Strathmore Law School (SLS)

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Browsing Strathmore Law School (SLS) by Author "Awene, Aska Okeyo"

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    The Application of the defense of duress and mental incapacity in relation to former adult child soldiers: a case study of Dominic Ongwen
    (Strathmore University, 2018) Awene, Aska Okeyo
    Child soldiers tend to be viewed as either victims or perpetrators. Child soldiers are seen to be victims because of the forceful recruitment and the inhumane treatment that they endure under the hands of their recruiters. They are exposed to violence; with most of them being forced to participate or witness the violent acts while being abused. exploited, injured and some even killed. 1 The act of recruiting child soldiers and using them to actively perpetuate crimes is a crime under international criminal law. 2 The view of d1ild soldiers as perpetrators is based on the fact that they have inflicted harm against members of their community and that it becomes difficult to ignore the atrocities they committed based on their status as children. The question that then arises is which of the two views is more beneficial towards attaining justice and what then would be the most appropriate defense that a former adult child soldier such as Ongwen, whose case will be discussed in the subsequent chapters, can possibly raise as an accused in the ICC. International Criminal Law requires that during the prosecution of an alleged perpetrator of war crimes and crimes against humanity, it is necessary that the prosecution proves the existence of actus reas (act) and mens rea (intent).3 In relation to former child soldiers, the challenge does not arise in proving that the act was committed but it arises in proving whether there was any intent to catTy out the prohibited act. In determining the existence of intent, it is important to examine the circumstances that surrounded the accused. This paper will argue that a former child soldier that is appearing as an accused at the International Criminal Court, can successfully plead U1e defense of duress and mental illness. To advance this argument, the paper will rely on decided cases of the lCTY and the studies of psychologists that will prove the correlation between the mental state of a person and their involvement in crime