Mitigation of Dominic Ongwen’s sentence: Gaps in the justification

On 15 December 2022 the Appeals Chamber of the International Criminal Court (ICC) upheld the conviction and sentence of Dominic Ongwen. Mitigation of Ongwen’s sentence because of his past as a child soldier was not the subject of any of the grounds of appeal, but the appeal process left his sentence unaltered and, as a result, it will receive more attention than it otherwise would. This post will place the decision on mitigation in the context of sentencing practices and argue that it leaves significant questions unanswered.

The findings of the ICC

Ongwen was abducted by a military grouping, the Lord’s Resistance Army (LRA), at the age of about nine and remained in it for the rest of his childhood and beyond (Ongwen Trial Judgment, paras. 27, 30, 31). He was found guilty of 62 counts of crimes against humanity and war crimes (para. 3116). The Trial Chamber considered that from the perspective of the extreme gravity of his crimes a joint sentence of life imprisonment would be in order but, in light of the circumstances of his childhood, it determined by majority that the appropriate joint sentence was imprisonment for a total of 25 years (Ongwen Sentence, paras. 386, 388, 392).

In assessing Ongwen’s abduction and early years in the LRA the Chamber points out that they brought him great suffering and led to him missing out on many opportunities which he deserved as a child. It held:

The fact that Dominic Ongwen did not, at first, choose to be part of the LRA, but was abducted and integrated into it when he was still a child, whose education was thus abruptly interrupted and replaced by socialisation in the extremely violent environment of the LRA, in no way justifies or rationalises the heinous crimes he willfully chose to commit as a fully responsible adult; however, these circumstances, in the view of the Chamber, make the prospective of committing him to spend the rest of his life in prison (despite the hypothetical early release or reduction of sentence after 25 years of imprisonment under Article 110 of the Statute) excessive (para. 388).

The case breaks new ground in international criminal justice in that it found that Ongwen’s experience as a child soldier justified a determinate reduction in his sentence even though it did not lead to a mental disease or disorder and had no lasting consequences from that viewpoint (para. 83).

Analysis

It is striking that the Trial Chamber did not refer to a legal authority of any sort in its discussion of the bearing that Ongwen’s abduction and early life experiences had on the determination of his sentence (Ongwen Sentence, paras. 61-88, 388-390). The position that it took, nevertheless, appears to exemplify trends in sentencing, even if they are unmentioned, in particular the treatment of childhood disadvantage as mitigation where the disadvantage is grave (see, e.g., Jacobson and Hough, pp. x, 32) and where defendants are facing the highest possible penalty (see, e.g., Gohara, especially pp. 51-57). Also relevant is a less prominent and less developed tendency to regard hardship associated with armed conflict as a mitigating circumstance (Čelebići Trial Judgement, paras. 1248, 1283-1284; Hadžihasanović Trial Judgement para. 2081; Orić Trial Judgement, paras. 767-772).

The Chamber does not specify whether the reason for viewing Ongwen’s abduction and childhood in the LRA as mitigation was the mere fact that they occurred or a belief that these circumstances were at least a partial cause of his criminality or both. The passage in paragraph 388 quoted above perhaps comes closest to suggesting a causal link but it falls far short of stating that there is one. In domestic jurisdictions courts have sometimes made an unambiguous statement that childhood disadvantage may be mitigatory because later criminality is attributable to it. This is famously expressed in Justice O’Connor’s Concurring Opinion in California v. Brown.

If the Chamber determined that there was a causal connection between Dominic Ongwen’s childhood and his later crimes, its nature is unclear. In the decision on sentencing the discussion of his childhood consists mostly of factual evidence of his experiences and conduct (paras. 71-82). The sole item of expert evidence presented is a brief outline in paragraph 81 of a developmental assessment made by Dr. Catherine Abbo, a Child and Adolescent Psychiatrist, in which she found that he “would seem to have matured developmentally against all the odds”. The only pointer to any detrimental effect of Ongwen’s childhood in this paragraph is her opinion that every minute of his everyday traumatic experiences from the time he was abducted had an impact on the development of his brain. The Trial Chamber does not go on to find that this inclined Ongwen to commit the crimes for which he was found guilty. The mitigation may equally be dependent on a common sense non-expert inference that Ongwen’s socialisation in the extremely violent environment of the LRA constituted at least a partial causal explanation for his actions. Neither possibility is excluded.

The Trial Chamber noted that many other people who, in circumstances often very similar to those in which Dominic Ongwen found himself, made different choices (Ongwen Sentence, para. 85) and that he had the possibility not to order others to commit crimes and, equally, not to commit further crimes personally – but chose otherwise (para. 86). This contrasts with the cases of Issa Hassan Sesay at the Special Court for Sierra Leone and Germain Katanga at the ICC where the possibility of making different choices was held to be a reason not to treat past damaging experiences as mitigation. The Trial Chamber of the Special Court for Sierra Leone noted that Sesay was 19 years old at the time of his forcible recruitment into the Revolutionary United Front, but it was of the opinion that this forced recruitment could not mitigate the crimes that he later committed because it considered that that he could well have chosen another path (para. 220). In the Decision on Sentence in Katanga the ICC Trial Chamber considered but rejected mitigation on grounds of hardship associated with armed conflict. It stated that whilst it was undeniable that Germain Katanga suffered a great deal from the violence perpetrated against civilians, it nevertheless could not consider that he “found himself completely ‘caught up’” at the time of his crimes to the extent of no longer being capable of freely making decisions (para. 83). The Sentence in Ongwen does not present any basis for differentiating Ongwen’s situation from those of Sesay or Katanga.

Conclusions

When a court consisting of three international judges is faced with a profoundly difficult decision in which it is pulled in opposing directions, there may be any number of reasons why the explanation that it gives leaves loose ends. Moreover, the principal purpose of the Trial Chamber in the Ongwen Sentence was, of course, to decide on the penalty that was appropriate for Dominic Ongwen and for him alone. Indeed, under Article 78(1) of the ICC Statute, the Court is obliged to take into account the individual circumstances of the convicted person. This does not, however, preclude the consideration of principles applicable to broader categories to which the particular case belongs. Here the categories concerned are not limited to those of people forcibly recruited into military formations or even just of people who have had disadvantaged childhoods.

It would therefore have been preferable for the Trial Chamber to have given greater precision to the basis for its finding of mitigation. It could have done this by referring to the trends that its decision reflected, the respects in which it diverged from them and the reasons for divergence. There would then have been greater certainty as to its findings and a firmer basis for the future development of law and practice. The ICC, whatever criticisms might be made of it, is regarded as a beacon of global justice and its decisions are looked up to. In the final analysis there will be a better understanding, and even increased acceptance, of mitigation based on the brutality of armed conflict if it is transparent, foreseeable and explicitly rule-governed.

Photo: A view of the ICC premises. UN Photo/Rick Bajornas. 19 April 2016. The Hague, Netherlands.