Can Duress Exclude Criminal Responsibility of Former Child Soldiers? The Case of Dominic Ongwen Before the International Criminal Court

International Criminal ◽

Criminal Responsibility ◽

Child Soldiers ◽

Negative Answer ◽

Criminal Court ◽

Armed Conflicts ◽

The Social ◽

Former Child Soldiers

The phenomenon of child soldiers encompasses up to half a million of adolescents around the world and is – without a doubt – one of the most pressing humanitarian problems of contemporary armed conflicts. This article aims at addressing this issue by examining an ongoing trial of Dominic Ongwen before the International Criminal Court. The first part is dedicated to the description of Dominic Ongwen’s life through the prism of the ‘victim’ and ‘perpetrator’ labels. In this respect I try to prove that in many situations these two labels do not fit the social reality which they are supposed to classify or categorize. In the second part, I refer to the taxonomy of defences, justifications, excuses and grounds for excluding criminal responsibility in domestic and international criminal law. I also analyse concepts of duress and necessity as they are codified in the Rome Statute of the International Criminal Court. On these basis, I give a negative answer to the question if Dominic Ongwen will be able to effectively invoke one of these defences in order to limit or exclude his criminal responsibility, while in conclusions I also provide a short assessment of ‘the law as it is’.

FOMER CHILD SOLDIERS: PRODUCT OF ARMED CONFLICTS AND HOW THE INTERNATIONAL CRIMINAL COURT FAILS TO SEE ITS SIGNIFICANCE

Padjadjaran Journal of International Law ◽

10.23920/pjil.v3i2.319 ◽

2019 ◽

Vol 3 (2) ◽

pp. 181-201

Author(s):

Dino Panji Pananjung ◽

Sigar Aji Poerana

Keyword(s):

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Armed Forces ◽

Child Soldiers ◽

Criminal Court ◽

Armed Conflicts ◽

Former Child Soldiers ◽

Keywords Child

AbstractIn armed conflicts, children are often kidnapped and forced to become child soldiers, they are also given forced indoctrination (by violence and threats) and are taught to commit crimes, such as looting and murder. Disobeyed children and those who try to escape will be punished in the form of torture or even being executed in front of other children's soldiers as a lesson so others will not follow their step. When they did not serve the armed forces anymore or they grew up and no longer held child status, they were given the title of "former child soldiers". These former child soldiers might still live in rebellious environments and commit serious crimes including international crimes under jurisdiction of International Criminal Court when they grow up. This research argues whether the International Criminal Court considers the historical status of the perpetrators who are former child soldiers as mitigating factor of their punishment. The research method used is the juridical normative approach. The result of this research shows the International Criminal Court has never considered the history of international criminals as child soldiers. However, the International Criminal Court may use the consideration beside what has been regulated in Rome Statute, such as Article 21(3). This is also based on the Judge's right for discretion in the Rome Statute to adjudicate, as what we can see in the Case of Omar Khadr. Keywords: Child Soldier, Criminal responsibility, International Criminal Court, Judgment and Sentencing, Rome Statute. AbstrakDalam konflik bersenjata, anak seringkali diculik dan dipaksa menjadi tantara anak, mereka juga didoktrin paksa (melalui kekerasan atau ancaman) serta diajakan untuk melakukan kejahatan seperti menjarah dan membunuh. Mereka yang tidak menurut dan yang mencoba melarikan diri akan dihukum dengan disiksa di hadapan para tantara anak lainnya sebagai contoh agar tidak ditiru oleh anak lainnya. Mereka disebut “mantan tantara anak” setelah tidak lagi menjadi teantara atau telah dewasa. Tidak menutup kemungkinan ketika dewasa mereka hidup dengan jiwa pemberontak dan melakukan kejahatan serius bahkan kejahatan internasional yang menjadi jurisdiksi Mahkamah Pidana Internasional. Penelitian ini membahas apakah Mahkamah Pidana Internasional mempertimbangkan riwayat seorang pelaku kejahatan internasional yang menjadi seorang mantan tentara anak untuk meringankan hukuman mereka. Metode penelitian yang digunakan adalah yuridis normatif. Hasil penelitian menunjukkan bahwa praktik Mahkamah Pidana Internasional tidak pernah mempertimbangkan latar belakang pelaku kejahatan internasional sebagai mantan tentara anak. Namun, Hakim Mahkamah Pidana Internasional dapat menggunakan ketentuan diluar Statuta Roma berdasarkan pasal 21(3). Hal ini juga didasari pada adanya diskresi Hakim untuk memutus dan mengadili diluar yang diatur di dalam Statuta Roma, seperti halnya Kasus Omar Khadr. Kata Kunci: Mahkamah Pidana Internasional, Pemidanaan, Pertanggungjawaban Pidana, Statuta Roma, Tentara Anak.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

