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Ongwen blog symposium: Ongwen Unsworn

April 16, 2021

Kjell Anderson is an assistant professor of law, and the director of the Master of Human Rights program at the University of Manitoba. He is an interdisciplinary scholar and has published widely on mass atrocities, transitional justice, international crimes, and human rights. His books include: Researching Perpetrators of Genocide (co-edited by Erin Jessee, University of Wisconsin Press, 2020), Perpetrating Genocide (Routledge, 2018), and a forthcoming book on the life and trial of Dominic Ongwen (Rutgers University Press).

Do we know Dominic Ongwen? His life has been explored forensically by scores of international lawyers, investigators, and analysts, and 179 witnesses have testified in his trial over the course of 234 hearings (see here). Yet, we have very rarely heard Ongwen speak. He gave a radio interview with a community radio station in the Central African Republic in January 2015 – immediately prior to being handed over the ICC – where he denounced Joseph Kony and celebrated his short-lived freedom: “I am a free man despite the ICC case against me.” Once the trial began in 2016, Ongwen’s voice has been almost entirely absent, and when he does speak, it is usually unwelcome within the regimented framework of court procedure. Ongwen’s unsworn statement in the sentencing hearing yesterday (April 15, 2021) presented the opportunity for Ongwen to address the court and public directly, and to tell his story. In this post I will consider Ongwen’s unsworn statement: his words and his silences.

Dominic Ongwen stands in court, removes his mask and speaks for almost two hours  – far beyond the 45 minutes allocated by the Defence. Ongwen is calm, confident, and still convinced of his own innocence. On the first day of his trial, December 6, 2016, Ongwen proclaimed “I’m not the LRA” – a sentiment that he held onto still at the end of his trial (see here, pp. 17-18). Ongwen sees the LRA as something that was done to him, rather than by him.

He begins his statement by proclaiming that he had not understood much of the proceedings against him (“I only understood 40-60%”) because “I was not feeling well… From the onset I did not consider myself a human because what I was going through, the people in the [ICC] Detention Centre know what I was going through at that time…”* He refers at many points in his statement to his current struggles with mental illness and the positive improvements he has seen through his treatment program within the Detention Centre (he specifically cites Eye Movement Desensitization and Reprocessing, or EMDR – a common therapeutic intervention for Post-Traumatic Stress Disorder).

Ongwen recounts his early days in the LRA in horrific detail; after his first attempt to escape, he was forced to kill several people. The individuals were tied to a tree, and he participated unwillingly in their disembowelment, finally being forced to eat beans mixed with the blood of the victims. “I will go to the grave with that image in my mind,” he says. Later in his statement, Ongwen reiterates that he is still haunted by this incident (and others) saying: “My suffering has made me drunk…most times I am unconscious, I have lost sleep…I cannot distinguish between day and night because I am awake throughout.” He continues, “I get hallucinations, I hear gunshots, I see dead bodies, I see soldiers I killed, I see soldiers I slaughtered, I believe this image will not go anywhere until my death.”

The Defence maintains, of course, that Ongwen had mental illnesses both at the time of the commission of the crimes, and today. While the Chamber rejected this assertion in the judgment, it may still be available as a mitigating factor in sentencing. The Chamber’s mental health expert, Joop T. de Jong, found that Ongwen was fit to stand trial, even while he agreed that Ongwen suffered from mental illness today.

Ongwen speaks at length about his induction into the LRA. He affirms his belief  in Kony’s spiritual powers. For example, he recounts being given a “stone bomb;” he prayed over the stone, and “when I went to the battlefield” the stone “went off like a bomb.” This practice of using stone bombs was inherited from Alice Lakwena’s Holy Spirit Movement. Ongwen, called the ignition of his ‘stone bomb’ “the first miracle that I saw in the LRA.” He directly invokes the spirits as a cause for his perpetration (as the Defence does in relation to duress), saying “If I could defy the spirits…I would have stopped all these things, but because I did not have the capacity, I did not have the strength, all these things happened.”

Ongwen also attributes this lack of agency to the coercive power exercised by the LRA over its members and expresses his appreciation of his newfound freedom (even though he is imprisoned): “when I was in the LRA, that was the real prison. At least I am happy I’m here. One hundred times more free, if I compare my life in the LRA. There is no jail in the world that is tougher than the LRA.”  He looked up to and feared Joseph Kony as a boy, remembering “I grew up…knowing there was no one more powerful in this world,” and recalling that Kony once carried him across a river. Yet, he also argues that “whatever Kony has done, is now being blamed on me.” He also claims he disagreed with Kony over an order to kill a group of captives (government intermediaries), including his future lawyer – Krispus Ayena Odongo.

The most problematic portion of Ongwen’s statement, from a Defence perspective, was his discussion of his “wives.” He claims, “I am not the one responsible for marrying these women” and argues that his “wives” either chose him, that he saved them from potentially worse fates (more abusive commanders), or that Kony assigned the wives to him, without his consent. He cites the fact of the wives’ survival as evidence of his relative kindness “If I did not take care of them, why are they waiting for me now?” This is a misleading framing of the current situation with the wives, some of whom have maintained relationships with him for various reasons, and others who have denounced the marriages in court and cut ties. He also maintains (against the wives’ testimony, other prosecution evidence, and the Chamber’s conclusions) that “I did not subject them to forced sex.” He does eventually express limited remorse for the forced marriages and other crimes, saying “when I returned, I apologized…for what had happened in northern Uganda…I asked for forgiveness for people I was ordered to kill, for people who were forced to be my wife…but I cannot ask for forgiveness for each of things brought against me…”

Ongwen’s expressions of remorse in his statement are tepid. He says, for example, “I am remorseful…they [victims of war] really suffered” but “there is nothing else we can do…the people who have been killed, can never come back, the things that have been destroyed, can never come back. Including my own family…” It is clear that Ongwen primarily situates himself as a victim. He shifts to the passive voice when describing acts of violence (“people who have been killed” rather than “people that I killed”) to further distance himself from his role in the violence. This is quite typical of perpetrators of atrocities, indeed of anyone accused of committing acts seen as morally wrongful (a tendency I describe in my book Perpetrating Genocide). While it does not say anything about Ongwen’s culpability, it does demonstrate a desire to separate self from act.

Ongwen addresses his own survival in the harsh conditions within the LRA through a narrative of (divine) suffering: “what [suffering] happened to me did not even happen to Jesus Christ…I went through a lot…carrying extraordinary loads, walking long distances…hunger, thirst…climbing very high mountains, clearing very thick bush, beatings, internal imprisonment…” He also claims that he was spared execution for his escape attempts because he was deemed to be one of “Silindi’s soldiers,” meaning that he was under the perceived protection of Sili Silindi – one of Kony’s most prominent and enduring spirits. He says he was shot eleven times while in the LRA and that “these eleven bullets would have killed an elephant.”  He manifests a kind of survivor’s guilt in saying that he asked himself (during his time in the LRA): “How come I’m still alive…what’s the meaning of this?  How am I special? …. when I went to battle, I went with the intention of being killed. Most of the battles I went to, I went with anger, I went with resentment. I was unlucky to not get killed…” He once again casts his survival in spiritual terms, recounting, “I was attacked by six lions and I survived. I talked to the lions and the lions did not harm me.”

