23 Jun The Sentencing of Dominic Ongwen: A Normative Inquiry
[Shashikala Gurpur is the Director of Symbiosis Law School and Dean of the Faculty of Law at Symbiosis International University. Sayantan Bhattacharyya is a 4th-year B.B.A LL.B ( Hons) student at Symbiosis Law School and Sujata Arya is an Assistant Professor of Law at Symbiosis Law School.]
On 6 May, 2021, Dominic Ongwen, an erstwhile Commander of the Lord’s Resistance Army (“LRA”) in Uganda, was sentenced to 25 years of imprisonment for the 61 crimes of which he was convicted by the International Criminal Court (“ICC”). The decision is of great importance for International Criminal Law (“ICL”) for reasons ranging from the sheer scope of the crimes with which Ongwen was charged, and eventually convicted, to the circumstances of the parties involved in the situation. Importantly, the ICC considered the impact that Ongwen’s childhood trauma, pertaining to his forceful abduction by the LRA as a child soldier, should have on the sentence that he ought to be awarded.
While agreeing with the victims that the gravity of his crimes was sufficient to warrant a life sentence, the gravest punishment under the Rome Statute, the ICC nonetheless refrained from imposing it in this matter. It reasoned that it was mandated to consider Ongwen’s ‘individual circumstances’ in his sentencing, as per Article 78(1) of the Rome Statute, and that the same were gruesome enough to justify a deviation from a life sentence. However, it did so while also agreeing with the victims that he committed the said crimes with full intention and as a fully responsible adult.
Firstly, when considered in light of the jarring nature of the crimes for which Ongwen was convicted, which include sexual slavery, war crimes, rape, gender-based violence, murder, enslavement, torture, and numerous other atrocities, the scale at which they were committed, and the fact that the ICC agreed that he committed them with full intention, bereft of duress or mental incapacity, it becomes important to ask how much should individual circumstances matter in such a case. Secondly, it also warrants an inquiry into how justice for the victims can be best achieved, when juxtaposed with the sentencing calculus of the Rome Statute. This article engages with these two questions, highlighting important issues with the Court’s reasoning behind its abstention from imposing a life sentence in this case. Through this, it attempts to shed much-needed light on the considerations that underlie the ICC’s sentencing of convicts.
Analysing the Sentence
The ICC has a difficult role in functioning as a victim-centric Court, while attempting to balance this against the rights of convicts. As the Court noted in Ongwen’s sentencing, while victims should be heard, ‘revenge’ should not guide judicial decision-making. Article 78(1) of the Rome Statute requires it to consider the individual circumstances of a convict, in determining their sentence. However, it does not provide further guidance as to how such circumstances should be weighed. This important ambiguity came to light in the sentencing of Ongwen. He had not only committed numerous atrocities as an LRA commander, but he had done so in factually distinct circumstances. For instance, the crimes and murders that he perpetrated in the Pajule, Lukodi, Odek, and Abok IDP camps, were very distinct from his crimes of sexual slavery, rape, and forced pregnancy. The latter, again, were separate from his war crimes involving the conscription of children under 15 years of age to participate in hostilities.
Moreover, the ICC noted that Ongwen fully intended to commit these crimes. Ongwen’s victims are numbered in the hundreds in many of these incidents. When considered in light of how at least one aggravating circumstance was present in each of these commissions, it becomes evident that their cumulative gravity is incredibly visceral. This made the Court note that a case for a joint sentence of life imprisonment was indeed made out.
However, it stopped short of imposing such a sentence. It considered the childhood trauma that Ongwen had experienced, which he recalled in great detail and with consistency in his personal statement. A gifted child, he was abducted by the LRA when he was 9 years old, and deprived of the important formative institutions of a caring family and community. Instead, he was socialized in the violent environment of the LRA, made to participate in violent crimes, and forced to function as a child soldier in incredibly harsh conditions. Furthermore, he was told of the killing of his parents during these formative years, and that instilled sentiments of loneliness and despair within him.
While these circumstances are compelling, it is still important to consider how they compare to the magnitude of the suffering of Ongwen’s victims. In this regard, the Court’s reasons to opt for a sentence of 25 years, which lies right in the middle of 20 years, the lowest sentence Ongwen could have received given his convictions, and 30 years, which would have been the highest, seem incomplete. They does not answer how the final sentence, to borrow the Court’s own words, is reflective of “the totality of Dominic Ongwen’s culpable conduct for the crimes of which he was found guilty.”
The authors do not, in any manner, wish to imply that a completely objective calculation of such a sentence is possible. Indeed, the subjectivity of juxtaposing the convict’s trauma with that of the victims is a difficult task. However, it is nonetheless crucial to be as accurate and deliberate as possible, in such exceptional cases,to ensure consistency in sentencing. Given that the Court notes that Ongwen’s lack of agency in being subjected to the conditions of the LRA “in no way justifies or rationalizes the heinous crimes that he willfully chose to commit as a fully responsible adult,” one is left wondering at what point a sentence in such a situation might be considered adequate.
