found the accused guilty for 61 crimes comprising crimes against humanity and war crimes and sentenced him to 25 years of imprisonment. 126 The image of the accused as a victim of the brutality of the LRA as well as a perpetrator of that brutality, and the dilemma of attributing criminal responsibility to a person who grew up in the rebels’ ranks, has gained prominent place in international news and formed a major part of the defense’s argument against the confirmation of charges. 127 In its judgment, the Trial Chamber IX stated that “the fact of having been (or being) a victim of a crime does not constitute, in and of itself, a justification of any sort for the commission of similar or other crimes.” 128 Although Ongwen’s own experience of abduction and suffering was taken into account as mitigating circumstance, it was not always seen favorably in the eyes of the ICC judges. 129 120 Human Rights Watch, “DR Congo: ICC Charges Raise Concern. Joint letter to the Chief Prosecutor of the International Criminal Court,” 31 July 2006, https://www.hrw.org/news/2006/07/31/dr-congo-icc-charges- raise-concern (Accessed on 28 May 2021). 121 Roman Graf, “The International Criminal Court and Child Soldiers. An Appraisal of the Lubanga Judgment,” Journal of International Criminal Justice 10, no. 4 (2012): p. 946. 122 CÉCILE Aptel, “Child Slaves and Child Brides,” Journal of International Criminal Justice 14, no. 2 (2016): pp. 15–316. 123 Prosecutor v. Thomas Lubanga Dyilo. “ Decision on Sentence pursuant to Article 76 of the Statute.” ICC-01/04- 01/06, 10 July 2012, paras. 36-44. 124 Prosecutor v. Dominic Ongwen. ”Decision on the confirmation of charges against Dominic Ongwen.” ICC- 02/04-01/15, 23 March 2016, para. 59. 125 Ibid. , paras. 87–95. 126 International Criminal Court, “Ongwen Case,” https://www.icc-cpi.int/uganda/ongwen. 127 BRANCH, Adam. “Dominic Ongwen on Trial: The ICC’s African Dilemmas.” International Journal of Transitional Justice 11, no. 1 (2017): 38. 128 Prosecutor v. Dominic Ongwen . ‘Trial Judgment.’ ICC-02/04-01/15, 4 February 2021, para. 2672. 129 Prosecutor v. Dominic Ongwen . ‘Sentence.’ ICC-02/04-01/15, 6 May 2021, para. 370.

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