When Ongwen fled from the LRA in December 2014, he expected to be given amnesty (despite the ICC warrant of arrest) but instead “…the world snatched me with a rope around my neck…was it good for me to come out, or would I be better off staying the bush?” He feels singled out unfairly, “I should not be held as a scapegoat,” particularly given that other senior commanders, and the people who abducted him, are not in court. He asks “when did these international rules come into effect?…People who protect other people, why did they not protect me too?” This is a fair question, which highlights the role of moral luck in Ongwen’s arrival at the ICC.

Ongwen fails to fully engage with his own personal responsibility for the choices he made in adulthood. It’s overly simplistic to say that moral agency as an adult is separable from extreme abuses suffered in childhood, yet Ongwen’s denial is hard to sustain. In his statement, he argues that “I am not responsible for killing” (even while he mentions “slaughtering soldiers”), while affirming “there are other people who did worse things than I did.” This latter claim is, in fact, always true in mass atrocities; as a theoretical exercise we can say that, if clear hierarchies of moral responsibility can be established, there is always someone who did worse things than you (unless you are the mythical single individual at the apex of a pyramid of relative evils).

But can we, in the end, empathize with what Ongwen is telling us about his ultimately tragic life?  And what of the tragedies he has inflicted? Empathetic identification is ultimately the goal of such statements, beyond offering offenders an opportunity to give their perspective. Ongwen tells us that “all these things exhausted me” and that he wants to “be a better human being.” He seeks to deny the assumptions people make about him and tells us “the way my parents were killed was brutal” and that “I feel as though God has forgotten me. I should have been born on a different planet. This planet is full of bad things…” He describes himself as “like a dead person,” yet he says both he and the victims are “all human persons.” The use of this phrase “a human person” (dano adana) has a particular resonance in Acholi (as Opiyo Oloya notes in his book Child to Soldier) – it serves to emphasize humanity as a value of human belonging. Ongwen’s use of this phrase is likely a response not just to the cultural alienation experienced by many former LRA, like himself, but a broader alienation from the human community as one condemned for crimes against humanity

Ongwen’s unsworn statement is a struggle to reconnect; he tells us implausibly that “you might see me on TV some day advocating for human rights.” Yet, this attempt at reconnection is burdened by a failure to fully understand the wrongfulness of his acts. This disconnect is cultivated by the LRA among its fighters, by creating communities which break down social ties and endorse atrocious violence. Among former LRA, there often seems to be a struggle to fully shed the LRA worldview, even years after leaving the group (see here). Indeed, the preservation of this worldview serves to explain acts committed in the LRA context, which are otherwise incomprehensible. Ongwen asks us, and perhaps himself, “what is Ongwen? Is he human or not human?” As we make sense of Ongwen’s acts, perhaps we should offer not only condemnation, but a path towards belonging again.

* All quotes from Ongwen’s unsworn statement are the author’s transcription from the recording of the statement (the court’s transcript has not yet been publicly released), see: https://www.youtube.com/watch?v=YaybHDhE4Cc&ab_channel=IntlCriminalCourt.

Ongwen blog symposium: Culture as evidence and the construction of (un)certainty in the Dominic Ongwen trial

April 15, 2021

Adina-Loredana Nistor is a PhD Candidate in international criminal law at the University of Groningen. Her research explores how cultural differences impact international criminal trials throughout their proceedings, with a particular focus on the International Criminal Court (the ICC). Adina worked as a Visiting Professional at the ICC, Investigative Analysis Section (IAS) during April-September 2019. She holds a master’s degree in International Crimes and Criminology from VU Amsterdam and an MA in American Culture Studies from Warsaw University. She previously worked as Researcher at Erasmus University Rotterdam and as Senior Research Associate with the Public International Law and Policy Group.

But the bottom line is, look, whom do you believe? (…) So this is really – that’s really a question at the end of the day. (Defence closing statements)

Early on in the Ongwen trial the presiding judge Schmitt acknowledged that “things do not occur without any setting, any cultural, political, social setting and it’s also important for the court to know this” (p.8). And indeed, during the trial a substantial amount of cultural evidence (pertaining to traditions, belief systems, behaviors etc.) was presented by the parties. Such evidentiary material was intertwined with submissions concerning the background of the conflict and Uganda’s history.  In particular, courtroom discussions revolved around Acholi traditions and whether the Lord’s Resistance Army (the LRA) constructed its own distinct subculture (p. 23) and cosmology (p. 216).

Given the specific purpose of a criminal trial – to determine the guilt or innocence of the accused – cultural evidence has been introduced into the courtroom with various purposes and outcomes. On the one hand, there is its (potential) link to specific legal requirements of charged crimes or modes of liability. On the other hand, it might play a role in sentencing and in reparations. Culture can intersect with the law in a myriad of ways. In relation to the trial of Dominic Ongwen, cultural concepts have been predominantly linked to certain charges. For example, the concept of childhood was discussed in relationship to the charge of enlisting and conscripting child soldiers, the concept of marriage in relationship to the charge of forced marriage, and spiritualism in relation to the grounds for excluding criminal responsibility to name just a few. For the purposes of this post, I will focus for now on the concepts of childhood and age and their intersection with spirituality.

Childhood and age

As Tim Kelsall wrote in Culture under Cross-Examination, although “the concept of childhood seems to exist in all human societies, scholars largely agree that the actual meaning of the word differs across cultures.” (p. 151) Given that one of the crimes that Ongwen has been found guilty of is the conscription of children under the age of 15 and their use in hostilities, the Prosecution had to prove that the child soldiers were minors under the age of 15. Given the scarcity of documented proof of age, such as birth certificates, the Prosecution had to come up with additional evidence. And it was primarily witness testimonies which were relied upon. What an in-depth analysis of trial transcripts revealed, however, is that establishing the age of a person at the intersection between what may be considered as universal concepts, such as “childhood” and their applicability in a specific context can be challenging. For example, when one witness was asked what did he mean when he said that children (former abductees) were returning from the bush, he answered: “some of them are children, some of them are very young. You sometimes meet a very young person, a returnee as a very young person and that’s why I use the term “children”. Somebody like Owino is an adult, he’s not a child anymore. Children is a cultural term used in Acholi, because for all the – if I’m older than somebody, whoever is younger than me is referred to as a child.” (p.35) This indicates that beyond finding the equivalent from one language to the other, it is crucial to place the word (child) in the context of its own universe, the local context, otherwise misunderstandings can easily arise.