To illustrate this problem further, it is unclear which of Ongwen’s crimes might actually be rooted in his trauma, and to what extent. For instance, one might ask if his horrifying, repeated, and intentional engagement in sexual crimes and gender-based violence can truly be considered an offshoot of his past as a child soldier. If yes, how does one draw that link? Alternatively, how dependent were his crimes at the Pajule, Lukodi, Odek and Abok IDP camps on his childhood circumstances? Even if some relationship exists in the above cases, to what extent would they be relevant, given the grievous nature of the crimes? These questions are important. To say that he suffered trauma as a child, and that it has been consideredin his sentencing for a range of distinct crimes, is insufficient. It can also render the 25-year sentence somewhat arbitrary.
This would be a disservice to the victims, and the question of whether their calls for a life sentence were indeed too much. Would such demands really be for ‘revenge’? In any case, wouldn’t similar sentiments underscore calls for justice in most international crimes? Importantly, even if the sentiment underlying a call for a life sentence is vengeful, it does not, in any manner, dilute the normative force of seeking such a sentence in the said matter. The decision of whether a life-sentence would be justified would function independently of the victims’ emotional state. This would require the Court to illustrate, a little more clearly, why the mid-point of the two possible sentences would be the most appropriate, given the convict’s ‘individual circumstances.’
One final question that remains is whether the act of such sentencing itself is important for rendering justice. The authors would answer this in the affirmative. While the securing of a conviction identifies that an injustice had been committed, the imposition of a sentence attempts to remedy it and deliver justice. Criminal jurisprudence has developed to a point where, in most cases, punishment is imposed sparingly, in order to do justice not only to the victim, but to also reintegrate the convicted person into society after they have been rehabilitated. However, in some cases, the commissions concerned are of such heinousness that the reduction of sentences is rendered exceedingly difficult. The Rome Statute recognizes this, by requiring the individual circumstances of a convict to be compared with the gravity of their crime vide Article 78(1). The next part of this article is devoted to analysing how this comparison may be carried out.
Normative Considerations in Sentencing
While substantive considerations of the core crimes of the Rome Statute, and procedural matters pertaining to the triggering of the ICC’s jurisdiction have witnessed much academic debate, considerations of how its sentencing calculus might intersect with the requirements of justice have been woefully lacking. The sentencing of Dominic Ongwen might provide the necessary impetus for serious inquiry into this subject. The authors shall offer two important considerations pertaining to this.
Firstly, the principle of proportionality, as it relates to sentencing,should be given significant weightage in determining the impact of the ‘individual circumstances’ of the convict. While this is still a subjective criterion, there can be helpful methods of evaluating whether such individual circumstances would be meaningful in a test for proportionality. Foremost amongst these would be detailed considerations of how proximate the trauma of the convict might be to their victims’ suffering at their hands. Traumatic experiences which are far-removed in time should be evaluated with considerable caution. Similarly, diligence must be placed on identifying factors which link such trauma to the crimes committed. A just consideration of such factors can swiftly turn arbitrary if a tribunal functions with the belief that individual circumstances must be relevant for all crimes that a convict has committed. In this regard, it is anticipated that one might argue for the relevance of usingpunishment sparingly as a principle. However, as the ICC noted in Ongwen’s sentencing, in some cases life sentences might be justified. Any subtraction from such a sentence should be grounded in accurate normative analysis. Otherwise, the balance of proportionality, even in punishment, is disrupted in favour of the convict.
Secondly, the principle of proportionality should also be weighed in light of the suffering that the convict might have caused. Here it intersects with the principle of fairness in sentencing. As the ICC noted in this case, Ongwen’s crimes were aggravated, intentional, and separate in temporal and factual contexts. Therefore, it should follow that each such additional crime that he committed would strengthen the normative case for the fairness of a life sentence. At one point, the sheer cumulative gravity of these crimes would be such that any subtraction would be rendered considerably difficult. In light of this, it can even be argued that even the individual circumstances of a convict might not, in such circumstances, warrant a subtraction from a life sentence. It should be noted that Article 78(1) simply requires the ICC to take into account the individual circumstances of the convict. Importantly, the same Article also requires it to consider the gravity of the crime. Nowhere is a subtraction mandated. From the wording of the provision itself, it might appear that in certain cases, even traumatic individual circumstances might not suffice to allow such a subtraction, in light of the sheer gravity of the, intentionally committed, crimes involved.
The sentencing of Dominic Ongwen lays down important developments in ICL jurisprudence. It is also a careful attempt on the ICC’s part to provide a just and adequate verdict, cautious of the circumstances of the victims as well as those of the convict. However, on closer scrutiny, some aspects of the Court’s reasoning behind its imposition of a 25-year sentence seem insufficient. This can function as an important catalyst for much-needed academic debate on what the requirements of a just and adequate sentence actually are as per the Rome Statute. The authors would recommend detail in weighing the individual circumstances of a convicted person against the gravity of the crime; particularly to ensure that the principles of proportionality and fairness are respected. This would, however, serve as the mere initiation of a discussion on this important topic, given its relevance for actual impact of the Ongwen decision.