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Punitive models of justice are founded upon the rationale that “when an individual harms society by violating its rule in some normatively unallowable way the scales of justice are out of balance, and sanction against the individual restores this balance” Western criminal justice systems have incorporated this approach by empowering the State to enforce prohibitions on certain conduct through the introduction of criminal proceedings between the State and the offender (with the goal of incarceration). However, punitive justice does not limit itself to punishment (through the imposition of sentences), it also places emphasis on the concept of deterrence. The latter concept is based on the premise that punishing individuals who break the law will ‘deter’ others from engaging in similar conduct, and consequently, preventing ‘harm to potential victims.’ These models of punitive justice which are embedded in domestic legal frameworks also form the foundation upon which international criminal justice systems (i.e., international tribunals, courts and other mechanisms) are built. As identified by David Koller, the “…predominant justifications of international criminal law rely essentially on the two basic paradigms, familiar from domestic criminal law, of retribution and deterrence.” However, this post seeks to explore the point of departure between domestic and international criminal law, namely, victims. Historically, punitive justice has made a clear distinction between victims who are perceived as ‘pure and ideal’ and perpetrators who are ‘unadulterated and ugly.’ Yet, in the context of international criminal law these notions become much more complex and multifaceted.
The first section of this post engages with existing scholarship surrounding ‘victims who victimise’ in the international criminal law context. In particular, the argument that traditional conceptions of justice fail to appreciate that in the context of mass atrocities victims ‘may be imperfect’ and perpetrators ‘may be tragic.’ The second section seeks to continue the discussion by examining the application of punitive models of justice (more specifically, individual criminal responsibility) in cases involving current and former child soldiers, i.e., where the defendant is both victim and perpetrator. This issue will be examined in the context of the trial of Dominic Ongwen at the International Criminal Court (ICC). The third section seeks to answer another question which arises in this context, should the age of criminal responsibility be lowered in order to facilitate the prosecution of child soldiers? Finally, reflections made throughout this post will be drawn together to assess whether the punitive justice approach is the most effective in cases involving ‘victims who victimize’, where the line between perpetrator and victim is blurred.
Traditional Adversarial Criminal Justice
Traditionally, Western criminal justice systems (i.e., adversarial legal systems) have made a clear-cut distinction between two key parties in proceedings, perpetrator and victim. Legal processes within these systems seek to deliver justice whilst striking a balance between the rights of the perpetrator(s) and those of the victim(s). Victims’ expectations of the adversarial process include participating in the trial (i.e., being able to tell their story), hoping the perpetrator will be found guilty and punished, and receiving reparations. However, legal scholars criticize the adversarial legal system for its treatment of victims in proceedings which often fail to achieve the desired balance or meet any of the aforementioned expectations. In practice, individuals and/or groups are often relegated to the sidelines, with their role limited to witness testimony (if required).
International criminal law is primarily concerned with the violation of norms by individuals and the consequent imposition of penal sanctions by a state. A clear indication of the attempt to replicate adversarial legal processes on an international level, within international courts and tribunals. The latter mechanisms came into fruition as a response to the state of devastation in the wake of events in the Former Yugoslavia, Rwanda and Sierra Leone, amongst others. Like their domestic criminal counterparts, international judicial mechanisms, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), lacked a ‘victim-centric’ approach. For example, the practice and procedures of the ICTY meant there were no legal representatives for victims, no victim participation, and only minimal reparation. It was not until the creation of the world’s first permanent international criminal court that victims were recognised as having a right, through their legal representatives, to actively participate in proceedings and express their opinion. However, despite these advancements, the replication of western criminal justice at an international level has failed to give due regard the imperfect status of victim and perpetrator in the context of mass atrocities. Rather, international criminal law retains the distinction between “…guilty or not-guilty, persecuted or persecutor, abused or abuser, right or wrong, powerful or powerless.” Thus, the need to reconsider established preconceptions and norms in international criminal law arises, especially in relation to child soldiers.
International Criminal Justice and Child Soldiers
Presently, the Rome Statute details the regime of criminal responsibility implemented at the ICC. Article 25 deals with individual criminal responsibility whilst Article 28 addresses the responsibility of commanders and other superiors. However, neither of these sections reflect on the prospect of responsibility in cases where the defendant is both perpetrator and victim. Though there are provisions criminalizing the conscription and use of child soldiers there is a distinct absence in international criminal law, or public international law more generally, of legal instruments, principles or defences which specifically address the criminal responsibility of current or former child soldiers. This is in spite of the prevalence of the conscription and use of child soldiers in conflict, some of which ultimately rise up to the ranks of commanders and other leadership positions. In fact, according to the United Nations Annual Report on Children and Armed Conflict, during the period of 2012-2017, 29,128 cases of child recruitment were confirmed, a figure which is on the rise.