The Defence on the other hand tried to show that witness assessments of age were wrong, mainly because of inconsistencies and contradictions concerning documentation (p.140) and because the term kadogo or kadoge/kadogi (plural), which was used by the LRA to identify a certain subgroup of people in their army, was defined by various criteria when it came to the age range, which was in fact quite elastic. While a significant number of witnesses assessed that the term referred to child soldiers around the age of 8-12, others have estimated the age at 15 or even a bit beyond that, as some witnesses referred to themselves as being called kadogi at a point in life when they had passed the age of 15. The judges contented that numerous witnesses referred to kadoge as to “children between 13 and 15,” and that Dominic Ongwen had been heard using the word kadogi to refer to children (p. 835) and was aware of the age of the recruits (p.855). Therefore a concept whose defining criteria proved to be very pliable during the trial became a rather fixed category in the judgement. A similar exercise concerning the same concept, but in the context of Congo, found its way into the judgement of Thomas Lubanga.

Age, time and spirituality

The Defence submitted that Ongwen had been himself dislocated from his own culture and its moral fabric at a very early age. In the Closing statement they claimed that for instance regarding the sexual and gender-based crimes the defendant “did not have any idea about sexuality, especially within the cultural aspect of Acholi” (p.47) at the time of his abduction. Expert witnesses similarly discussed the impact of the LRA indoctrination on young individuals and concluded that in most cases, the younger the person, the more malleable they can be to be shaped according to spiritual beliefs, especially if the belief system is rooted in traditions that are already familiar to them.

In the judgement, the Chamber underlined that they found “no evidence indicating that the belief in Joseph Kony’s spiritual powers played a role for Dominic Ongwen, and in fact the evidence of Dominic Ongwen defying Joseph Kony, discussed above, speaks clearly against any such influence.” (p. 933) In relation to the sexual and gender-based crimes, they quoted the testimony of one witness who said “This is – this is something extremely bad and culturally – in Acholi culture raping young girls is extremely bad.” (p. 751)

In the case of Sierra Leone trials for example, where the crime of recruiting and using child soldiers during hostilities was also charged, Tim Kelsall criticized the fact that the trial served as a “predominantly technical exercise in establishing whether or not the defendants had transgressed an international law, instead of a test of whether the defendants knew they had transgressed an international law, let alone a dialogical exercise inquiring first into whether or not a local norm had been infringed.” (p.158) However, in the case of Dominic Ongwen submissions about local culture, practices and diverging views on their meaning were presented and while the judges did not elaborate on the cultural dimension in particular, the selection of statements that made it into the judgement, such as the one quoted above, may be indicative of the fact that such cultural issues were factored into the decision of the chambers.

Similarly, in connection with age, the passage of time and the belief in spirits, the judges weighed in the evidence submitted by the parties and inferred that “there is consistent evidence that for many persons who stayed in the LRA longer their belief followed a pattern: it was stronger in the young, new and impressionable abductees and then subsided and disappeared in those who stayed in the LRA longer” (p. 930) and that “all of this evidence leads the Chamber to the conclusion that LRA members with some experience in the organisation did not generally believe that Joseph Kony possessed spiritual powers.” (p. 933) While these statements refer to the testimonies of specific witnesses in this trial, it remains unclear why broad generalizations that seem to have an overarching effect outside of the courtroom find their way into the judgment.

At the same time, the fact that certain evidence on the issue of spiritualism was deemed of “limited value to the present proceedings” (see pp. 187, 216, 219) can also be seen through the lens of operating in very different domains: the questions asked by the judges differ substantially in their scope and purpose from those of anthropologists for example. The type of questions that are asked require very specific answers which serve the narrow purpose of a criminal trial and anything that cannot be evaluated within the criteria of the Rome Statute is likely to be dismissed.

The judgment and the legal taxonomies

While during the trial itself certain cultural concepts appeared to be fluid, contested or open to interpretation, the judgement has in a way transformed them into legal certainty and legal truth. Concepts of age and childhood have been linked to strict requirements concerning the act of conscription and the use of soldiers under the age of 15 in hostilities. Ultimately, Dominic Ongwen was found guilty of 61 out of the 70 charges he stood accused of. In the self-contained legal universe of the judgement, certain propositions, no matter how ambiguous or contested, became facts. Evidence was presented in order to support or dismantle diverging propositions. In this negotiation between the known and the believed, cultural evidence – that did “not directly underlie” the Chamber’s analysis as to “whether the facts alleged in the charges” have been established – has been dismissed (p.219).

However, the judgement represents only a part of the conclusion of this trial. The sentencing and reparations offer new opportunities for these closed categories to gain new meaning and hierarchy in the system. It remains to be seen whether and how the judges believe that the defendants formative years in the “family” of the LRA constitute a potential mitigation, and whether childhood, age and spirits and the constellation of other concepts in which they are imbedded make their way into their sentence determinations.

In Dominic Ongwen’s ICC judgement the verb to believe can be found in over 70 instances, yet the Chambers have used it sparingly in relation to their own findings, reserving it for assessing the credibility of witness testimonies. The dialectal choices made in such a case are not surprising. From a psycholinguistic approach, the dialogical construction of the legal truth leaves little room for beliefs. In this cognitive process of making order of the reality the verb to believe might end up in contrast with the verb to know in the same way uncertainty can be seen as the opposite of certainty (Mininni et al, p.115).

In the context of a criminal trial, this is more than a dichotomy, it is the tension that spans between doubt and beyond reasonable doubt in relation to the criminal responsibility of the accused. And what can be explored, moving beyond from what has been established in this trial, are the numerous pieces of the puzzle which were considered to not belong to this legal domain, and which can still paint different pictures and reconfigure new (un)certainties.

Ongwen blog symposium: Two Sides of the Same Coin: The ‘child soldier experience’ at the ICC

April 14, 2021

Dr. Brianne McGonigle Leyh is an Associate Professor with the Netherlands Institute of Human Rights (SIM) and Montaigne Centre on Rule of Law at Utrecht University’s School of Law. She is also a Senior Legal Advisor with the Public International Law & Policy Group. Her specializations include human rights law, transitional justice, victims’ rights, and documentation and accountability for serious human rights violations.

Wayne Miller is an LLM student in Public International Law at Utrecht University. His studies have focused on international human rights law, international criminal law, and international humanitarian law. Wayne currently works as a research assistant for Dr. Brianne McGonigle Leyh and previously interned with the Al Hassan Defence team at the International Criminal Court.

On 4 February 2021, Trial Chamber IX (TC IX) of the International Criminal Court (ICC) convicted Dominic Ongwen for 61 of the 70 crimes he was charged with, including crimes against humanity and war crimes. The case has captivated the attention of Court watchers and bloggers in large part because of Ongwen’s traumatic past (see here, here and here). The Lord’s Resistance Army (LRA), which is an armed rebel movement operating in Northern Uganda since the 1980s, abducted him around the age of 9 years old. As the years passed, he rose in the ranks to become a senior commander and was found to be responsible for serious crimes. Now in his 40s, Ongwen faces sentencing for his crimes later this week.

Numerous scholars and commentators, including Raphael Lorenzo Aguiling Pangalangan (yes, Judge Pangalangan’s son), have written on the difficult question of holding accountable the child soldier, who may later have climbed in the ranks and perpetrated crimes. Indeed, this was one of the key issues in the case. Now, the big question is how the Court will deal with his past abduction and experience as a child soldier not for the purposes of criminal accountability but for purposes of sentencing.