10.1093/law/9780198739777.003.0032 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Customary International Law ◽

Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

The International Criminal Court and Non-International Armed Conflicts

Leiden Journal of International Law ◽

10.1017/s0922156500000297 ◽

2000 ◽

Vol 13 (2) ◽

pp. 395-425 ◽

Cited By ~ 4

Author(s):

Heike Spieker

Keyword(s):

International Criminal ◽

Criminal Responsibility ◽

War Crimes ◽

Criminal Court ◽

Armed Conflicts ◽

Crimes Against Humanity ◽

International Humanitarian Law ◽

Humanitarian Law ◽

International Conflicts

Non-international armed conflicts are more numerous, more brutal and entail more blood-shed today than international ones. The Statute of the International Criminal Court explicitly upholds the traditional distinction between international and non-international conflicts, and armed conflicts will have to be characterized accordingly. But the tendency to adapt the international humanitarian law (IHL) regime for non-international conflicts to the rules for international ones emerges. Article 7 on Crimes Against Humanity and Article 8(2)(c) and (e) on War Crimes amount to real progress in this respect. Yet, the regulation on war crimes in particular does not provide for comprehensive criminal responsibility of individual perpetrators in non-international conflicts.

Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court

10.1163/156753608x265295 ◽

2008 ◽

Vol 8 (1-2) ◽

pp. 229-272 ◽

Cited By ~ 13

Author(s):

Harmen van der Wilt

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

International Standards ◽

Actual Performance ◽

Legal Standards ◽

Principle Of Complementarity

AbstractThe Rome Statute contains a body of legal standards on elements of the offences, concepts of criminal responsibility and defences of unprecedented detail. Whereas these standards serve the International Criminal Court as normative framework, the principle of complementarity implies that domestic jurisdictions are to take the lead in the adjudication of international crimes.This article addresses the question whether domestic legislators and courts are bound to meticulously apply the international standards, or whether they are left some leeway to apply their own (criminal) law. The article starts with a survey of the actual performance of national jurisdictions. Current international law does not explicitly compel states to copy the international standards; at most one might argue that the codification of international criminal law and the principle of complementarity encourage harmonization.Capitalizing on the concept of 'open texture of law' and the methodology of casuistry, the present author argues that a certain measure of diversity in the interpretation and application of international standards is inevitable and even desirable. However, as a general rule, states have less freedom of interpretation in respect of the elements of crimes than in the application of concepts of responsibility and defences.

Virtue Ethics, Criminal Responsibility, and Dominic Ongwen

10.1163/15718123-01903005 ◽

2019 ◽

Vol 19 (3) ◽

pp. 475-504

Author(s):

Renée Nicole Souris

Keyword(s):

Moral Development ◽

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Moral Perception ◽

Child Soldier ◽

Unlawful Conduct

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. I show than an implication of this view is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court.

Establishment of the International Criminal Court and the Role of USA: A Legal Appraisal

Northern University Journal of Law ◽

10.3329/nujl.v1i0.18525 ◽

2014 ◽

Vol 1 ◽

pp. 51-69

Author(s):

Saud Hassan

Keyword(s):

Human Rights ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Armed Conflicts ◽

Humanitarian Law ◽

National Courts ◽

The World

In order to end global impunity of perpetration of heinous crimes against humanity and gross violation of human rights and to bring individual perpetrators to justice, international community felt the need for a permanent international criminal court.2 As the armed conflicts and serious violations of human rights and humanitarian law continue to victimize millions of people throughout the world, the reasons for an international criminal court became compelling.3 In many conflicts around the world, armies or rebel groups attack ordinary people and commit terrible human rights abuses against them. Often, these crimes are not punished by the national courts. Here the ICC is complementary to national criminal jurisdictions.4 The court only acts in cases where states are unwilling or unable to do so.5 The jurisdiction of the Court is not retrospective and binds only those States that ratify it.6 Unlike the International Court of Justice in The Hague, whose jurisdiction is restricted to states, the ICC has individualized criminal responsibility. However, the role of USA regarding the establishment and continuation of ICC has caused the organization fall in a trouble. The better cooperation of USA and other states could make the organization more active and effective as to its activities. The view of this paper is to analyze the role of USA towards the establishment, continuation and function of the International Criminal Court. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18525 Northern University Journal of Law Vol.1 2010: 51-69

Ruling through the International Criminal Court’s rules

Carta Internacional ◽

10.21530/ci.v14n1.2019.841 ◽

2019 ◽

Vol 14 (1) ◽

pp. 177-201

Author(s):