Having examined a range of conflicts, legal scholar Mark Drumbl found that children who become actively involved in conflict as soldiers in armed forces typically do so in one of following ways, “…(1) they are abducted, or conscripted through coercion or severe threats, (2) they come forward, whether independently or through recruitment programs, and are in turn enlisted by commanders; or (3) they are born into forces or groups.” Building upon this, there are a number of additional pressures which are not always cited but which often result in children becoming soldiers. For example, families may volunteer their children to (or children may join themselves) an armed group due to hunger and poverty. The reason being that membership of such groups often guarantees access to food, medical attention and clothing.  Additionally, children may join in order to protect themselves and their families from other armed factions (including the government) by acquiring weapons and forming part of a ‘new supplemental family unit.’
The interest of legal practitioners and scholars in the topic of child soldiers has been reignited in light of the trial of Dominic Ongwen at the ICC. Sadly his case is not an isolated one, between 30,000-60,000 children were recruited by the Lord’s Resistance Army (LRA) and forced to commit acts such as murder, sexual violence and mutilation. Child soldiers were an important resource for the LRA because, as indicated by the Common Legal Representative for victims at the pre-trial hearing, they are easily influenced. In the words of one the former child soldiers testifying at Ongwen’s trial, “…you never refuse to kill, otherwise they will kill you.” Studies focused on the trauma experienced by child soldiers found,
…exposure to violent crime as a child increases the likelihood of developing Post-Traumatic Stress Disorder (“PTSD”), depression, anxiety, and other mood disorders, which may contribute to future violence. Exposure to violence may also impair individuals’ ideological development and ability to develop a functioning sense of morality.
Ongwen was abducted by the LRA between the age of 9 and 14, and forced to partake in the war in Uganda. Over the course of approximately 25 years, Ongwen demonstrated his loyalty and was promoted to the ranks of commander. His status as a complex perpetrator has given rise to a number of interesting questions, such as, given his forced participation at a young age, whether he was “brainwashed” as a result of the years spent in the LRA and if so, whether he can truly be held accountable for his alleged crimes. Additionally, commentators have drawn attention to the absence of justice for Ongwen as a victim and child solider. These considerations continue to be relevant as the number of children conscripted continues to grow, with statistics showing a 159% rise since 2012.
Ongwen was alleged to have committed war crimes of; attack 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. In addition to crimes against humanity of murder and attempted murder; torture; sexual slavery; rape; enslavement; forced marriage as an inhumane act; persecution; and other inhumane acts. He was charged pursuant to Articles 25(3)(a) (direct perpetration, indirect perpetration and indirect co-perpetration), 25(3)(b) (ordering), 25(3)(d)(i) and (ii) and 28(a) (command responsibility). On 6 May 2021, he was found guilty by the Trial Chamber of 61 counts of crimes against humanity and war crimes. Consequently, he is the first individual to be found guilty of the same war crimes of which he was a victim. This case illustrates that in the current international criminal law regime, the status of former child soldiers’ as victim appears to cease upon entering adulthood.
Statements made by Ongwen provide psychological insight into how he perceives himself, and perhaps how other former child soldiers see themselves. Put simply, Ongwen perceives himself as a victim, stating that the “LRA committed atrocities in northern Uganda, and I am one of the people against whom the LRA committed atrocities… but it is not me personally who is the LRA.” This case emphasizes the difficultly in pinpointing the moment an individual transitions from a child (a victim) into a perpetrator. In addition, to raising the question of whether these two phases can truly be separated at all. As summarized by Windell Nortje from the South African-German Centre for Transnational Criminal Justice, “…it is almost as if he was caught in two minds at times, one resembling that of an innocent little boy, while the other resembled a mind of a rebel committed to the hideous ideologies of the LRA.”