Following the commencement of trial resulting in a conviction the Trial Chamber, pursuant to Article 78(1) of the Rome Statute, must determine the appropriate sentence. In accordance with Rule 145 of the Rules of Procedure and Evidence, the Chamber is obliged to take into account mitigating and aggravating factors. Mitigating factors include, inter alia, substantially diminished mental capacity, duress, efforts of the convicted individual to compensate victims, and cooperation with the Court. Aggravating factors include, inter alia, abuse of power or official capacity, particularly defenceless victims and multiple victims. If the sentencing briefs by the Parties and Victim Representatives are any indication, there may be widespread disagreement on the bench.

The victims, who submitted a joint brief, have recommended a life sentence. They argue that there are no mitigating circumstances that would apply and fear that upon release he could rejoin the LRA and reoffend. In contrast with the Victims’ Representatives and its own position at trial, the Prosecution, in its submission, adopted a more nuanced approach and recommended 20 years. While focusing on the heinous nature of his crimes, the Prosecution acknowledges the ‘genuinely complex’ nature of his case due to his abduction, conscription, and indoctrination, which likely has had devasting and lasting consequences (para 152). It seems to recognize the difficulty of balancing his history on the one hand and his crimes on the other—far more so than it seemed to argue at trial. Finally, the Defence, referring to Ongwen as a ‘mentally disabled defendant’ (para 2 and 38), suggested in its submission a sentence of time served or a maximum of 10 years, combined with the traditional restorative practice of Mato Oput.

But how will the Trial Judges respond to the vastly different assessments of how sentencing should play out? This post looks at how the ICC has dealt with child soldiering effects in the past. It is probably unsurprising that the various Chambers at the Court have adopted two different approaches when it comes to understanding the child soldier experience. An unqualified approach for former child soldiers not standing trial, and a qualified approach for former child soldiers on trial. This differentiation may be warranted when it comes to accountability determinations (though this is debatable) but it certainly doesn’t seem logical for purposes of sentencing. Yet, since the Court has already found in its trial judgment that Ongwen’s victimization and trauma did not impact upon his mental state (for purposes of the defences raised), it may play a minimal role in mitigation determinations. We argue that this would be a mistake.

As previously noted by Mark Drumbl, the child soldier experience is both complex and poorly understood by criminal law institutions. Too often, it becomes a simplistic binary construction between competing narratives depicting either the faultless victim or the evil perpetrator. His critique is certainly evident in the ways in which the various Chambers at the ICC have approached the child soldier experience. Concerning the effects of the child soldier experience on former child soldiers who are victims not standing trial, the Court has taken an incredibly strong and unqualified approach.

In Lubanga, the Trial Chamber stressed in its decision on sentencing, that child soldiers were exposed to an ‘environment of violence and fear’ (para 38). They referenced expert reports and scholarly writings emphasizing that the child soldier experience ‘can hamper children’s healthy development and their ability to function fully even once the violence has ceased’ (para 39). They detailed the many negative psychological and social effects, noting that the effects likely have irreparable consequences and significant impact on the former child soldier’s ability to make choices and/or live a life without violence (para 41). They also found that the effects of the child soldier experience are continuous and even generational (para 41). In other words, the negative effects do not stop when the individual reaches adulthood. Rather, they are continuously felt by the affected person and even passed down. The consequence of this extreme traumatic past is that the victim continuously struggles in the present, and, at least to some extent, may not have full agency over decision making as a result.

Conversely, in Ongwen, TC IX did not adopt this approach to the child soldier experience. In the trial judgment, TC IX gave little (legal) consideration to the fact that Ongwen had himself been severely victimized from the age of 9. On the matter of exclusion of criminal responsibility, the Defence had argued exclusion based on mental disease or defect, which TC IX dismissed. The Judges found that Ongwen did not suffer from a mental disease or defect at the time of the conduct relevant under the charges (paras 2450, 2580). The Chamber’s conclusion was largely a result of it finding the Defence experts’ evidence and testimony unreliable. In contrast, it found the Prosecution experts’ rebuttal of these effects ‘impressive’ (para 2478). This is surprising given the fact that these experts did not conduct face-to-face clinical interviews with Ongwen but, rather, relied on second-hand material to make their determinations. It also discounts the expert testimony provided in Lubanga.

TC IX similarly dismissed the arguments of duress. While it recognized that Ongwen had been abducted at a young age by the LRA, the Chamber noted that he committed the relevant crimes when he was an adult. Affording him full control and agency over his decision making. And that, in any case, 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 – beyond the potential relevance of the underlying facts to the grounds excluding criminal responsibility expressly regulated under the Statute (para 2672). The Chamber endorsed this finding considering several factors, including among other things, Ongwen’s status in the LRA hierarchy (para 2581). The Court’s analysis of the child soldier experience in the judgment was therefore more qualified than in Lubanga. It really only recognized and considered the effects of the child soldier experience up until he was 18 years of age—and even then quite minimally. Ongwen, therefore, could not rely on mental disease or defect (or duress and severe psychological impact) stemming from the unqualified approach applied to the child soldier experience in Lubanga.

But, again, assessing responsibility is one thing and assessing punishment is another. Will the TC IX  use the same qualified approach when considering mitigation for sentencing? No one really knows but there are some signs pointing to an affirmative response. The Chamber, through a Single Judge, recently rejected the Defence’s request for amicus intervention on sentencing, stating that in light of the evidence already on record, including the personal background and individual circumstances of Ongwen, it has sufficient evidence and submissions to determine the appropriate sentence (para 4). This decision indicates, to some degree, that the Chamber may stick to the qualified approach it adopted in the trial judgment. It is therefore quite possible the Chamber will not take into account Ongwen’s child soldier experience in its sentencing considerations to any great extent given its current qualified, or conditional, position.

Whether courts should even consider the effects of child soldiering as a mitigating factor is an unsettled debate. Some have suggested that consideration for mitigation should only be tolerated in extreme cases, which would require some type of qualitative and quantitative assessment. Others have suggested that the child soldier and former child soldier status should be a default mitigating factor. One of the major concerns is that a lesser sentence even for former child soldiers would negate the level of culpability, accountability, and other criminal law goals such as deterrence, rehabilitation, and incapacitation. Indeed, these are some of the positions argued by the Victims’ Representatives.Other objections to mitigation may concern the gravity of crimes committed, but since mitigation of sentence does not necessarily impact blame and accountability, the notion of international justice does not seem to oppose mitigating punishment for former child soldiers who are in essence themselves inevitable products of the very crimes international criminal justice seeks to prevent and punish. This is particularly the case when its own case law recognized the severe negative impacts it has on an individual’s mental capacity. Moreover, the Rules of Procedure and Evidence call upon the Judges to consider the circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress.

