This Child Soldier Grew Up to Become a Hardened War Criminal. Should He Go to Jail?

News broke this week of the surrender of Dominic Ongwen, a top commander in the Lord’s Resistance Army, to US forces in the Central African Republic. One of the five LRA commanders indicted by the ICC in 2005, Ongwen is also the most controversial of the Uganda indictments. While his surrender deals a serious blow to the LRA, whether the LRA’s victims will see justice remains unclear. Ongwen was a child when he was abducted by the LRA and grew up to become a notorious killer. But what are the legal and moral implications of trying a man for crimes against humanity when that man was conscripted as a child?

The most notable aspect of the conflict is the LRA’s widespread use of abducted children as child soldiers; Ongwen himself is one of these child abductees. Abducted by the LRA in 1990 at the age of 10 while walking to school, over the years he rose through the ranks of LRA, ultimately becoming one of the senior commanders of the rebel group. There is little question that he ordered and participated in the murder, rape, torture and abduction of civilians over the last 24 years but critics of his indictment also point to the physical and psychological process the LRA uses – finely tuned after decades of practice – to turn ordinary children into weapons of war.

Under international law, any acts committed by child soldiers prior to their 18th birthday are not eligible for prosecution but for those who do not escape until they are adults, the law holds them responsible for their acts regardless of how they came to be fighters. This is true for all conflicts that use child soldiers, but Ongwen’s case is the most high profile with the involvement of the highest criminal court in the world.

As a victim of the same crimes he is now indicted for, many feel Ongwen should not be held responsible at the same level as other LRA leaders. The Justice and Reconciliation Project released a report in 2008 that summed up the problems with accepting Ongwen’s responsibility while ignoring the events and trauma that led to his transformation, concluding that international justice may not be the mechanism best suited to address such a complicated narrative. That Ongwen was forced into war crimes for eight years before he gained his first leadership role at 18 does not matter legally, but sits uneasily with human rights and child soldier advocates.

It also sits uneasily with many Ugandans who still see former LRA fighters as abused children despite their criminal actions. Most surveys show Ugandans want LRA fighters to be held accountable in some way for their actions, but there is also widespread support for the blanket amnesty passed by Uganda in 2000. This may complicate things for the ICC who is already reeling from several recent developments, including the collapse of the court’s case against Kenyan president Uhuru Kenyatta and the official hibernation of the investigation into atrocities committed in Darfur. Of all the LRA commanders indicted by the court, Ongwen has always been the most contentious and raises complicated legal and moral questions with no easy answers for the court.

Politically there is also the question of how the Ugandan government will respond. Although Uganda was the first state to refer a country – itself – to the ICC in 2003, relations have soured in recent years. The involvement of the ICC became a sticking point during Juba peace talks with the Ugandan government and the LRA in 2008, as the LRA demanded full amnesty from the ICC. Although it will never be known what would have happened if the ICC agreed to suspend the cases, the collapse of the peace talks in the face of non-cooperation by the court created the appearance of the ICC choosing to prolong the conflict in Northern Uganda to preserve its own principles at the detriment of Ugandans. It also created the perfect political target for Museveni as the conflict continued.

As a result, Museveni is now one of the most outspoken critics of the court, especially regarding the court’s alleged African-bias. Last month, he declared his relations with the court over and called for a mass departure from the court by African governments, even after the ICC dropped the controversial case against Kenyatta. Even though it remains a member of the court, Uganda is in no mood to cooperate with the ICC.

Unlike with Bosco Ntaganda, the Congolese rebel leader who was turned over to the ICC after surrendering to the US embassy in Kigali in 2013, US forces opted to turn over Ongwen to Ugandan officials. That means the decision of what will happen to Ongwen will rest with Uganda, who has not confirmed that the open ICC arrest warrant against him will be honored. Instead, Uganda could choose to prosecute Ongwen in its own courts, or even grant him amnesty under the Amnesty Act of 2000.

All of this leads to numerous unanswered questions about what the surrender of the first LRA leader will mean for Uganda and the ICC as the first situation investigated by the court finally bears a defendant. As the conflict continues to drag on, gaining justice for the LRA’s victims may be possible here, but it will be far from an easy task to achieve.