The theory that Ongwen was caught in two minds aligns with the divergent narratives emerging from the testimony of 592 victims who were authorized to participate in the trial. Their testimonies detailed the numerous cruel and heinous acts committed by Ongwen, ranging from abduction of children and supervising their military training, to beatings and sexual violence. In contrast, there was also testimony which described Ongwen as showing empathy towards his victims. Ongwen is said to have released child soldiers (putting his position/rank at risk) and allowed one of his wives, Florence Ayot, to escape.  Additionally, he is reported to have said that ‘…civilians should not be attacked because they pose no threat to the LRA.’
Ultimately, at trial, the ICC sought to achieve the goals of punitive justice, i.e., punishment and deterrence. Though there is the need for accountability, Ongwen’s trial highlights the shortcomings of this approach in relation to cases where the defendant is both perpetrator and victim. There are no legal frameworks or principles, or specific defences available to Ongwen, which require the court to take into consideration his past experiences as a child soldier and their impact on his conduct as an adult.
Lowering the Minimum Age of Criminal Responsibility
Examining individual criminal responsibility requires discussion of the age for criminal liability, particularly in light of the continuously increasing amount of child soldiers. The case study of Uganda, concerning Dominic Ongwen and the LRA is one of many, for example, it is reported that in Liberia, children (from the age of nine) have been ordered commit acts such as murder, rape and torture. Additionally, Colombia is estimated to have between 5,000 to 14,000 child soldiers engaging in similar conduct. In the past, international criminal justice mechanisms have taken differing approaches to the minimum age of criminal responsibility. Both the ICTY and ICTR did not specify a minimum age, whereas the Special Court for Sierra Leone (SCSL) asserted its jurisdiction over individuals who were between the ages of fifteen and eighteen when the alleged crimes were committed. The ICC opted for its own approach and limited its jurisdiction to individuals who were eighteen years or older on the date the alleged crimes were committed. Reflecting on this, scholars have pointed out that ironically, the ICC does not prohibit the conscription or use of child soldiers over the age of 15, yet it still excludes them from its jurisdiction. This is a consequence of delegates of the Rome Conference avoiding having to negotiate the age of criminal responsibility, given that it varied significantly in each domestic jurisdiction. However, the growth in literature which advocates for a victim-centric model of punitive justice (i.e. criminal punishment) raises the question of whether the age of criminal responsibility should be lowered in order to facilitate prosecution of child soldiers.
Advocates of the punitive approach argue that child soldiers must be prosecuted as they are committing the very crimes that the Rome Statute was created to address, namely, the ‘most serious crimes of international concern.’ Further, lowering the age of criminal responsibility does not mean that a minor would have the same experience in the system as an adult. Interestingly, this question is not unique to ICC prosecutions, it was also raised in the context of the SCSL. Former United Nations Secretary General Kofi Annan advocated for the prosecution of minors, aged 15 years and above, for war crimes. Though Annan acknowledged the moral dilemma that attaches to such a proposition, he argued that child soldiers were involved in executions and mutilations which were ‘horrific’ and that many were not just foot soldiers, but commanders. Annan noted that ‘most, if not all, of these children have been subjected to a process of psychological and physical abuse and duress which has transformed them from victims to perpetrators.’
It has been argued that in the context of victims who victimize the ‘…quest for justice cannot be secondary to the rehabilitation and forgiveness of a child soldier.’ Criminal justice mechanisms are not able to strike a balance between these objectives, which raises the question of whether punitive justice is the most effective approach, especially in light of the emergence of restorative justice. Those in favour of the latter approach contend that mechanisms such as truth commissions and ‘cultural cleansing rites’ have been much more effective in providing the required support and remedies to both victims and perpetrators. In addition, the Coalition to Stop the Use of Child Soldiers opposes the prosecution of children stating that they were often given intoxicating substances in order to desensitize them to violence. Further arguments rejecting this proposal have a practical basis, for example, the argument that expanding the court’s jurisdiction to include minors would have a negative impact on the ICC’s already constrained budget and lack of resources. Additionally, it has been reaffirmed that victims would not be left without redress or accountability as the exclusion of these cases does not preclude the prospect of domestic prosecutions.
Is Restorative Justice a Better Alternative?
Academics in favour of punitive justice argue that utilizing a perpetrator’s background as a mitigating factor or defence serves to undermine the primary goals of criminal law. Renowned criminal law scholar, Professor Paul Robinson argues that,
…mitigated sentencing based on an individual’s background will weaken criminal law’s credibility and ability to deliver what is perceived as a just punishment by going against society’s intuitions of justice; it will undermine deterrence because future criminals may believe that they will be relieved of the consequences of their crime; and it will potentially defeat the purpose of incapacitating dangerous individuals.’