It would be fair to say that up until now the ICC’s position on the effects of the child soldier experience is two-sided or two sides of the same coin. It provides a default approach for child soldiers not facing trial and suggests a qualified approach for former child soldiers on trial. Drumbl has long been calling out this illogical positioning of the Court. It means that for former child soldiers not facing trial, their trauma is continuous and severe, affecting all aspects of their lives. Yet, for former child soldiers facing trial, like Ongwen, the trauma gets compartmentalized and is not relevant to his criminal actions or decisions after the age of 18—and possibly not relevant to punishment. We assert that this position is tenuous at best, particularly when it comes to sentencing. To do so, would completely invalidate (and not just for accountability purposes) the Court’s earlier findings of the trauma experienced by child soldiers more generally.

While it’s hard to make heads or tails of sentencing determinations, we assert it would be a mistake not to take into account his past history for mitigation purposes. To ignore his history would fail to capture the complexities of these types of cases. The qualified approach would also, in many ways, fail to recognize the government’s failure to protect children like Ongwen as well as the LRA’s role in abducting him. This is an opportunity for the Court to grapple with the intricacies of victim-perpetrator realities, far more so than the trial judgment did. International criminal law judges have a responsibility to engage with these issues on a deeper level and we hope that they will do so at sentencing. Should TC IX not do so, it could potentially be appealed by either the Prosecution or Defence.

News Roundup 5 April – 11 April

April 14, 2021

How seven years of war and COVID-19 split Ukraine in two

Ten Myanmar rebel groups back anti-coup protests, condemn junta crackdown

Sub-Saharan Africa: The devastating impact of conflicts compounded by COVID-19

Holdout rebels, sidelined victims, and other hurdles to peace in Darfur

What’s behind the rising violence in Sudan’s Darfur?           

Sudan: Fighting in West Darfur triggers rising death toll  

‘Political, security, human rights and humanitarian challenges’ plague Mali

Nigeria’s unhappy union: How growing insecurity threatens the country’s future

Humanitarian catastrophe in northern Mozambique ‘beyond epic proportions’

Ethiopia is fighting ‘difficult and tiresome’ guerrilla war in Tigray, says PM

Ongwen blog symposium: Precedent on the Prosecution of Juvenile Offenders for International Crimes

April 12, 2021

Milena Sterio is The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law at the Cleveland-Marshall College of Law and Managing Director at the Public International Law and Policy Group.  Milena specializes in international law, human rights, and international criminal law, and is the author of numerous law review articles and seven books.  Her latest book, Syrian Conflict’s Impact on International Law, was published by Cambridge University Press in 2020.  Milena currently serves as Co-Chair of the Transitional Justice and Rule of Law Interest Group at the American Society of International Law, and Chair of the National Security Law Section at the American Association of Law Schools.  

On Feb. 4, 2021, the International Criminal Court (ICC)  convicted Dominic Ongwen of 61 counts of crimes against humanity and war crimes.  Ongwen was a Lord’s Resistance Army (LRA) member whose culpability appears doubtless – he had been accused of numerous atrocities, including brutal acts of sexual violence, and I have seen no commentary questioning the validity of ICC’s conviction.  What appears to be more questionable is the degree to which his sentence should be mitigated, in light of the fact that Ongwen had been abducted by the LRA and was a child soldier.  In fact, the ICC will hold a sentencing hearing in Ongwen’s case this week, at which his counsel will be able to present mitigating evidence and argue in favor of a lower sentence.  This post will discuss whether such mitigation is warranted, in light of relevant human rights standards and existing case law precedent.  This post will conclude that the duality of treating child soldiers as either perpetrators or victims is unwarranted, that a more nuanced approach is necessary, and that while Ongwen’s sentence should be mitigated, his individual criminal responsibility must be acknowledged and an appropriate punishment imposed. 

International Human Rights Standards on the Treatment of Juvenile Offenders

International human rights law dictates that juvenile offenders need to be treated distinctly from their adult counterparts.  The International Covenant for Civil and Political Rights (ICCPR) provides in Article 14(4) that any judicial proceedings applies to juveniles should take into account their age and “the desirability of promoting their rehabilitation.”  The Convention on the Rights of the Child similarly holds in Article 23 that rehabilitation should be a primary goal of punishment regarding a juvenile offender.  In addition, the CRC adopts, in Article 3, the “best interests of the child” standard in court proceedings where the suspect is a juvenile.  Moreover, other international law documents embrace rehabilitation as the leading goal of punishment practices regarding juveniles.  The United Nations Guidelines for the Protection of Juvenile Delinquency (“Riyadh Guidelines”) emphasize that states should adopt policies and programs to ensure that children become productive members of their respective societies.  The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) provide that a strictly punitive approach is not appropriate for juvenile offenders; instead, the Beijing Rules emphasize that any sentence imposed should “always be in proportion .. to the circumstances and the needs of the juvenile as well as to the needs of the society” and that “[t]he well-being of the juvenile shall be the guiding factor in the consideration of her or his case.”  In sum, international law seems consistent in its conclusion that juvenile offenders can be punished, but that their punishment should take into account their young age, and should incorporate rehabilitation as its primary goal.  While it may be argued that these standards are inapplicable to Ongwen who is no longer a juvenile, it seems appropriate to at least acknowledge and consider these standards, in light of the fact that Ongwen was a juvenile when conscripted into the LRA, and that he began to engage in criminal activity as a juvenile. 

Precedent on the Prosecution of Juvenile Offenders for International Crimes

Relevant precedent regarding child soldiers that may be important for the ICC in its sentencing approach in Ongwen includes the Special Court for Sierra Leone’s approach  toward the possibility of prosecution of child soldiers, as well as national-level prosecutions of juvenile pirates.

Although the Statute of the Special Court for Sierra Leone allowed the prosecution of children between the ages of fifteen and eighteen, the Court adopted an official policy to never actually prosecute any juveniles.  In addition, should the Court have decided to prosecute juveniles, the Court’s Statute precluded imprisonment of juveniles as punishment, authorized the use of alternative punishments, and required that the Prosecutor ensure that the rehabilitation of child soldiers not be placed at risk through prosecution.  It is worth noting that then-U.N. Secretary-General, Kofi Annan, argued in favor of establishing a special juvenile chamber within the Special Court, to prosecute offenders between the ages of fifteen and eighteen, as well as a referral of some juvenile cases to a Truth and Reconciliation Commission for Sierra Leone.  Annan’s proposal would have allowed for the prosecution of some juvenile offenders in a special jurisdiction, which would have been mandated to take into account the offenders’ young age and to promote rehabilitation when imposing punishment.  Annan’s proposal, although never adopted, was supported by an influential scholar, Professor Diane Marie Amann (currently ICC Prosecutor’s Special Advisor on Children’s Issues).  Professor Amann had argued in favor of prosecutions of juveniles suspected of most awful crimes as a tool of both accountability and rehabilitation, and ultimately a vehicle of reconciliation.  Thus, if one were to draw a conclusion from the Special Court’s experience, it would be that it may be important to prosecute juvenile offenders accused of the most heinous crimes, but that such prosecutions should take into consideration the offenders’ age and the necessity of their rehabilitation. 

