Ongwen sentenced by ICC: court’s intricate balancing task

7 May 2021 · Carmel Rickard

Dominic Ongwen, a former child soldier captured by the Lord’s Resistance Army in northern Uganda and forced to join that militia, has been sentenced as an adult for the more than 60 counts of which he had been convicted by the International Criminal Court. Ongwen, found guilty of war crimes and crimes against humanity among others, escaped life imprisonment because of his unique personal circumstances, a reference to his childhood abduction.

Read majority judgment and dissenting on sentence

The International Criminal Court hearing the case against Dominic Ongwen, a senior officer in the Lord’s Resistance Army, had taken submissions on sentence from three different parties, each calling for a different term of imprisonment.

From the prosecution came a proposal of a total final joint sentence of ‘no less than 20 years’. The defence called for a maximum of 10 years, while lawyers representing the victims participating in the case wanted life imprisonment.

There was also a proposal by Ongwen’s defence team that he should be handed to the traditional Acholi authorities to undergo the various rituals that might be appropriate in such a case – a proposal that the judges rejected out of hand.

Schoolboy

The judgment is notable for its length – 139 pages – and for the fact that it trawled through all 61 counts on which Ongwen had been convicted, apportioning an appropriate sentence for each one. This section, the bulk of the judgment, resulted in a sentence of 20 years for a number of counts. But what should the court impose as the final, overall sentence?

At various points it seemed that Ongwen might be sentenced to life imprisonment, but he was ultimately saved from this by the extraordinary facts of his own life – that he had been abducted as a nine-year-old schoolboy and forced into the ranks of the LRA. The court said it had been impressed by his evidence and believed that he had ‘suffered greatly’, however, even that background could not outweigh the gravity of the offences he had committed.

By a majority of two to one, he was sentenced to a final sentence of 25 years, although the possibility exists that the sentence could be reconsidered in the future, depending on his behaviour and progress. Under the ICC Rome Statute, after two thirds of the sentence has been served, the court will review the sentence and decide whether it should be reduced.

Overshadowed

The judgment is worth reading to observe the court at work in its extremely difficult task of balancing the terrible crimes committed, against factors such as the tragic waste of Ongwen’s childhood. The judges said his personal background ‘by no means’ overshadowed ‘his culpable conduct and the suffering of the victims’, a point emphasised by the court ‘in the strongest terms’. However, the particular situation of his childhood abduction ‘cannot be put aside in deciding whether he must be sentenced to life imprisonment for his crimes.’ As the prosecution itself had pointed out, this was ‘one circumstance [which] sets this case apart from others tried before the court, and warrants some reduction in the sentence.’

‘It is with these considerations in mind that the Chamber has decided not to sentence Dominic Ongwen to the – exceptional – penalty of life imprisonment.’

The court also noted, but did not consider as an aggravating factor, the absence, in Ongwen’s personal submissions during the hearing on sentence, ‘of any expression of empathy for the numerous victims of his crimes – and even less of any genuine remorse – supplanted by a lucid, constant focus on himself and his own suffering eclipsing that of anyone else.’

Appeal

The court further ordered that the period Ongwen had already spent in prison in connection with the case – about six years – would be deducted from the time he was to serve in jail.

Both the prosecution and the defence have the right to appeal to the ICC Appeals Chamber, and although nothing official has yet been said by Ongwen’s legal team, observers who have closely followed the trial believe it is likely that he, at least, will appeal.

Other remaining questions include the country where Ongwen will serve his sentence. In a statement put out after the court had completed reading its decision, the ICC noted that people convicted by the ICC do not serve their sentence at the ICC detention centre in The Hague, as this facility ‘is not designed for long-term imprisonment’.

Reparations

Instead, once the appeal process is complete, the ICC, ‘having heard the views of the sentenced person, shall designate a state of enforcement from a list of states that have indicated their willingness to accept the sentenced person and have signed an agreement with the court to that effect ….’ In the meantime, however, Ongwen will remain in the ICC detention centre.

One of the last issues dealt with by the court during the sentencing session was the question of reparations. More than 4 000 victims were given the right to participate in the proceedings. Just before closing the session, the presiding judge said that the right of these victims to reparations was an essential part of the court’s system of justice, and that the court would push forward the reparation stage of proceedings ‘with vigour and the utmost care’.

The ICC’s official statement points out that if there is an appeal against conviction, and if, as a result, Ongwen were to be found not guilty, all proceedings at the court would end ‘including any reparation proceedings that had started’. If the appeal confirmed his conviction, however, the reparations’ phase ‘may continue or start’.

Carmel Rickard

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