A perception which is, to some extent, shared in the opening statement of former Prosecutor Fatou Bensouda at Ongwen’s trial. The prosecutor stated that,
…One aspect of this case is the fact that not only is Ongwen alleged to be the perpetrator of these crimes, he was also a victim…He himself, therefore, must have gone through the trauma of separation from his family, brutalization by his captors and initiation into the violence of the LRA way of life… The evidence of many of the child victims in this case could be, in other circumstances, the story of the accused himself…The reality is that cruel men can do kind things and kind men can be cruel…But having suffered victimization in the past is not a justification, nor an excuse to victimize others…And the focus of the ICC’s criminal process is not on the goodness or badness of the accused person, but on the criminal acts which he or she has committed.
Thus, it is evident that punitive justice models and judicial mechanisms are not structured nor equipped to deal with the complexities associated with victims who victimize. The prosecutor’s statement highlights the shortcomings of the punitive system, for example, the distinction between cruel and kind men is the type of clear-cut distinction which is typical of this approach. Such distinctions fail to acknowledge the outcome of studies regarding the physical and psychological impacts on child soldiers, such as those found in the Community-Implemented Trauma Therapy for Former Child Soldiers in Northern Uganda. This particular study found that a child soldier’s exposure to violence such as “…forced participation in atrocities, sexual violence, and the loss of loved ones, leaves affected children and young adults vulnerable to behavioural problems as well as psychological and physical impairment.”
The aforementioned statements may represent the preferred approach within domestic criminal justice systems, however, adopting this rationale on an international level is problematic for a number of reasons. For example, it fails to account for specificities of mass atrocities, the fragility of societies emerging from conflict and the psychological complexities associated with victims who victimize, amongst other factors. To summarize, “the shapeshifting of humanity in times of violent cataclysm … does not mix or play well with criminal law’s absolutes.” Additionally, despite increased victim participation, the ability of punitive models of justice to deliver reparations is much more limited. For example, victims must submit applications demonstrating some form of connection with the alleged crimes before being permitted to participate. In the Prosecutor v William Semoei Ruto and Joshua Arap Sang, which was ultimately terminated, Judge Fremer reaffirmed the existence of limitations on access to reparations. Noting that whilst victims must be disappointed, criminal courts can only remedy harm if the alleged conduct is proven to have taken place and if the perpetrator is found guilty. Thus, there arises the need to consider alternative models of justice such as transitional justice, or more specifically, restorative justice.
Transitional justice is an area which has been rapidly developing since the resurgence of mass atrocities throughout the 1990s. Its materialisation is strongly linked to a ‘pragmatic shift’ in the perception of criminal justice and its ability to contribute to a durable peace process within post-conflict societies. The objectives of transitional justice include, providing acknowledgement and reparation; facilitating rehabilitation; providing protection to victims; establishing respect for human rights; creating a historical record; and formulating a durable peace process. With this in mind, restorative justice is a branch of transitional justice which aims to “defend the concept of social harmony, which however cannot be fully restored in post-conflict societies by convicting and sentencing the guilty only.” Consequently, restorative models seek alternatives to the sentencing norms and techniques adopted by traditional punitive justice.
Restorative justice has developed into a consolidated practice which focuses on assisting societies emerging from a legacy of human rights abuses to come to terms with their past. Often the mandates of restorative justice mechanisms extend beyond those of punitive justice, with criminal accountability being one of many considerations. The case study of Rwanda is an example in which punitive justice and restorative justice operated simultaneously, but where the latter was more successful. A newspaper regarded as Rwanda’s ‘leading daily’ reflected on the Rwandan perspective of the ICTR stating that,
there were many instances where the ICTR failed Rwandans, humiliated witnesses and ignored its victims… That was what triggered Gacaca courts…The country came out stronger after Gacaca as it was not punitive justice but more of restorative justice that has fostered reconciliation. That should have been the ICTR’s goal in the first place.