Juvenile offenders have also been prosecuted in national courts when accused of piracy.  Although the crime of piracy is different from crimes against humanity and/or war crimes which other child soldiers, such as Ongwen, have been accused of, piracy is an international and violent crime, and important parallels can be drawn between the treatment of child pirates and child soldiers.  In a noteworthy German prosecution of juvenile piracy suspects, the court handed down light sentences of two years to three offenders; according to newspaper accounts, these juvenile defendants had been provided with various educational and rehabilitative services throughout the criminal process.  In a Spanish prosecution of a piracy defendant who had claimed juvenile status, the court handed down a lengthy sentence of 436 years in prison – but the court rejected the defendant’s juvenile status and determined that the defendant was in fact over the age of eighteen.  In an Italian prosecution, the court sentenced four juvenile pirates to eight years in prison while sentencing their adult counterparts to sixteen- and nineteen-year prison terms.  In a French prosecution, the court sentenced a juvenile pirate to a four-year prison term, while reserving longer 8-year prison terms for adult pirates who had participated in the same piracy attack.  A Malaysian court sentenced three juvenile piracy defendants to eight years in prison, while imposing a longer sentence of ten years on adult pirates.  Finally, the courts in The Seychelles, a nation which has prosecuted a significant number of suspected piracy, initially refused to differentiate between juvenile and adult pirates in sentencing practices.  In subsequent cases, however, Seychellois judges handed down significantly lighter sentences to juvenile pirates, in light of their young age.  Thus, it can be concluded that most national jurisdictions have prosecuted juvenile pirates, but have imposed significantly shorter sentences and have presumably taken into account the defendant’s young age when determining the appropriate (lesser) punishment.  If one were to conclude that Ongwen was a child soldier, and that this fact is relevant today, despite the fact that Ongwen was prosecuted as an adult and only for crimes which he committed as an adult, then relevant case law precedent discussed above would dictate that Ongwen can be punished, but that his sentence would need to be shortened – as compared to the sentence that could be handed down to a similarly situated adult defendant. 

Is Ongwen a Child Soldier?

Accepting or rejecting Ongwen’s status as a child soldier as determinative of his punishment seems overly simplistic.  Ongwen was undoubtedly a child soldier at some point; he was abducted by the LRA at a young age, traumatized and indoctrinated into this brutal movement.  Ongwen was thus a victim.  Yet, Ongwen also committed atrocities.  As the trial record demonstrates, seven women testified that Ongwen forcibly married them, raped them, impregnated them and sexually enslaved them.  The account of these victims is harrowing and convincingly demonstrates Ongwen’s culpability in atrocious crimes of sexual violence.  Ongwen was thus a perpetrator.  Mark Drumbl, one of the most influential authors on the issue of child soldiers, has convincingly argued for nuance: that child soldiers should not all be treated as passive victims, but that instead, courts should differentiate among individual child soldiers and should impose criminal responsibility on those who have committed particularly heinous acts – such as Ongwen.  Drumbl’s view is supported by Amann, who has, as mentioned above, argued in favor of accountability for some child soldiers.  This nuanced view seems particularly appropriate in the case of Dominic Ongwen, who was a child soldier but who nonetheless committed numerous atrocities.  The imposition of criminal responsibility, in the form of an actual prison sentence, is highly warranted in his case.  However, because of Ongwen’s status as a child soldier, his prison sentence should be mitigated.  Ongwen should thus not be sentenced to the same length of imprisonment as another defendant who had not been a child soldier.  In addition, Ongwen’s sentence should incorporate restorative and rehabilitative practices, of the kind typically afforded to juvenile offenders.  This approach would incorporate the duality of Ongwen’s status, as both child soldier and criminal, victim and perpetrator, someone one feels empathy and horror for at the same time.  In conclusion, Dominic Ongwen should be sentenced to a prison term which acknowledges his criminal responsibility in the commission of numerous crimes against humanity and war crimes, while also taking into consideration his status as a child soldier and the desirability of his rehabilitation. 

Blog Symposium: The International Criminal Court’s conviction of Dominic Ongwen, a former child soldier abducted by the Lord’s Resistance Army

April 12, 2021

Julie Fraser is Assistant Professor with the Netherlands Institute of Human Rights (SIM) and the Montaigne Centre at Utrecht University. She has published, taught, and presented at conferences worldwide on a variety of topics relating to international human rights law and transitional justice. Julie defended her PhD in 2018, which was awarded the Max van der Stoel Prize in Human Rights and was published as a monograph entitled Social Institutions and International Human Rights Law Implementation: ‘Every Organ of Society’ (Cambridge University Press 2020). Prior to academia, Julie practiced law as a qualified solicitor, including working with the International Criminal Court. 

This blog symposium considers several socio-legal aspects arising from the International Criminal Court’s (ICC) judgment on 4 February 2021 in the case of the Prosecutor v Dominic Ongwen. At around nine years old, Mr Ongwen was abducted and used as a child soldier in the Lord’s Resistance Army (LRA), an armed group that has operated in northern Uganda since the 1980’s under the leadership of Joseph Kony – who is also wanted by the ICC. In the years following his abduction, Ongwen rose through the ranks to become a commander of the LRA’s Sinia Brigade. The ICC Prosecutor charged Mr Ongwen with 70 counts of war crimes and crimes against humanity committed in camps of displaced persons between 2002 and 2005. This was the Court’s first case from Uganda, which was referred to the ICC in 2004 with arrest warrants issued in 2005. Following a four-year trial and deliberation during the COVID pandemic, the Court’s Trial Chamber IX found Ongwen guilty of 61 counts – the most of any accused before the ICC to date.

The Ongwen case is noteworthy for several reasons, one being the conviction for all 19 counts of sexual and gender-based crimes, including rape, sexual slavery, forced pregnancy, and forced marriage. This is the first time the ICC has found an accused guilty of forced marriage, which is not enumerated in the Rome Statute (RS) but was previously prosecuted at the Special Court for Sierra Leone. The ICC Prosecutor’s track record with prosecuting sexual and gender-based crimes – especially under Ocampo’s leadership – was wanting. As such, this verdict in Ongwen represents a milestone of progressive jurisprudence on gender justice and accountability. The judgment is important also given its attention to gendered (and not just sexual) aspects of the crimes. For example, scholars have commented on the meaningful differentiation made by the Court between sexual slavery and forced marriage, noting the latter as ‘other inhumane acts’ (Art 7(1)(k) RS).

Much speculation surrounding the case was how the judges would address Mr Ongwen’s own victimisation as a child solider and defence of duress and mental capacity. Milena Sterio’s blog in this series explores Ongwen’s identity as a victim and/or perpetrator. This issue is now expected to take centre-stage at the sentencing hearings this week, given that the Court rejected the defence’s arguments. The defence had submitted – and raised again regarding sentencing – that Ongwen was a prisoner of the LRA who was compelled by Kony and his spirits to commit the crimes. In this blog series, Adina-Loredana Nistor analyses the role of such cultural evidence and the construction of (legal) certainty in the courtroom. While the Trial Chamber acknowledged Ongwen’s abduction and significant suffering in his childhood and youth, it concluded that he bears full legal responsibility for the crimes committed as an adult (18 years-old). The blog post by Brianne McGonigle Leyh and Wayne Miller explores these different factors in sentencing. The blog post by Kjell Anderson will focus on aspects of the sentencing hearing later this week.

