Contextualizing Ongwen at the ICC: Underlying Narratives and the Expressivist Function of Judgments

The complexities of atrocities have long since demanded a thorough analysis of the situations and circumstances surrounding the crime. Although such analysis was usually limited to academic discourse, the reality of child soldiers forced to join rebel forces once they reach adulthood has brought up complex legal questions that need to be addressed by the courts. On the one hand, international criminal law principles afford protection to all children; however, the same principles call for the prosecution and punishment of those who are guilty of committing serious crimes. The case of Dominic Ongwen before the ICC, where the accused who was recruited as a child soldier is currently being tried for committing crimes during his adulthood, raises contentious issues regarding the forms of responsibility. The question that this chapter deals with is about the extent of the protection afforded to child soldiers and whether ICL permits the consideration of the impact of the experiences as a child soldier on future conduct. Using this case as a starting point, this paper address the core question of whether mental incapacity can be treated as a defence under Article 31 of the Rome Statute and whether sociological and psychological circumstances could be considered by the ICC. While doing so, the paper uses the case of Ongwen as a case study and considers the arguments put forth by the three parties with regard to the expert psychiatric evidence and other background evidence. Throughout, the paper keeps in mind the purpose of the Rome Statue. The author argues for a more contextual understanding of the core crimes and for a greater effort to develop international humanitarian law, particularly surrounding the issue of child soldiers.