Restorative justice mechanisms seek to bring together all stakeholders whilst ensuring that victims retain a central role. The shift to restorative as opposed to punitive justice does not necessarily serve to disadvantage or dismiss the victims (or relatives of the victims) of the child soldier’s conduct. Nor does the acknowledgment of former child soldiers as victims absolve their responsibility for the crimes perpetrated. Rather, the alleged crimes are examined in the context of the relevant conflict and the perpetrators past experiences. Restorative models seek to strike a balance between the need for accountability of former child soldiers and the need for programmes to assist with the physical and psychological trauma they have experienced. They provide a forum in which victims, relatives of victims and other affected individuals can, if they wish to, share how their lives were impacted by the violence. Furthermore, such models take into account that child soldiers who were unable “…to escape their militia and be rehabilitated are subject to the same trauma as those who are rescued and treated as victims.” Studies examining the transition process in Cambodia, Somalia, Haiti, Bosnia, Kosovo, Sierra Leone, Liberia, Afghanistan and Iraq have shown that criminal accountability is not a high priority for societies (and victims) emerging from conflict. The priorities are establishing a safe and secure environment (preventing recidivism, protecting civilians and property, reintegration programmes) and establishing and/or reinstating the rule of law (protecting human rights and building effective institutions). In addition to social well-being (ensuring access to food, water, medical assistance and other necessities), a stable democracy (again, institution building and guarantees of non-recurrence) and a sustainable economy (enacting policy, rebuilding infrastructure and reparation programmes).
There are already a number of initiatives in relation to former child soldiers such as those introduced by the current UN Special Representative of the Secretary-General for Children and Armed Conflict, Virginia Gamba. Ms. Gamba recognises the shortcomings of punitive justice and has advocated for alternative approaches to justice in relation to child soldiers. Gamba stated that the success of reintegration programmes for child soldiers heavily relies on the commitment and support of the international community. An example of such restorative justice projects in practice includes the partnering between Gamba’s office and the UNICEF Global Coalition for Reintegration of Former Child Soldiers. These programmes mark significant positive developments in relation to former child soldiers, however, they are often targeted at children, teenagers and young adults. Consequently, there remains an absence of programmes specifically tailored to former child soldiers who have now entered adulthood, especially those who have continued to commit atrocities as an adult. There is a need for initiatives which consider the ongoing psychological and physical impacts which stem from the experiences of former child soldiers.
The Way Forward
There are well-established norms in international criminal law, and public international law more generally, which provide for the protection of child soldiers (i.e., prohibition of the use of child soldiers and the minimum legal age for recruitment). However, there are no frameworks detailing how international criminal law should effectively deal with the complexities which arise in relation to victims who victimize (in this case, child soldiers). Presently, punitive justice does not take into account the trauma experienced by former child soldiers when determining criminal responsibility of the perpetrator (whether as a mitigating factor or as a defence). In the case of Dominic Ongwen, the Prosecutor made it clear that the court was not there to address any physical, emotional or psychological damage he suffered. Rather, the sole focus was placed on his conduct as an adult.
This post does not seek absolution for former child soldiers, rather, it criticises the punitive justice approach for presuming that the effects of child soldiering cease upon entering adulthood. Especially when research shows that these two phases of life cannot be easily separated in the context of atrocities. With this in mind, it advocates for the implementation of restorative justice models. Though restorative justice is not without its shortcomings, it still remains the preferred approach in this context. The reason being, that on one hand restorative justice affirms that a perpetrator’s past does not justify future conduct, however, on the other it goes a step further than punitive justice. Restorative approaches take into consideration the complexities associated with post-conflict societies and in doing so, seeks out other means of accountability. A process which involves consultation with all stakeholders to ensure victims are not forgotten or neglected. Ultimately, restorative justice should be utilised in the context of child soldiers as it caters for “…the needs, expectations and experiences of conflict participants – the perpetrators, victims, survivors and other members of society directly affected by violence…” in a more effective manner.
Siân Lord serves as an editor of the Blog and Weekly News Recap at the Platform for Peace and Humanity. She is a legal researcher and certified lawyer with experience in human rights as well as criminal law and litigation, at both the domestic and international level. She currently works as a legal researcher and assistant for research institutes and NGOs on a wide range of projects, ranging from examining the governance of memory laws in Europe to examining the underrepresentation of the male gender in the context of conflict-related sexual violence in Africa. She holds an Advanced Master’s in Public International Law (specialisation: International Criminal Law) cum laude from Leiden University, the Netherlands. In addition to a Bachelor of Laws (Class I Honours) and Bachelor of Government and International Relations from Griffith University, Australia. Previously, she has worked at the Office of the Director of Public Prosecutions where she assisted with domestic cases and at Global Rights Compliance where she assisted the trial team with cases before the United Nations International Residual Mechanism for Criminal Tribunals and European Court of Human Rights.
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