Another issue due to be resolved by the Court is that of reparations for the over 4,000 victims participating in the trial and following the case. The crimes that Ongwen has been found guilty of are now around 18 years old, meaning that victims have long been living with the lasting effects of war and trauma. The ICC’s Trust Fund for Victims has been carrying out ‘assistance’ measures for members of affected communities in Uganda already since 2008. Given that Ongwen was found to be indigent (for the purposes of legal aid), it is likely that it will again fall to the Trust Fund to support any future reparations order. The size of such an order may be significant, given that the Court last month assessed Mr Ntaganda’s liability for reparations at USD30mil for 18 counts of war crimes and crimes against humanity relating to half the number of victims than in the Ongwen case.

Given the importance of this case, an expert roundtable (recording here) was organised in March 2021 to highlight relevant issues. This online event was hosted by the Public International Law and Policy Group (PILPG) and the Utrecht Centre for Global Challenges at Utrecht University (UGlobe) and attracted hundreds of participants. Milena Sterio, Brianne McGonigle Leyh and I organised the roundtable, which featured: Adina-Loredana Nistor, PhD Candidate in international criminal law at the University of Groningen; Dov Jacobs, Assistant Professor in international law at Leiden University and Counsel before the ICC; Grace Acan, a women’s activist, writer and a co-founder of a local Women’s Survivors Network in Northern Uganda; Kjell Anderson, Assistant Professor of law at the University of Manitoba; and Sarah Kasande, Head of Office for the International Centre for Transitional Justice and Advocate of Courts of Judicature in Uganda. This blog symposium is also an outcome of that collaboration. Thank you to the Armed Groups and International Law Blog for hosting us!

News Roundup 29 March – 4 April

April 7, 2021

‘They Told Us Not to Resist’: Sexual Violence Pervades Ethiopia’s War

Explainer: Truce over as Myanmar’s Karen insurgents brace for battle with junta

Who are the fighters launching attacks in northern Mozambique?

Cameroon’s elusive peace: Rivals, rifts, and secret talks

As ethnic armies unite against coup, war returns to Myanmar’s borderlands

‘In the middle of a war zone’: thousands flee as Venezuela troops and Colombia rebels clash

UN experts alarmed by Russian mercenaries’ ‘abuses’ in CAR

Grave concern for women and children targeted in northern Mozambique

UN investigation concludes French military airstrike killed Mali civilians

Despite government promises, lives in Sinjar remain on hold

News Roundup 22 March – 28 March

March 31, 2021

Myanmar’s armed ethnic factions will not stand by if more killed, says one group

Children Trapped by Colombia’s War, Five Years After Peace Deal

Probe announced into alleged Tigray rights violations: UN rights office

Saudi Arabia proposes ceasefire plan to Yemen’s Houthi rebels

Guterres welcomes Saudi peace initiative to end fighting in Yemen

Amidst ‘heightened intensity’ actions toward peace must be ‘in the best interests’ of Afghans

The end of Yemen

Report: 2020 saw more violence and abuses in Colombia

‘Not a noisy gun’: The women peacebuilders of Liberia

Thousands of Venezuelans flee to Colombia amid military operations

News Roundup 15 March – 21 March

March 24, 2021

Armed attacks kill hundreds, displace 40,000 civilians in northeast DR Congo

Amid Myanmar’s post-coup crisis, armed rebellion brews

UN calls for inquiry after rebels fired missiles into Yemen detention centre

Grisly Killing in Syria Spawns Legal Case Against Russian Mercenaries

Gambia: Alleged ‘Death Squad’ Member Arrested in Germany

ICC letter triggering deferral deadline sent to Israel, Palestinians

Egypt: Massive Sinai Demolitions Likely War Crimes

UNICEF condemns ‘horrific killings’ of civilians in Niger

Children as young as 11 beheaded in Mozambique: NGO

Syria: A decade of flight

Temporalities of Protection and the ‘End’ of Non-International Armed Conflict

March 24, 2021

Dr Nathan Derejko is a Lecturer in the School of Law and Human Rights Centre at the University of Essex. Previously, Nathan was Director of the Human Rights Centre Clinic at the University of Essex, Director of the Masters in Human Rights Programme at University College London, and a visiting lecturer at the International Institute of International Humanitarian Law in Sanremo Italy.

Nathan’s research and teaching interests span three interrelated fields: International humanitarian law, international human rights law, and the use of force under the jus ad bellum. He has a particular interest in the applicability and application of human rights during armed conflict, counter-terrorism and human rights, and the law and practice of non-international armed conflicts. Nathan is also actively engaged outside of academia, and has previously worked with a number of human rights and humanitarian organisations in Canada, Europe, East Africa and the Middle East, and continues to deliver advanced training sessions for military personnel and government agencies, support strategic litigation efforts, and serves as an expert member for various NGO committees. Nathan is currently on the Defend Digital Me Advisory Council, an NGO focused on children’s rights to privacy and family life. Nathan Tweets at @NathanDerejko

The looming threat of a ‘forever war’, characterised by the so-called ‘Global Battlefield’ and the perpetual applicability of international humanitarian law (IHL), has thrust the question of when and how non-international armed conflicts (NIAC) end to the forefront of international concern and debate.

In both practical and legal terms, identifying the end of a NIAC is notoriously difficult. There are several reasons for this, but three in particular are important to highlight. The first is the complex spectrum of social, political and economic factors that underpin, propel, protract and ultimately bring NIACs to an end. Indeed, history is replete with NIACs spanning several years and, in some cases, several decades. The second is IHL’s virtual silence regarding its temporal scope of application during NIAC. While conventional IHL speaks of the ‘end of hostilities’ and the ‘end of the armed conflict’, it stops short of providing any guidance on the precise meaning and scope of these expressions, or the relationship between them. The third is the broad range of stakeholders that declare the end of a NIAC, including governments, military advisors, international organisations, courts and tribunals, humanitarian actors, and human rights defenders. The national interests or organisational mandates that motivate these stakeholders to declare the end of a NIAC invariably influence their determinations in accordance with the specific legal or policy consequences of IHL’s continuation or termination (p165).

In a recent article, A Forever War? Rethinking the Temporal Scope of Non-International Armed Conflict, I undertake a forensic examination of IHL’s threshold of termination during NIAC. The article first explores the temporal architecture of Common Article 3 (CA3) and Additional Protocol II (APII) to determine what, if anything, IHL has to say about its threshold of termination. From here, it critically examines two of the leading approaches for determining IHL’s threshold of termination during NIAC: the ‘peaceful settlement’ approach advanced in the jurisprudence of International Criminal Law (ICL) and the ‘lasting pacification’ approach advanced by the International Committee of the Red Cross (ICRC). While both of these approaches possess advantages and limitations, I argue that neither produce entirely satisfactory results for determining IHL’s threshold of termination during NIAC. For these reasons, the article develops and proposes an alternative ‘functional approach’, which addresses both the silence and shortcomings of existing law and doctrine, while upholding the very object and purpose of IHL during NIACs.