Luisa Giannini Figueira ◽

Roberto Vilchez Yamato ◽

Claudia Alvarenga Marconi

Keyword(s):

Criminal Law ◽

International Institutions ◽

International Criminal ◽

Social Role ◽

International System ◽

Criminal Court ◽

International Criminal Justice ◽

The Social

This article investigates sovereign (in)equality as a phenomenon that is manifested in thedifferent levels of international institutions. The analysis is developed from the process againstOmar Al Bashir, Sudan’s President-in-Office, at the International Criminal Court. Consideringthat norms and rules have a social role in the multiple relations existing between agents andstructures, that is, they transform relations in the international system, the article investigates the dispositions and principles present within the scope of the International Criminal Courtthat authorize a discrimination between States. This distinction implies the imposition ofinternational rules for some actors and the maintenance of certain sovereign prerogativesfor others. More specifically, international criminal justice is characterized by selectivityin judgments, as some countries are given certain authority over the regime. In this sense,it is argued that the sovereign (in)equality that is present in international criminal law issimultaneously a manifestation and condition of possibility for the hierarchy in the social,and therefore institutional normative, and political architecture of the international system.It is argued that the presence of this sovereign (in)equality can be identified at the differentlevels of the institutions of international society, insofar as they influence one another.

The Institution of the International Criminal Court

Leiden Journal of International Law ◽

10.1017/s0922156599000357 ◽

1999 ◽

Vol 12 (3) ◽

pp. 671-681

Author(s):

Gerard Strijards

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Host State ◽

Head Of State ◽

Key Aspects ◽

Domestic Law

This article discusses certain key aspects arising from the negotiations leading up to the adoption of a Statute for an International Criminal Court (ICC), to have its seat in The Hague. These aspects include individual criminal responsibility regardless of status as Head of State or constitutional organ and the transformation of international criminal law into domestic law. Also discussed are the two appendices to be added to the Statute pertaining to substantive criminal law and rules of criminal evidence and procedure to be used by the Court. The author argues that the appendix on the law of criminal procedure will be of particular importance to the Netherlands as the host state. The obligations regarding legal assistance of the host state will be dependent on this.

International Criminal Responsibility Concerning ‘Control over an Organization’ and Command Responsibility Lato Sensu

10.1163/157181212x634162 ◽

2012 ◽

Vol 12 (2) ◽

pp. 293-300 ◽

Cited By ~ 1

Author(s):

Hiromi Satō

Keyword(s):

International Law ◽

Criminal Law ◽

Rome Statute ◽

International Criminal ◽

Criminal Responsibility ◽

Criminal Court ◽

Customary International Law

The International Criminal Court recently presented its arguments concerning criminal responsibility arising pursuant to the theory of ‘control over an organization’. This theory is based on the notion of ‘perpetrator-by-means’ found in the Rome Statute, Article 25(3)a. The court appears to have utilized this theory to establish principal responsibility for ordering in contrast to accessorial responsibility prescribed in Article 25(3)b of the said Statute. However, it should be noted that customary international law has long established the notion of command responsibility lato sensu, recognizing the serious and primary nature of superiors’ responsibility for ordering. This article argues that there should be some conscious sequence between the discussions of ‘control over an organization’ and command responsibility lato sensu for the sake of the integrity of the discourse in international criminal law.

Seeking Asylum before the International Criminal Court. Another Challenge for a Court in Need of Credibility

10.1163/15718123-01303006 ◽

2013 ◽

Vol 13 (3) ◽

pp. 725-745 ◽

Cited By ~ 3

Author(s):

Dersim Yabasun ◽

Mathias Holvoet

Keyword(s):

The Netherlands ◽

International Criminal ◽

Child Soldiers ◽

Criminal Court ◽

Secondary Sources ◽

Refugee Law ◽

Republic Of The Congo ◽

International Refugee Law

In 2012 the International Criminal Court (ICC) celebrates its ten-year anniversary since its establishment. It is fair to say that the current age of the Court reflects its present maturity. At the time of writing, the Court has finally rendered its first verdict, by condemning the Congolese warlord Thomas Lubanga for the conscription of child soldiers after a rather wobbly trial that took 6 years. In May 2011, the Court faced another unprecedented challenge. Four witnesses transferred from the Democratic Republic of the Congo (DRC) to testify in the Lubanga and Katanga & Ngudjolo Chui (hereinafter: Katanga) trials, applied for asylum in the Netherlands. This matter, which was not anticipated in the Statute or secondary sources of ICC law, raises issues concerning the cooperation between the ICC, the Netherlands as host state and the DRC, and raises intriguing questions about the interaction of international criminal law and international refugee law.