Do the Dominic Ongwens of the world deserve a bit more empathy?

it is unclear that we know anything more about how to deal with the complex issue of victim-perpetrators

A member of Dominic Ongwen's extended family holds a poster as they listen to the sentencing on a radio in Coorom, Ongwen's home village, Uganda, on May 6, 2021. The International Criminal Court on May 6, 2021 sentenced Dominic Ongwen, a Ugandan child soldier who became a commander of the notorious Lord's Resistance Army (LRA), to 25 years in jail for war crimes and crimes against humanity. Ongwen, 45 was found guilty in February 2021 of 61 charges, including murders, rapes and sexual enslavement during a reign of terror in the early 2000s by the LRA, led by the fugitive Joseph Kony. / AFP / Sumy SADURNI

Just a few years ago, Dominic Ongwen sported the fatigues of a rebel commander in Central Africa. His time in the bush must have seemed like a lifetime ago as he sat in a grey suit, red tie and surgical mask, listening to judges at the International Criminal Court (ICC) as they determined his fate. In the end, they handed Ongwen a 25-year sentence for the 61 counts of war crimes and crimes against humanity he was convicted of earlier this year.

Back in 2015, when Ongwen was surrendered to the ICC, his trial posed a moral challenge. On the one hand, had he not been abducted as a child by a rebel group called the Lord's Resistance Army (LRA), he could not have perpetrated the crimes he was charged with. On the other, Ongwen had remained in the LRA for many years, rising through the ranks and committing horrendous atrocities against civilians in northern Uganda and neighbouring regions. Did his victimhood make him any less guilty?

When he first appeared before the ICC, many international criminal lawyers came to a rather tidy conclusion: no. After he turned 18, the atrocities Ongwen perpetrated could be prosecuted by the ICC and judges wouldn't be "distracted" by his past. Others, however, insisted that there must be space to consider his status as a victim-perpetrator. Further complicating matters, many argued that the ICC was an inappropriate venue to pursue justice for Ongwen's crimes: he should either have been prosecuted in the Ugandan courts, or put through a process of customary, local and traditional justice focused on reconciliation – or both. In northern Uganda itself, feelings towards Ongwen are mixed, even contradictory, just as feelings about justice often are.

epa09182708 A handout photo made available by the International Criminal Court (ICC) shows former commander of the Ugandan guerilla group 'Lord's Resistance Army' (LRA) Dominic Ongwen during his trial at the International Criminal Court (ICC) in The Hague, The Netherlands, 06 May 2021 (issued 07 May 2021). The ICC sentenced Ongwen to 25 years of imprisonment for crimes against humanity and war crimes, commited in Northern Uganda between July 2002 and December 2005.  EPA/INTERNATIONAL CRIMINAL COURT HANDOUT  HANDOUT EDITORIAL USE ONLY/NO SALES *** Local Caption *** 56701711

But six years and a verdict later, the question remains: what, if anything, have we learned?

It is not obvious that anyone who staked their position on whether and how much Ongwen’s past mattered have departed from their views in the intervening years. In the end – and as many predicted – Ongwen faced the full force of ICC law and the only consideration of the harms that he suffered came in his sentencing, where the Court’s judges handed down 25 years instead of a life sentence.

Ongwen is now 45 years old and has already served six years of his sentence while on trial. Should the sentence be upheld on appeal, he will be 64 before leaving prison unless he is released early – in just under 11 years – for good behaviour. Where he will be imprisoned remains unclear; ICC member states typically step in to take in those convicted by the Court, but it does not appear that any have done so yet.

In convicting Ongwen on 61 counts of war crimes and crimes against humanity, but also reducing his sentence, ICC judges appear to have attempted to thread the proverbial needle: delivering a harsh sentence, but not the harshest that they could have (one partly dissenting judge wanted a sentence of 30 years). To be sure, few could envy the position of the judges, having to juggle so many demands in a trial that received heaps of political, ethical and legal scrutiny.

But for some, it also feels like a missed opportunity. Ongwen’s status as a victim-perpetrator was barely relevant during his trial. Beyond his reduced sentence, it is unclear that we know anything more about how to deal with the complex issue of victim-perpetrators. Courts simply prosecute them like anyone else and their past is largely irrelevant.

This matters beyond international criminal law and The Hague. It is tragically common for victims of violent crimes to perpetrate the same or similar crimes later in life. In some countries, such as Canada, issues of intergenerational trauma and historical experiences are taken into account when sentencing indigenous and black offenders, an acknowledgement of the systemic racism and structural violence they face.

However, criminal law – be it domestic or international – remains a blunt tool that rarely treats prior victimhood as an issue that matters beyond sentencing. Judges in national courtrooms and international tribunals rarely have the intellectual or legal capacities to deal with why someone perpetrated a serious crime; it doesn’t tend to matter where offenders came from, or what hardships they face, just what they did. There is little space for compassion or even the hard work of simply understanding why some people emerge as perpetrators of violent crime, and any consideration of the subject is left to an assessment of mitigating factors in sentencing.

None of this is to exonerate Ongwen. The atrocities that he committed, and which were documented during the trial, were horrific. They included sexual slavery, forced marriage and rape. Moreover, Ongwen never accepted that he was a perpetrator, insisting that he was only a victim, while expressing little remorse and no responsibility for his actions.

There is likewise a real danger in giving too much credence to a perpetrator's status as a former victim. Doing so risks telling victims that the individuals who harmed them aren't culpable, a morally repugnant position. As Paul Bradfield, who worked for the ICC prosecution, observed: "Ongwen's tragic victimhood… could never have reasonably amounted to an excuse to victimise others – to the point of committing crimes against humanity – without any culpability."

In the end, we seem very close to where we started: holding victim-perpetrators accountable using a system that currently has little ability to deal with the moral and political complexity presented to it by perpetrators who were also once victims. It is not a system built upon compassion or rehabilitation, but rather one focused myopically on retribution. One can hope, however, that at least some of his victims take some consolation in knowing that Dominic Ongwen has finally been punished.

Mark Kersten is an expert in international law and a consultant at the Wayamo Foundation

Residents of Lukodi village, where dozens were killed in 2004 by the Lord's Resistance Army, react as they listen to the International Criminal Court's (ICC's) sentence of Dominic Ongwen, a Ugandan child soldier-turned-Lord's Resistance Army commander, on radio in Lukodi, Uganda, on May 6, 2021. The International Criminal Court on May 6, 2021 sentenced Dominic Ongwen, a Ugandan child soldier who became a commander of the notorious Lord's Resistance Army (LRA), to 25 years in jail for war crimes and crimes against humanity. 
Ongwen, 45 was found guilty in February 2021 of 61 charges, including murders, rapes and sexual enslavement during a reign of terror in the early 2000s by the LRA, led by the fugitive Joseph Kony. / AFP / Badru KATUMBA
Mark Kersten

Mark Kersten

Mark Kersten is an expert in international law and a consultant at the Wayamo Foundation