Rather than repeating this analysis, the purpose of this post is  further to explore the logic that underpins and informs the foundational argument in the article: the need to bifurcate IHL’s threshold of termination during NIAC in accordance with the object and purpose of IHL itself. 

Striking the Right Balance Between Premature and Overdue

The underlying challenge in determining IHL’s threshold of termination during NIAC is striking a harmonious balance between a premature and an overdue termination of IHL. In practice, this balance is often skewed by our understanding of how and when NIACs end. Most, but not all (para 70) theories on when and how NIACs end focus on whether hostilities have ceased altogether (or more)(p10), or have been sufficiently reduced in terms of frequency and intensity (somewhere)(p310) below the threshold of activation (p180). While there are good legal and logical reasons for this focus, the rules of IHL applicable during NIAC are not limited to regulating the conduct of hostilities between the Parties but are equally concerned with providing legal protection for individuals who do not, or no longer, participate in hostilities.

Broadly speaking, the framework of IHL applicable during NIACs can be divided between two general sets of rules: the ‘hostilities regime’ and the ‘protections regime’. The ‘hostilities regime’ refers to the IHL rules that regulate the conduct of hostilities between the Parties to a NIAC, the majority of which are found in customary IHL. The ‘protections regime’ refers to the conventional and customary rules of IHL applicable to individuals who do not or no longer directly participate in hostilities, including civilians and members of armed forces who have laid down their arms or are otherwise placed hors de combat. 

Given the distinct function each regime performs during NIAC, their temporal scope of application inescapably varies. For example, while the cessation of, or significant reduction in, hostilities certainly call into question the factual necessity for the rules regulating hostilities, they do not challenge the factual necessity of the protections for individuals deprived of their liberty, subject to criminal procedure, displaced for reasons related to the NIAC, or for individuals who find themselves living in territory under the control of armed groups. In other words, while the hostilities may have ended, the need for IHL’s protections may nonetheless remain.

It is within this operational context that striking a harmonious balance between a premature and overdue termination of IHL’s applicability during NIAC is challenging, if not impossible. For example, if IHL’s threshold of termination during NIAC is determined by an exclusive focus on the cessation of, or significant reduction in, hostilities, this would effectively disregard the temporalities of IHL’s protections and, as a result, (very) likely result in a premature termination of IHL’s protections for individuals who do not, or no longer, participate in hostilities. At the same time however, if IHL’s threshold of termination during NIAC is determined by focusing on the continued need for its protections, this may result in the continued applicability of the rules regulating the conduct of hostilities long after hostilities have been significantly reduced, or even ceased altogether. Considering that a number of IHL’s protections can remain applicable for months or even years after the cessation of hostilities, such  an approach renders IHL vulnerable to abuse by way of providing a thin veneer of legality for conduct that would otherwise be unlawful under the law enforcement regime.

Evidently, the real challenge is the prevailing ‘all or nothing approach’ to IHL’s threshold of termination during NIAC. Moreover, this ‘all or nothing approach’ seems to be the product of International Criminal Law (ICL) interpretations of IHL (para70), rather than a strict interpretation of IHL itself. Indeed, a number of the provisions of APII contain distinct temporal scopes of application that are entirely divorced from notions of ‘end of hostilities’ or ‘end of the conflict’, as is evident in the protections afforded to persons deprived of their liberty, or whose liberty has been restricted. In addition, a number of customary IHL obligations may only be activated following the cessation of hostilities, which in effect are the “post-conflict obligations” of IHL (p24), such as the obligation to identify, remove or neutralise landmines;  the various obligations with respect to the missing or dead; and the obligation to investigate and prosecute alleged IHL violations, and provide any necessary reparations for such violations. As a result, any endeavour to identify a single point in time to terminate the applicability of IHL in toto pays scant regard to the varying temporalities of IHL’s protections and invariablyresults in the over-extension of IHL to factual circumstances that no longer warrant its application, or by the premature termination of its applicability before comprehensive protection is restored under international human rights law. Considering the object and purpose of IHL during NIAC is regulating not only the conduct of hostilities, but also the the consequences of hostilities, a more nuanced approach is necessary.

A Functional Approach to IHL’s Threshold of Termination During NIAC

Given the distinct function the hostilities and protections regimes perform during NIAC, the factual necessity that underpins and informs their temporal scope of application will rarely, if ever, terminate simultaneously. For this reason, a bifurcated approach whereby the threshold of termination of the hostilities and protections regimes are determined separately, is both necessary and appropriate. This functional approach, considered as such, is both legally and operationally sound. Legally sound insofar that it reflects and respects the varying temporalities inherent to the protections of APII, and is predicated on the idea that the temporal scope of IHL must be interpreted in a manner that gives effect to its object and purpose. In operational terms, this functional approach equally guards against a potential premature or overdue termination of IHL during NIAC, and therefore also aligns with the object and purpose of IHL during NIAC.

So how does this work in practice? At its most basic, the temporal scope of the hostilities regime should be interpreted in a manner that gives effect to the function that it serves: regulating the conduct and consequences of hostilities during NIAC. As a general rule, if hostilities are ongoing, the rules designed to regulate hostilities are applicable. Importantly however, the termination of the hostilities regime should not require the complete cessation of hostilities but, rather, a sufficient and factual reduction in their intensity and frequency to the point where the residual armed violence can be factually described as isolated or sporadic, and therefore once again regulated by the law enforcement regime. This determination requires a careful and comprehensive assessment of the prevailing factual circumstances in order to distinguish between a mere lull in hostilities or the temporary suspension of hostilities, from a factual reduction in hostilities that warrants the termination of the hostilities regime. Importantly, the termination of the hostilities regime will have no effect on the applicability of the protections regime.

Along similar lines, the temporal scope of IHL’s protections regime must be construed in a manner that gives effect to the function that it serves during NIAC: to provide legal protection to the victims of NIAC. As a general rule, IHL protections remain applicable until the objective conditions that gave rise to their activation no longer exist, or until such time that individuals benefit from equal or more favourable legal protection under international human rights law. This approach creates a balance between the temporal scope of IHL protections, and the role and relevance of international human rights law during NIAC. This determination can only be made on a case-by-case basis, and through a careful assessment of the prevailing factual circumstances and reference to the specific protections under consideration. As a result, the temporal scope of the various protections during NIAC may in fact vary in accordance with the prevailing factual circumstances.

Conclusion

To sum up, what I have attempted to demonstrate is that neither the ‘end of hostilities’ nor the ‘end of NIAC’ will necessarily bring about the termination of IHL in toto during NIAC. This is because IHL is a pragmatic and functional legal regime comprised of a diverse range of obligations and protections applicable to specific factual circumstances. It is these specific factual circumstances, coupled with the object and purpose of the corresponding provisions of IHL, that will determine the temporal scope of IHL during NIAC. Any other approach would be contrary to the very object and purpose of IHL itself.